Georgia Tech Procurement Assistance Center

Beware of the automated email response

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Don’t rely on an out-of-office notification to keep you in the competition.  The U.S. Government Accountability Office’s (GAO) recently-published decision in Ortho-Clinical Diagnostics, Inc., B-418946, Oct. 23, 2020, 2020 CPD ¶ 331, illustrates the dangers of relying on an automatic out-of-office notification when communicating with the Government during an ongoing procurement.

Ortho-Clinical Diagnostics (Ortho) protested an award at GAO of a Navy contract for laboratory systems.  The Navy opened discussions with all vendors after receiving five quotations but finding none was technically acceptable.  On May 7, 2020, the Navy contracting specialist emailed a discussions letter to Ortho’s contract manager, who was the point of contact listed in Ortho’s quotation for all correspondence regarding the quotation.  In addition to identifying issues in Ortho’s original proposal, the email informed Ortho that it must submit a revised proposal no later than 2:00 PM on May 15, 2020.  The Navy never received a response from Ortho and concluded that Ortho had removed itself from the competition.  Ortho did not learn of the emailed discussions letter until receiving its post-award debriefing.

Continue reading at:  Wiley

Federal Circuit clarifies bid protest stay timeliness rules

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[Pillsbury] previously [has] discussed (here and here) the “enhanced debriefings” that DoD agencies have instituted for procurements conducted under Part 15 of the Federal Acquisition Regulation (FAR).  These rules provide that a DoD agency “shall not consider the post-award debriefing to be concluded until the agency delivers its written responses to the unsuccessful offeror” and the “agency shall comply with the requirements of FAR 33.104(c) regarding the suspension of contract performance.”  FAR 33.104(c), in turn, echoes the requirements of CICA, 31 U.S.C. § 3553(d)(4)(A), which provides that a protester is entitled to an automatic stay of performance if its protest to GAO is filed within the later of two dates: (1) “the date that is 10 days after the date of the contract award”; or (2) “the date that is five days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required.”

Last year, [Pillsbury] covered the decision of the COFC in NIKA Technologies, Inc. v. United States, 147 Fed. Cl. 690 (2020), which held that, for procurements subject to DoD rules, the five-day filing clock to obtain an automatic stay of performance under CICA will not start running until two business days after a disappointed offeror receives its post-award debriefing.  On appeal, the Federal Circuit reversed, holding that the five-day countdown begins to run [“on the debriefing date, rather than two days later.”].

Continue reading at:  Pillsbury

Contractors should use the Q&A process strategically and consider spec challenges

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“I don’t want to do that because it will just upset them and they’ll make sure I don’t win.”  This is a common concern I hear from clients when I help them review solicitations (invitations to bid (ITB), requests for proposals (RFP), or invitations to negotiate (ITN)) and draft their offers.  But, this fear of “rocking the boat” is usually unfounded.  This is why I frequently advise clients who hire me to help draft proposals to stick up for themselves by submitting “strategic” questions or filing “spec challenges,” which are bid protests challenging the terms of an solicitation.

Continue reading at:  JD Supra

Agency protests: An emerging tool and potential threat for contractors

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In May 2018, the Government Accountability Office (“GAO”) implemented a $350 filing fee for bid protests.  There are differences of opinion regarding why GAO implemented the fee.  GAO publicly states that the fee was implemented to cover the costs of its new Electronic Protest Docket System (“EPDS”).  Many, however, believe the fee was implemented to deter the filing of frivolous protests.  Regardless, there “may” be an unintended consequence of the protest filing fee—an increase in agency-level protests.  Recently, several agency contracting officers have stated that they are handling more agency protests, and, in their opinion, it is a direct result of GAO’s protest filing fee.  As a result, contractors should understand and be prepared to mitigate the risk of agency protests to protect their contracts and position themselves for new ones.

Pros and Cons of Agency Protests

Beyond not having to pay a filing fee, there are pros (and cons) to filing an agency protest as opposed to a protest at GAO.  Unlike at GAO, in agency protests, the agency is not required to file an agency report or produce documents; thus, there is no opportunity to review the agency’s decision-making process or file a supplemental agency protest.  And, at the agency level, a protester does not get the opportunity to file Comments (i.e., rebut the agency’s legal position) on the agency’s report like it would get at GAO.  As a result, a protester’s legal bills will be lower with an agency protest and you may receive an agency protest decision faster than at GAO (35 days vs. 100 days).  Also, some believe filing an agency protest is favorable in terms of client relations.  When you file a protest you essentially are suing your client or potential client.  An agency protest is not a public filing like a protest filed at GAO.  Thus, some believe a contractor benefits by filing an agency protest and not publicly airing an agency’s so-called dirty laundry at GAO.  Finally, with one important caveat, an agency protest could be useful if a protester intends to elevate the protest to GAO or the Court of Federal Claims.  Federal Acquisition Regulation 33.103 requires an agency to provide agency-protest decisions that are “well-reasoned, and explain the agency’s position.”  If a protester receives an unfavorable agency-protest decision, the protester can use the information obtained from the decision to strengthen its arguments at GAO or the Court of Federal Claims.  However, a contractor should keep in mind that, if its agency protest is unsuccessful, an automatic stay will not be available at GAO.

