Bid Protests

Bid protests are a ubiquitous part of government contracting, basically considered part of the normal procurement process. While bid protests can be filed at either the procuring agency level or at the U.S. Court of Federal Claims, the majority of bid protests are filed with the Government Accountability Office (GAO). Recently, on April 15, 2016, GAO released a proposed rule that will make several significant changes to their bid protest process. These proposed changes clarify some elements of the process, while at the same time raise several questions about how these new rules will affect protesters moving forward.
Continue Reading GAO Proposes Significant Changes to its Bid Protest Process

I provided further analysis of my January 5, 2016 blog post in a Law360 article. Both the article and blog post outline some of the common mistakes contractors make in their proposal process that create issues preventing them from receiving an award.

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I recently spoke on a panel in which we covered some of the common mistakes contractors make in their proposal process that create issues preventing them from receiving an award. One of the topics discussed was the importance of strictly following the instructions of a solicitation in preparing and submitting your proposal. Contractors are always seeking an edge to differentiate themselves from the competition. Differentiation in the form of a snazzy graphic, or some truly innovative solution will rarely get a contractor into trouble. However, this quest to stand out could sometimes result in a contractor trying so hard to be clever in its reading of the solicitation that it ends up only outsmarting itself, and potentially jeopardizing its opportunity to win the award.

This appears to have been the case in a recent decision issued by GAO in LOGMET LLC, B-412220.2, December 23, 2015. LOGMET LLC involved a solicitation issued by the Army for logistics services at Fort Rucker, Alabama and Eglin Air Force Base, Florida. The protest involved a challenge to the Army’s decision to eliminate the protester from the competition on the basis of a non-compliant proposal. At issue was the cost/price matrix submitted by the protester, and whether it conformed to the solicitation’s requirements.Continue Reading Learning from Bid Protests: Deviate from Solicitation Instructions at Your Own Risk

At the close of each fiscal year, the U.S. Government Accountability Office (GAO) is required by the Competition in Contracting Act of 1984 (CICA) to submit a report of the bid protests before the GAO. A significant number of protests filed do not reach a merit decision due to voluntary corrective action. Because agencies are not required to report any reasons for voluntary corrective action, these yearly reports are particularly helpful in analyzing trends and concerns for contractors. Highlights from the FY2015 report:

The sustain rate has been declining since the 18.6% reported in FY2012; in FY2015 there were only 68 sustains out of the 587 merit decisions (12%). In FY2014, there were 72 sustains out of 556 merit decisions (13%). However, the number of cases filed has steadily increased since the 2,429 cases filed in FY2013, with 2,639 filed in FY2015.

About 13% of the cases closed this year were task or delivery order protests under IDIQ contracts, of which GAO has exclusive bid protest jurisdiction for challenges to task or delivery orders greater than $10 million. Almost 12% of closed cases in FY2014 were attributed to task or delivery orders.Continue Reading Failure to Follow Evaluation Criteria Remains Among Top Reasons for Sustained Protests

The Government Contracts team recently represented Ed Medical, Inc., a Tennessee-based full service home medical supply provider, in a successful bid protest at the U.S. Government Accountability Office (GAO). For the past 11 years, Ed Medical has been providing home oxygen services for the Veterans Administration (VA). Ed Medical’s VA contract covers Region 9 of…

Our government contracts team successfully defended an award to CWU, Inc. of a $143 million task order by the Department of the Army, U.S. Army Intelligence and Security Command (INSCOM) for linguist support services. The task order was issued under the Defense Language Interpretation and Translation Enterprise (DLITE) contract, which is a five-year, $9.7 billion Multi-Award Task Order Contract that provides interpretation and translation services DOD-wide at a variety of security levels.

The cost-plus-fixed-fee task order, which has a one-year base period and two one-year options, is for linguist, interpretation and translation support services to intelligence operations in order to meet ongoing mission requirements for the U.S. Central Command (CENTCOM), European Command (EUCOM) and African Command (AFRICOM). The Army first selected CWU for award in November 2014. SIG, the incumbent contractor, protested that award and the agency took corrective action in December 2014. INSCOM affirmed its original award decision in March 2015 and SIG again protested.Continue Reading Bass, Berry & Sims Defends Award in GAO Bid Protest of $143 Million Task Order

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

Government contractors are always hunting for the next contract opportunity. Upon finding a promising solicitation, a contractor might first examine the performance requirements to answer the initial questions of “is this something we can do,” and “is this something we can win?” Reviewing the solicitation to address these questions is an important endeavor. However, before the contractor moves on to the often chaotic and frenetic stage of preparing a solicitation response, it would be wise to first take a beat and carefully read the Federal Acquisition Regulation (FAR) clauses incorporated into the solicitation.

The FAR clauses incorporated into a solicitation often contain administrative requirements, such as compliance and certification, that must be met by the contractor. These FAR requirements may come to bear in either the contractor’s response to the solicitation, the ultimate performance of the contract, or both. Either way, it is important that a contractor thoroughly review and fully understand the incorporated FAR clauses before beginning its response to the solicitation. Failure to do so can present all manner of problems down the road.Continue Reading Learning from Bid Protests: The Importance of Understanding Incorporated FAR Clauses

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

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

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