In best value procurements, the procuring agency generally has a great deal of discretion in selecting which proposal represents the best value to the government. Part of that discretion is the ability to select a proposal that is higher in price, and higher rated technically, than the competition. However, an agency cannot simply select a higher-priced offeror without considering the benefits of the higher-priced proposal and documenting why its technical superiority warrants paying the higher price.

This issue was at play in a recent GAO protest, DKW Communications, Inc. The solicitation in question here was issued by DARPA for various unclassified information technology services and support under GSA’s Alliant Small Business Government-wide Acquisition Contract. The solicitation contemplated the award of a single cost-plus-award-fee task order to the offeror representing the best value to the government.

Because the awarded contract was going to be cost based (as opposed to fixed-price), the agency determined each offeror’s probable cost based upon their proposed approach. To the extent an offeror’s proposed cost differed from its probable cost, the agency considered that difference to be the “Cost Risk.” In making its best value determination, the agency considered each offeror’s technical rating, past performance rating, and cost risk. After its initial evaluations, the agency narrowed its consideration of award down to three offerors. The agency ultimately selected Agile Defense, Inc., whose proposal was higher-rated and higher-priced than the other two offerors under consideration.Continue Reading Learning from Bid Protests: Award to Higher-Priced, Higher-Rated Proposal Requires Consideration and Documentation

A bill to revise certain provisions of Tennessee’s procurement code has been introduced in both the House and the Senate of the Tennessee General Assembly. The bill comes from the central procurement office with the Governor’s support and is expected to pass rather quickly. The legislation, if passed by both houses and signed by the…

Putting together a strong team for the pursuit of a government contract is a key component of modern government contracting. A team with the right mix of skills and experience will bolster a prime contractor’s chance of receiving an award, but building the team is only half the battle. Fully utilizing the breadth of experience provided by all key members of the team can mean the difference between success and disappointment. One way to utilize the strength of the team is to submit the relevant past performance of key subcontractors in a proposal.

The use of a subcontractor’s past performance recently was challenged in a bid protest before GAO. In Al-Razaq Computing Services, a disappointed offeror challenged the agency’s evaluation of the awardee’s past performance. In Al-Razaq, the awardee was a joint venture. As part of its past performance submission, the awardee joint venture submitted one contract for one of the joint venture partners, and two contracts for its subcontractor, Booz Allen. The protester argued that the agency improperly credited the awardee joint venture with the past performance of Booz Allen. GAO rejected this argument and denied the protest.Continue Reading Learning from Bid Protests: Generally Okay to Utilize Subcontractor Experience

Solicitations for government contracts come with all manner of terms, specifications, requirements, etc. But one feature that is certainly common to all solicitations is the deadline for submission. No matter the procurement, the solicitation will establish a time and date by which all proposals must be received. Not surprisingly, it is the responsibility of the offeror to make sure the proposal is received by the agency prior to the deadline. A late proposal typically means a rejected proposal, so adhering to the deadline is of utmost importance. After all, you can’t win if you’re not in the game.

It is important to recognize the difference between submission and receipt. Modern solicitations provide for various acceptable methods of submitting a proposal, e.g., mail, hand-delivery, email, etc. Each method of submission comes with its own challenge that must be considered by the offeror in order to ensure the agency actually receives the proposal on time. Proposals to be submitted via email may sometimes lag due to large attachments. Couriers are sometimes delayed getting entrance onto a government installation. And sometimes, government agencies utilize mail sorting facilities which add delays to the delivery process.Continue Reading Learning from Bid Protests: When Delivery Doesn’t Actually Mean Receipt

This week, the Government Accountability Office (GAO) released its annual Bid Protest Report for Fiscal Year 2014. GAO is required by the Competition in Contracting Act to submit this annual report to Congress. The report contains some information which may be of interest to contractors, particularly the bid protest statistics.

According to GAO, while the number of bid protests filed increased 5% versus FY2013, the number of sustained decisions decreased quite a bit. From FY2010 through FY 2013, GAO sustained an average of 17.7% protests. The number of sustained protests fell sharply in FY2014, as less than 13% of cases were sustained.Continue Reading GAO Releases Annual Bid Protest Report: Corrective Actions on the Rise?