Protest deadline not met because debrief not required

Yet another unwary government contractor has been turned away by GAO because it failed to file its protest on time. Unsuccessful offerors that contest evaluation issues (rather than solicitation defects) have 10 days to file protests at GAO.

GAO-GovernmentAccountabilityOffice-SealThat generally applicable 10-day deadline is tolled when a “debriefing” is required in FAR Part 15 (and certain Part 16) procurements. But that tolling rule doesn’t apply when the FAR only requires that the agency provide an “explanation” to disappointed offerors (e.g., in FAR Parts 8, 12, and 13 procurements)—and does not mandate a “debriefing.” GAO’s decision in Gorod Shtor illustrates this rule by dismissing the protest of an offeror that fell into this bid protest trap.

Gorod Shtor wanted to sell drapery making and installation services for the U.S. embassy in Moscow. Gorod Shtor submitted a proposal for an IDIQ contract with the Department of State. Importantly, the RFQ was issued as a commercial item acquisition (under FAR Part 12) in which simplified acquisition procedures were applied under FAR Subpart 13.5. Award was to be made on a lowest-priced, technically acceptable basis.

The Agency’s award notice informed the disappointed offeror that the contract was awarded to a competitor, which Gorod Shtor believed did not meet certain RFQ requirements. The notice also stated “[i]f you desire a debriefing, please refer to FAR [] 52.212-1(l)” which lists the types of information to be provided by a debriefing but does not create a right to a debriefing. Gorod Shtor requested a debriefing and was informed of “the reasons why the agency had found the vendor to be technically unacceptable.”

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NC toll road moves ahead with contractor guilty of fraud

North Carolina transportation officials are pushing ahead with an embattled toll road outside Charlotte, even after a politically connected paving contractor involved in the $840-million project pleaded guilty last year to defrauding taxpayers.

NCDOTThe state Department of Transportation announced Thursday construction had begun on the Monroe Expressway, a 20-mile highway in Union County. The project, which had been stalled for years by a lawsuit over its environmental impact, is being built by a joint venture of three companies.

One of those firms, Boggs Paving Inc. of Monroe, pleaded guilty to conspiracy in September in what federal prosecutors described as a bid-rigging and kickback scheme involving nearly $88 million in government highway construction contracts between 2003 and 2014. Company president Carl A. “Drew” Boggs III is awaiting sentencing after pleading guilty to conspiracy and money laundering. He faces up to 25 years in prison and $500,000 in fines.

Despite that, the three-company consortium, Monroe Bypass Constructors LLC, has been paid $6.8 million by the state during the eight months since the guilty pleas were entered, according to N.C. Department of Transportation spokesman Mike Charbonneau. In addition, Boggs Paving has been paid $108,290 since September for two other road projects.

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Federal contract spending fell 3.1 percent in 2014, study finds

Despite an overall hike in government spending in 2014, federal contract spending last year fell by $14.5 billion or 3.1 percent, according to the latest annual federal industry leaders study from Bloomberg Government, released on Friday.

Budget Versus Contract Obligations

But the good news for industry is that last year “may have represented the dawn of a new normal in the federal marketplace: contract spending was down following the drawdown in Afghanistan and Iraq, but greater budget certainties allowed greater planning and projections,” the analysts noted.

The drop in Pentagon spending was partially offset by a $1 billion hike in spending by the Health and Human Services Department. HHS spent about a billion more last year on services to medical providers.

Technology Spending Increases

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Modified BPA for security products coming from GSA within 30 days

Continuous Diagnostics and MitigationThe General Services Administration (GSA) will move the continuous diagnostics and mitigation (CDM) acquisition vehicle into its second phase within the next month by issuing modifications to the blanket purchase agreement, a GSA official said June 2.

The CDM vehicle, which has a $6 billion ceiling, is one of the prime federal tools for defending civilian networks that are under siege daily from hackers.

CDM Ordering Guide - GSA 2015Whereas Phase I of CDM is giving agencies tools to detect what devices are on their networks, Phase 2 will focus on better identifying who is on those networks. Thus, security products for identity management and network boundary protection will be in the offing from vendors during Phase 2.

The third phase, to come at an undetermined date, will delve further into boundary protection and tackle incident response.

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Redstone Arsenal contracting officer to plead guilty to obstructing federal audit

A Huntsville, AL woman employed by the U.S. Army Contracting Command at Redstone Arsenal has agreed to plead guilty to a charge of obstructing a federal audit, the U.S. Attorney’s Office in Birmingham said last week.

Redstone ArsenalTeresa Mayberry, 54, agreed to plead to one count of obstructing an audit in 2012 by the Department of Defense Inspector General’s office related to a federal contract for providing parts to Russian-made helicopters to be flown in Afghanistan.

The U.S. Attorney’s Office described the charge in a news release.