Continue reading at:  BlankRome

GAO: Past performance should relate to solicited services

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Past performance is an important evaluation factor in many solicitations.  Essentially, it allows an agency to guess as to the likelihood of an offeror’s successful performance under a solicitation by looking to its history of performance on similar projects in the past.

GAO recently confirmed it is “axiomatic” that past performance examples should align with the solicitation’s requirements.  If an offeror submits unrelated examples, it risks a downgraded past performance score.

Continue reading the article at: SmallGovCon

The topsy-turvy world of state and local bid protests

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Many contractors are familiar with the well-established processes of federal bid protests.  Less known is the dizzying variety of procedures applicable to state and local bid protests.  Each jurisdiction has its own rules — in terms of timing, protestable issues, standard of review, document production, and more.  A fundamental tenet in one jurisdiction may be completely inapplicable in another.

What does that mean for a contractor looking to grow its state and local business?

Be prepared:  Become familiar with the rules and practices for bid protests in the relevant jurisdiction prior to the award decision.  When the award decision is made, you’ll be in a better position to assess whether to protest and, if so, when and how to do it.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/04/the-topsy-turvy-world-of-state-and-local-bid-protests/

2018 bid protests: Strong success rate at GAO continues while protest numbers spike in court

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Protesters remained active and fairly successful in their challenges to agencies’ procurement actions at the Government Accountability Office (GAO) in 2018, while protests at the Court of Federal Claims spiked.

According to Ralph White, Managing Associate General Counsel for Procurement Law at GAO, presenting at West’s Government Contracts Year In Review Conference, the number of protests at GAO held steady, despite the mid-year implementation of a $350 filing fee. A previous blog post with GAO statistics can be found here. White credited a number of competing factors with the steady numbers.  The filing fee, enhanced Defense Department debriefings and the suspension of one particularly active “nuisance protester” likely worked to reduce the number of protests, while the highly competitive procurement environment, increased DoD spending, an increase in the dollar threshold for GAO’s task order jurisdiction and the steady but significant success rate for protesters worked to increase the number of protests.

That success rate – the number of protests where the protester sees some kind of remedy, whether from a sustain decision or agency corrective action – remains around 44 percent, similar to previous years, White said. For the third consecutive year, not a single agency refused to follow a recommendation issued by GAO.

The Court of Federal Claims saw a marked increase in protests in 2018 – 179, compared to 129 in 2017, a 40 percent increase.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=785248

GSA launches enhanced debriefing pilot, but why not make it permanent?

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The perception that bid protests are mucking up the federal procurement process is one of those urban myths that will not die, like how Paul McCartney died in a car crash in 1966 or that the Air Force hides away UFOs in the desert.

Despite the fact that these “theories” are continually disproven, the myths just will not go away. Plenty of people swear they hear “Paul is dead” when you play “Revolution No. 9” backward.

For instance the most recent attempt to limit bid protests to improve acquisition is from the Section 809 panel. It recommended making substantial changes to the federal bid protest process by limiting vendors to filing before the Government Accountability Office or the Court of Federal Claims, but not both, as well as prohibiting protests of contracts for “readily available” products or services of less than $15 million.

The Senate Armed Services Committee a few years ago tried to “restrain” bid protests by making it harder on contractors to bring complaints before the GAO.

Despite the well-known fact that protests impact less than 1 percent of all procurement actions a year, there is this ever-present concern that bid protests are fouling up the system and a major part of the reason why federal contracting takes so long.

Keep reading this article at: https://federalnewsnetwork.com/reporters-notebook-jason-miller/2019/02/gsa-launches-an-enhanced-debriefing-pilot-but-why-not-just-make-it-permanent/

Vendors challenged more federal contracts in 2018

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The number of bid protests filed against the federal government increased less than 1 percent last year, but contractors continue to get some sort of recompense from the agencies they’re challenging, according to a Government Accountability Office annual report.

Contractors filed 2,607 bid protests in fiscal 2018, an uptick from 2,596 in fiscal 2017. The number of bid protests has been increasing since 2013, except for fiscal 2017 when they dropped 7 percent.

The office closed 2,642 cases during the year, which breaks down as 2,505 protests, 53 cost claims and 84 requests for consideration. Even though the office saw a slight uptick in protests filed, they sustained them at a lower rate—15 percent—than in fiscal 2017.

Keep reading this article at: https://www.nextgov.com/cio-briefing/2018/11/vendors-challenged-more-federal-contracts-2018/153148/

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/

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