Georgia Tech Procurement Assistance Center

COFC: “Rule of two” must be analyzed before “any” acquisition

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Court of federal claimsOn November 30, 2020, the U.S. Court of Federal Claims (COFC) issued a decision that supported the Small Business Administration’s position regarding the Rule of Two analysis requirements for government acquisitions.  The central question surrounding the case was whether the U.S. Army could cancel a Federal Acquisition Regulation (FAR) Part 8 service-disabled veteran-owned small business (SDVOSB) set-aside procurement under the General Services Administration’s Federal Supply Schedule (FSS) and move the requirement to a multiple-award indefinite-delivery, indefinite-quantity (MAIDIQ) contract vehicle that the plaintiff, The Tolliver Group, Inc. (Tolliver), did not hold.

In its protest, Tolliver argued, in part, that the Army’s actions violated the Rule of Two because the agency was required to determine whether two or more small businesses were capable of performing the requirement prior to choosing to put the procurement on the MAIDIQ contract.  The COFC’s decision confirms that the Rule of Two analysis applies before an agency elects to procure a requirement from a multiple-award contract (MAC) vehicle under FAR Part 16.5.

Continue reading at:  Piliero Mazza

Size recertification prior to award – when is it required?

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Court of federal claimsThe U.S. Court of Federal Claims (COFC) decision in HWI Gear, Inc. v. United States highlights the importance of reviewing a solicitation to determine if the text of Federal Acquisition Regulation (FAR) 52.219-28 is included in it, as well as the risk of engaging in corporate transactions while a proposal to a procuring agency is pending.  In this case, the COFC held that an offeror was required to recertify its size status during a procurement, and the agency’s failure to enforce this requirement invalidated the award.

In HWI Gear, Mechanix Wear, Inc. (Mechanix) and HWI Gear, Inc. (HWI) submitted proposals in response to a solicitation set aside for small businesses.  After proposal submission but before award, Mechanix informed the procuring agency that it had changed its corporate structure from a corporation to a limited liability company and changed its corporate name, but that all other terms and conditions in its proposal remained unchanged.  Mechanix, however, did not inform the agency that its change in corporate structure was the result of a merger with a large business and that Mechanix no longer qualified as a small business under the size standard established for the procurement.  The agency ultimately selected Mechanix as the awardee, and HWI filed a bid protest challenging the agency’s evaluation.

Continue reading at:  Bass, Berry & Sims

COFC highlights importance of proving damages in CDA claims

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Contract Disputes Act (CDA) claims offer Government Contractors the opportunity to recover costs incurred due to Government-caused changes or delays.  While the initial focus often rests on proving liability, a recent Court of Federal Claims (COFC) decision highlights the danger of failing to prove entitlement to damages.

In other words, claims can present the danger of winning the battle . . . only to lose the war.

Continue reading at:  Fox Rothschild

Hit the brakes before taking on government work without a contract

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The Court of Federal Claims’ decision in Panther Brands, LLC v. United States reminds us that (1) only contracting officers (COs), not their representatives (CORs), have authority to bind the government in contract, and (2) at-risk work is risky!  Although simple in theory, in practice these principles can be complicated.

CO authority can be split between a “contracting office” and a “contract administration office.”  COR authority may be clearly limited under one contract, yet indeterminate and expansive under another.  Further muddying the waters, personnel titles can mean different things at different agencies: the “contract specialist” might be the full-fledged CO at one agency, but just an assistant at another.  And while a COR’s – or even a three-star general’s – oral directive might have reliably represented the Government’s position in the past, as Panther shows, that doesn’t mean it will be contractually binding next time around.

Continue reading at:  Kelley Drye

In submitting a bid or proposal – timing is everything!

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In its recent decision in Criterion Systems, Inc. v. U.S., , the U.S. Court of Federal Claims (COFC) denied protester’s pre-award protest challenging the Agency’s rejection of its late submission of a revised quote in response to a solicitation amendment and request for revised quotations.  In this case, the solicitation provided that “[f]ailure to follow procedures or provide any of the documents or information may be considered a material omission and may adversely affect a Vendor’s evaluation or result in elimination of the Vendor from the competition.”  It also provided that “LATE QUOTES WILL NOT BE ACCEPTED.”  Criterion timely submitted its initial proposal and was in the competition.  The Agency issued subsequent amendments to the solicitation and sought submission of revised quotes through a government portal, FedConnect, “no later than 5:00pm ET on November 21, 2018.”  Each amendment and the request for revised quotes stated that “LATE QUOTES WILL NOT BE ACCEPTED.”