“Mayberry created a series of false documents that she provided to (the IG) to obstruct its 2012 audit of an Army contract to purchase parts for Russian-made Mi-17 helicopters.”

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Read charges here: mayberry-charges

Read plea deal here: mayberry-plea

GAO: Agency need not raise offeror’s high price in discussions

When an agency decides to hold discussions with offerors, must it discuss with an offeror the price proposed for the contract? Not unless that offeror’s proposed price is so high as to be unreasonable.

GAO-GovernmentAccountabilityOffice-SealAs the GAO held in a recent bid protest decision, unless an offeror’s price is so high as to make its proposal unacceptable, the offeror is not entitled to be informed during discussions that its price is too high–even if the price is significantly higher than competitors.

The GAO helped shed light on this issue in Joint Logistics Managers, Inc., B-410465.2, B-410465.3 (May 5, 2015). There, the United States Marine Corps issued a task order RFP seeking “Care of Supplies in Storage” services in Albany Georgia, for one base year and one option year. The award was to be made on a best-value basis, considering technical approach, past performance, and price. Price was considered significantly less important than the combined non-price factors; but, price would become increasingly more important if proposals were considered technically equal or if an offeror’s price was so high as to diminish the value of any technical superiority.

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Skeptical Senate chairman asks SBA for list of every contractor it counted as a small business

A Senate chairman has asked the Small Business Administration to provide him with a list of every company that was counted toward the federal government’s small business contracting goal in 2014.

Last year, the SBA reported the government had met its goal of awarding small businesses 23 percent of all federal contracting dollars for the first time in eight years.

Senate Committee on Small Business and Entrepreneurship

“We’re expecting even better results when we release the 2014 scorecard in the coming weeks,” SBA Administrator Maria Contreras-Sweet said May 8, during a White House event honoring National Small Business Week award winners.

But a report by Public Citizen (see questioned the accuracy of the SBA’s procurement report for 2013. It found that contracts awarded to giant federal contractors such as Lockheed Martin were counted as small businesses in the SBA’s numbers. This is just the latest example of flaws in the SBA’s contracting data though the years.

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SBA wants to know how ‘big data’ affects small business

The Small Business Administration is trying to figure out where big data meets small business.

SBA logoWhile large businesses have been using large volumes of data to make better business decisions, “with greater access and availability of cost-effective technology, small businesses are doing the same,” according to a recent solicitation for research.

For instance, small businesses and retailers can use online transaction history, analyzed in aggregate, to make decisions about sales and marketing programs, better understand customer behavior and predict the number of staffers they’ll need, according to SBA.

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For federal IT vendors, a lot to like in House, Senate Defense bills

From the perspective of federal technology companies, there’s a lot to like in this year’s House and Senate Defense authorization bills. Indeed, a leading industry group’s main complaint is that the acquisition reforms in the legislation only apply to DoD — not the rest of the government.

House Armed Services CommitteeWhile the leaders of both the House and Senate armed services committees say they’re taking an incremental approach to acquisition reform in their respective versions of this year’s Defense authorization bill, the Senate version, released last week, appears to try to achieve more change within a single year.

The measure tackles everything from the role of the military service chiefs in procurement decisions to the acquisition workforce and establishing new “alternative” pathways to buy goods and services and pressing the Defense Department to make more use of commercial technology.

In a briefing with reporters Wednesday, May 27, the IT Alliance for Public Sector (ITAPS), a lobbying group and association for federal IT contractors, said it had no substantive disagreements with any provisions in either of the Defense bills — an extremely rare occurrence for any advocacy group with interests in the huge, annual National Defense Authorization Act (NDAA).

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Sorry, subcontractor: No SBA size appeal for you

When the SBA found a subcontractor to be affiliated with its prime contractor under the ostensible subcontractor rule, the subcontractor could not appeal the SBA’s finding to the SBA Office of Hearings and Appeals.

SBA sealIn a recent size appeal decision, OHA held that a subcontractor lacks the ability to file a size appeal because the subcontractor is not directly affected by the size determination.

OHA’s decision in Size Appeal of Doss Aviation, Inc., SBA No. SIZ-5648 (2015) involved a Department of Defense set-aside solicitation.  After award was made to Hughes Group LLC, the SBA Area Office conducted a size determination.  The SBA Area Office determined that Hughes Group was not an eligible small business due to affiliation with a large subcontractor, Doss Aviation, Inc., under the ostensible subcontractor affiliation rule.

Doss Aviation filed a size appeal.  OHA responded by asking Doss to explain why, as a subcontractor, it had standing to file a size appeal.  OHA directed Doss to previous OHA size decisions, in which OHA held that an alleged affiliate, whose own size was not at issue in the size determination, has no “direct stake” in the outcome of a size appeal, and thus lacks standing to initiate a size appeal.

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