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In government contracting, offerors are regularly evaluated in their proposed approaches to meet solicitation requirements. Occasionally, an offeror’s proposed solution is immaterial, as the offeror’s overall ability to perform the work required by a solicitation is called into question.

Whether it is inadequate financial resources, an inability to meet delivery schedules or an inability to obtain a security clearance, some offerors fail to meet general criteria of responsibility required to perform. Generally, the procuring agency can eliminate an offeror based on a determination of nonresponsibility. However, small businesses are provided a little cover.Continue Reading Learning from Bid Protests: Responsibility vs. Acceptability

On October 20, Law360 published an article that I authored titled “A Large Loophole in the Ostensible Subcontractor Rule.” In the article, I analyze a contractor’s ability to file an ostensible subcontractor size protest under a task order award, as addressed in two recent cases (Strata-G Solutions and U.S. Information Technologies Corp.) before the Small…

The general rule regarding late proposals is that offerors are responsible for ensuring that their proposals reach the designated location by the time stated in the solicitation. A late proposal will not be considered unless it falls under a recognized exception in the Federal Acquisition Regulation (FAR) or common law. One exception in the FAR allows for acceptance of a late proposal where some emergency or unanticipated event interrupted normal Government processes preventing it from being delivered on-time. FAR § 52.212-1(f)(4).

This particular exception was addressed recently by the Court of Federal Claims, in which the Court examined the scope of the interruption of “normal Government processes” exception.  In Global Military Mktg v. United States, No. 14-622C, (Williams, J.)(Sept. 29, 2014), the Plaintiff encountered a rather unique and unfortunate situation regarding the delivery its proposal. The Plaintiff attempted to use FedEx to make its delivery, however the region in which Plaintiff (and the FedEx facility) was located experienced a “historic rainfall event,” which caused the FAA to restrict traffic at local airports.Continue Reading Learning from Bid Protests: With Late Proposals, Government Caused Delays only Matter at Agency Location

The government contracting industry is extremely competitive, which is not a surprise given the $500+ billion dollars in federal procurement spending up for grabs each year. This competition certainly gives government contractors ample incentive to seek out any useful information that may provide even a small advantage in their procurement activities. Bid protest decisions can be one such source of useful information, often providing valuable insight into the procurement process.

One bid protest decision may focus on a contractor’s mistakes which led to its proposal being rejected from competition, serving as a how-to-guide of sorts showing contractors what not to do. Another bid protest decision may instead highlight errors made by the agency, giving contractors a blueprint of what agency actions/inactions to look out for in their own procurements that may lead to sustainable protests. Whatever the issue, knowledgeable contractors can utilize this information to avoid missteps and properly protect their interests in the potentially lucrative government contracting space.

Another useful aspect of bid protest decisions is that some decisions, while pointing out avoidable defects in proposals, can also shine a light on obscure rules and regulations which may open up contracting avenues not otherwise considered. GAO released a bid protest decision last week which may provide an example of this notion.Continue Reading Learning from Bid Protests: Non-GSA Contract Holders Can Submit Offers Through a Contract Holder—If They Follow the Rules

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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