Criterion “created” its revised quote on the designated electronic portal at 2:36:54 PM on November 21, 2018, but it did not “submit” it until 5:01:30 PM ET, 90 seconds after the deadline for quote submission.  When asked for an explanation by the Agency, Criterion indicated it may have had “latency” issues and that this was its first time submitting documents using the portal.  Criterion did not provide any evidence to justify or further explain its late submission.  The Agency rejected Criterion’s quote as untimely.

Criterion brought its protest alleging that the Agency’s actions in rejecting its quote were arbitrary and capricious.  The Court held that protester failed to establish that there was a “significant error” in the procurement process:

“Ninety seconds late may appear to be a minimal infraction, but deadlines are set for a reason, and an agency’s strict adherence to a deadline places all bidders on an equal footing and avoids the sorts of issues Criterion is seeking to raise here.  Further, Criterion’s failure to submit a timely bid was entirely within its own control.  The Agency’s refusal to deviate from the express RFQ terms is not arbitrary, capricious, or contrary to law.”

Criterion makes clear that all those who compete in procurements must comply with the express terms of the solicitation.  This is an essential truth in government procurement.  A bidder’s or offeror’s failure to comply with such terms can result in its loss of the opportunity to be considered for award.

Read more at:  Government Contracting Matters

COFC issues decision on Cost Accounting Standards and ‘offsetting’

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The Boeing Company v. United States, Civil No. 17-1969C (May 29, 2019) reveals the Court of Federal Claims’ (COFC) interpretation of the Cost Accounting Standards (CAS) statute as primarily benefiting the government, and directs contractors challenging the Federal Acquisition Regulation (FAR) 30.606(a)(3)(ii) prohibition on offsetting the impact of simultaneous cost accounting practice changes to raise those challenges in a pre-award protest or risk waiver.  Importantly, the court’s decision could have broad implications, requiring contractors to protest the applicability and interpretation of any extra-contractual FAR provisions—not just those involving the CAS statute—that expound upon a FAR Part 52 contract clause.

Adopting a novel theory rooted in the US Constitution, The Boeing Company (Boeing) filed an action under the Contract Disputes Act (CDA) alleging that the FAR 30.606 offset prohibition is an “illegal exaction” in violation of the CAS statute, which specifically prohibits windfalls to the government resulting from changes to a contractor’s cost accounting practices.  Boeing also claimed that FAR 30.606 was “extra-contractual” and therefore, should not preclude Boeing from offsetting changes that increase costs to the government from those that decrease costs.  The COFC dismissed Boeing’s constitutional claim for lack of subject matter jurisdiction and concluded that Boeing had effectively waived its contract claims upon failing to raise them in a pre-award protest or during negotiations with the government.

Continue reading at:  Arnold & Porter

GSA rescinds all awards made on $15 billion Alliant 2 Small Business contract

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The government rescinded all awards made in the $15B Alliant 2 Small Business governmentwide acquisition contract for IT services procurement last week.

The move follows an order from the Court of Federal Claims that the General Services Administration must rescore every submission it received to address errors raised in protest from Virginia-based technology company, Citizant Inc.

The Alliant 2 SB is part of one of the largest federal IT opportunities of the decade. In February 2018, GSA announced its award to 81 small business, which federal agencies would be able to access for integrated IT solutions around their “current and evolving needs.” After the announcement, protests from dissatisfied bidders ensued.

In March 2018, Citizant, Inc. protested the bid to the Government Accountability Office. GAO dismissed the file in May 2018, but Citizant took complaints to court and won this week, resulting in the rescission.

Keep reading this article at: https://www.nextgov.com/cio-briefing/2019/03/gsa-rescinds-all-awards-made-15b-alliant-2-small-business-contract/155869/

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/

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/ 

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