Georgia Tech Procurement Assistance Center

DoD to limit use of ‘Brand Name or Equal’ contract competitions

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The Department of Defense (DoD) has proposed a new rule limiting the use of “brand name or equal” contract competitions, calling on contracting officers to publicly justify their need for a brand name-type product before issuing a solicitation.  The rule would implement Section 888(a) of the National Defense Authorization Act of 2017, which directed the Secretary of Defense to “ensure that competition in [DoD] contracts is not limited” by brand name references without a justification under 10 U.S.C. § 2304(f).

Background

Federal procurement law requires agencies to draft competitive solicitations that describe the Government’s needs generally, rather than referencing a specific type of product.  However, “under certain circumstances,” agencies may request a specific brand name product or its equal.  An off-brand product is “equal” if it shares the same the same salient characteristics as the brand name product. 

Contractors have at times challenged, through pre-award bid protests, agency decisions to reference a brand name product as unfair and unduly restrictive of competition, contrary to the Competition in Contracting Act of 1984’s (CICA) requirement for full and open competition.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/11/whats-in-a-brand-name-dod-to-limit-use-of-brand-name-or-equal-contract-competitions/

Contractor takes on Herculean task of challenging agency’s conflict-of-interest determination

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Earlier this month, the Government Accountability Office (“GAO”) sustained a bid protest challenging the agency’s decision to exclude the protester from consideration based on a potential organizational conflict of interest (“OCI”).

The GAO decision serves as a reminder that an offeror that is excluded from a competition on the basis of a perceived OCI can challenge that decision in a protest before GAO.  And although GAO will give the agency a fair amount of deference, it will nonetheless sustain a protest where it concludes that the agency’s decision was unreasonable.

In the Archimedes Global bid protest, the contractor submitted a proposal to perform services in response to a solicitation issued by the Department of Homeland Security.  The solicitation included a clause permitting the agency to disqualify the incumbent contractor from competing for follow-on work because the predecessor contract required the incumbent to have access to non-public, procurement sensitive information.  Archimedes’ proposal listed as key personnel two program managers currently working for the incumbent.  And for that reason, the agency excluded Archimedes from consideration based on the grounds that those employees could have provided Archimedes with unequal access to information.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/06/in-archimedes-bid-protest-government-contractor-takes-on-herculean-task-of-challenging-the-agencys-oci-determination-and-wins/

 

Booz Allen wins corrective action from GSA on Army software contract

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The General Services Administration must reimburse global contractor Booz Allen Hamilton for the costs of a recent bid protest due to delays in agency responses, the Government Accountability Office determined.

In a decision from its general counsel dated May 7 but released only in redacted form last week, the congressional watchdog ruled in Booz Allen’s favor in two of three provisions of its complaint against competitor Raytheon over computer resource engineering support for the Army’s Software Engineering Directorate.

The cost-plus, fixed-fee task order for the contract solicited in December 2016 was worth between $582 million and $690 million and was limited to the firms in GSA’s One Acquisition Solution for Integrated Services (OASIS) pool for indefinite-delivery, indefinite-quantity contracts. “The contracting officer, who was also the source selection authority, selected Raytheon’s proposal for award based on its total assessed value,” which was lower than that of Booz Allen, the ruling noted.

Keep reading this article at: https://www.govexec.com/contracting/2018/06/booz-allen-wins-corrective-action-gsa-army-software-contract/148906

Contractors oppose proposed limit on federal bid protests

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As the Senate Armed Services Committee last week began its markup of the fiscal 2019 National Defense Authorization Act, a contractors group was pushing committee leaders to reject a Pentagon proposal to curb time-consuming bid protests.

Seeking to eliminate what some senators call “frivolous” protests and what acquisition officials call “forum shopping,” the Defense Department this spring pressed for limiting the ability of contractors who unsuccessfully sought an award and are rejected by the Government Accountability Office to then continue their protest at the Court of Federal Claims. The plan would limit the so-called “second bite at the apple” in the court to within 10 days of knowing (or when they should have known) they had the basis for a protest.

Keep reading this article at: https://www.govexec.com/contracting/2018/05/contractors-oppose-proposed-limit-federal-bid-protests/148368/ 

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

Pentagon seeks to limit bid protests in federal court

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The Defense Department is proposing legislation to impose new constraints on government contractors’ ability to protest federal agencies’ award decisions, including by rolling back their rights to file bid protests in federal court.

Currently, companies who believe an agency mishandled a contract award have two independent forums to file protests: the Government Accountability Office and the U.S. Court of Federal Claims (COFC). But some firms opt to take their cases to both.

If, for example, GAO denies or dismisses their protest, they still have the right to file a new claim at the COFC.

DoD’s proposal would essentially eliminate that option by requiring contractors to bring cases to COFC within 10 days of the agency’s award decision: the same deadline used by GAO. Since GAO has up to 100 days to sustain or deny a protest, a company could not wait and use the court as a backstop if it loses its case at GAO.

Keep reading this article at: https://federalnewsradio.com/defense-main/2018/05/pentagon-seeks-to-limit-bid-protests-in-federal-court/

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/

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

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