Georgia Tech Procurement Assistance Center

Establishing prejudice in an LPTA protest

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Low-priced, technically acceptable procurements (LPTA) shine a light on a contractor’s ability to provide the required services at the lowest possible cost to the government.

Leave your style points at home.  It is all about getting lean to win the award.

But when the evaluation is that simple, is there any room to challenge an LPTA award decision?

The answer is Yes — and a recent GAO protest offers some important insights into best practices.

The protest concerned an Air Force contract to provide tactical recovery kits.  Covering both LPTA bases, the protester argued that the agency:

  1. Unreasonably found the awardee technically acceptable, and
  2. Conducted inadequate discussions concerning price.

Keep reading this article at: https://governmentcontracts.foxrothschild.com/2018/08/articles/bid-protests/establishing-prejudice-in-a-lpta-protest

GAO: Agency closing time is 4:30 pm, not 5:00 pm

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Unless an agency designates different business hours, the Federal Acquisition Regulation (FAR) says that a government agency is deemed to close at 4:30 p.m. local time–not 5:00 p.m., as it would be easy to assume.

In a recent case, the 4:30 p.m. closing time cost an unsuccessful offeror a chance at a GAO protest because the offeror’s debriefing request, sent to the agency at 4:59 p.m., was deemed untimely.

The GAO’s decision in Exceptional Software Strategies, Inc., B-416232 (July 12, 2018) involved an NSA solicitation seeking to award up to six IDIQ contracts for the definition, prototyping, development, and production of visualization and presentation tools.  Thirteen offerors, including Exceptional Software Strategies, Inc., submitted initial proposals.

The evaluation panel determined that ESS’s proposal was unacceptable under one of the non-price factors.  On Thursday, March 15, 2018, NSA informed ESS that its proposal had been excluded from the competitive range.  The letter explained that ESS had been found unacceptable, and the reasons why.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/gao-agency-closing-time-is-430-p-m-not-500-p-m/

New rules for filing protests at GAO and new DFARS debriefing requirements

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The Government Accountability Office {GAO) finally has unveiled its long-awaited Electronic Protest Docketing System (EPDS).

Effective May 1, 2018, all new protests (excluding those containing classified material) must be filed using GAO’s EPDS.

In addition, the National Defense Authorization Act (NDAA) for 2018 enhanced debriefing requirements for all contract and task order awards valued at $10 million or more. Under the new rules, contracting officers must provide unsuccessful offerors an opportunity to submit additional questions related to the debriefing within two business days after receiving the initial debriefing. The agency then has five business days to respond after receipt of the questions.

See details on both of these new requirements at: http://www.mondaq.com/article.asp?articleid=697940

GAO bid protests must be submitted online starting in May

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Vendors that don’t like the results of a contract award will have to go online to take up their beef up with the Government Accountability Office (GAO) starting next month.

GAO on Thursday announced its plans to launch the electronic bid protest docketing system, a web portal where groups can securely file protests to federal contract awards. Vendors will be required to submit all new protests through EPDS beginning May 1.

“This new system modernizes the bid protest process at GAO and will make it a much more efficient process,” said Comptroller General Gene Dodaro, who heads the congressional watchdog agency, in a statement.

Keep reading this article at: http://www.nextgov.com/it-modernization/2018/04/all-bid-protests-must-be-submitted-online-starting-may/147257/

The Government Accountability Office’s (GAO) new Bid Protest Regulations, effective May 1, 2018, are at: https://www.federalregister.gov/documents/2018/04/02/2018-06413/government-accountability-office-administrative-practice-and-procedure-bid-protest-regulations

Contractors face changes to bid protest strategies

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The National Defense Authorization Act (NDAA) for fiscal year 2018 includes some significant changes affecting contractors, particularly with regard to challenges to requests for proposals and contract awards, otherwise known as “bid protests.”

The key bid protest changes in the new NDAA are: the introduction of a new pilot program under which large defense contractors will be required to pay the Defense Department’s costs where a protest is denied; and the enhancement of post-award debriefing rights.

While Congress passed the former with the intent of reducing frivolous protests, it is likely the latter — which will give contractors greater insight into the rationale behind procurement decisions — that will have a greater impact on the number of protests filed.

Section 827 of the act requires that the department establish and implement a three-year pilot program under which “large” defense contractors will be required to reimburse the department for “costs incurred in processing covered protests” for protests “denied in an opinion” by the Government Accountability Office.

Keep reading this article at: http://www.nationaldefensemagazine.org/articles/2018/3/6/contractors-face-changes-to-bid-protest-strategies

Five factors for proposal evaluation: Creating bids that will survive a protest

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Submitting the winning bid is an exhilarating feeling, dimmed only by the following days, as the offeror waits to hear if others may file a protest.

Once a protest is filed, offerors options are limited.

One option that is available to offerors, but often ignored is the right to hire qualified counsel to represent their interests.  Government contract attorneys are in a unique position, in that, while they are ethically obligated to protect their client’s interests, they are prohibited from discussing certain information with their clients.  This frustrates offerors, and limits an attorney’s opportunities to provide valuable information about how things might have been different, had the offeror only done something different.

Keep reading this article at: https://www.bidprotestweekly.com/five-factors-for-proposal-evaluation-creating-bids-that-will-survive-a-protest/

$17.5 billion defense IT contract award survives four protests

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The 20 companies awarded a place in November on the Defense Information Systems Agency’s $17.5 billion IT services contract, ENCORE III, will get to keep their spots, the agency recently announced.

The award survived protests from Data Systems Analysts, NCI Information Systems, Peerless Technologies Corporation and Planned Systems International. The companies filed their protests with the Government Accountability Office in November; all four were dismissed on Feb. 21.

The protest decisions from GAO are under a protective order and awaiting redaction before being released to the public.

See the names of the 20 companies and keep reading this article at: http://www.nextgov.com/it-modernization/2018/03/175-billion-defense-it-contract-awards-survives-four-protests/146738/

November 2017 bid protest roundup

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This roundup of interesting bid protest decisions issued in November 2017 highlights two decisions, both at the Government Accountability Office (“GAO”).

The first reminds contractors that competitors can work together when failing to do so will result in bad procurement precedence that will cause them future competitive harm.

The second reminds contractors that it may be ill advised to rely on industry day materials, especially if marked that they are subject to change.  This decision also shows that, between an original contract and a bridge contract, the original contract is more important in the Small Business Administration’s analysis of whether the award of an 8(a) contract will harm a small business.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=654514

5 companies protest Alliant 2 contract — so far

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Several companies are protesting the Alliant 2 contract awards made earlier this month by the General Services Administration.

Thus far, Capgemini Government Solutions, Harris IT Services Corp., Compuline International,Kratos Technology & Training Solutions and The Centech Group have filed protests with the Government Accountability Office.

Washington Technology first reported the protests, which could mount in the coming days. More than 160 companies bid on the 5- to 10-year contract that federal agencies will use to purchase next-generation networking and other technologies, but GSA only made 61 awards.

Companies have up to ten days following a GSA debriefing to file a protest.

Keep reading this article at: http://www.nextgov.com/emerging-tech/2017/11/5-companies-protest-alliant-2-contractso-far/144156/

Latent ambiguities and non-apparent solicitation defects

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Having discussed protest grounds you cannot or should not raise ( here and here), we turn now to the first in a series of grounds that could result in a sustained protest: Latent Ambiguities and Non-Apparent Solicitation Defects.

We’ve previously noted the rule that, to challenge the terms of a solicitation, a protester generally must do so before the date set for receipt of proposals.  This rule is designed to prevent companies from rolling the dice on a bid and then, after they lose, complaining to the GAO about how messed up the solicitation was.  If an offeror submits a proposal against a solicitation it thought was unfair, unclear, or otherwise defective without first objecting, the GAO (and the Court of Federal Claims, for that matter) won’t show any sympathy in a post-award protest.  That’s what pre-award protests are for.

There is, however, an important exception to this rule.  The GAO’s regulation on protests due before the time set for receipt of proposals applies only to “[p]rotests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals [or revised proposals, for apparent improprieties introduced by an amendment].”  4 C.F.R. § 21.2(a)(1) (emphasis added).  If a solicitation impropriety is not “apparent” until after proposals have been submitted, then the 10-day timeliness clock applies instead.  4 C.F.R. § 21.2(a)(2).

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=634686

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