Georgia Tech Procurement Assistance Center

Draft DoD guidance reveals how cyber readiness will impact contract evaluations

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Editor’s Note: This post was created by Jon Williams who is a partner with PilieroMazza and a member of the firm’s Government Contracts Group. 

We have been blogging and giving webinars since last year about the DoD requirements around cybersecurity for contractors that are subject to DFARS 252.204-7012. Please view our past blogs and webinars here and here to get more of the backstory.

In a nutshell, DoD contractors operating nonfederal IT systems and subject to DFARS 252.204-7012 were required to have a system security plan (“SSP”) in place by December 31, 2017, to demonstrate compliance with the recommended security controls in NIST SP 800-171. Although the DFARS requirements were black-and-white, there was a fair amount of uncertainty late last year and continuing into this year about what contractors needed to do to comply and if/how DoD would enforce the requirements.

DoD has taken some of the mystery out of these cyber requirements in a recently-released draft guidance.

Keep reading this blog post at: http://www.pilieromazza.com/the-protests-are-coming-draft-dod-guidance-reveals-how-cyber-readiness-will-impact-contract-evaluations

See GTPAC’s instructional video on achieving compliance with DFARS 252.204-7012 and NIST guidance at: http://gtpac.org/cybersecurity-training-video/

Unstated evaluation criteria and waived solicitation requirements

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This week we’ll discuss two protest arguments that are, in some ways, two sides of the same coin: unstated evaluation criteria and waived or relaxed solicitation requirements.

In each, the focus of the protest is on what was required (or not required) by the solicitation and whether the agency’s evaluation was consistent with the information provided to offerors in the solicitation.

  • Unstated Evaluation Criteria – Under an unstated evaluation criteria theory, the protester must show that it was faulted for a weakness, or the awardee was credited with a strength, that has no logical relation to the stated evaluation criteria.
  • Waived or Relaxed Requirements – While an unstated evaluation criteria protest ground may concern an agency’s application of a requirement that does not exist in a solicitation, the waived or relaxed requirement protest ground involves the agency’s failure to apply a solicitation or specification requirement.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=642102

Formal claim required to appeal negative performance evaluation

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For federal contractors, it is not an exaggeration to say that performance evaluations are the lifeblood of the business.

A less-than-satisfactory evaluation in the Contractor Performance Assessment Reporting System (CPARS) affects far more than just the agency’s assessment of performance on a particular project.  A negative evaluation follows a contractor around – impacting the ability to obtain future contracts due to the specter negative past performance ratings.

The good news for contractors is that the ability to challenge and – if successful – reverse negative CPARS evaluations is a quickly developing area of government contracting law.

The first step in any successful CPARS challenge involves meaningful participation in the evaluation process.  The Federal Acquisition Regulation (FAR) Part 42.15 entitles contractors to submit comments and receive an agency review of a disputed performance evaluation.  Specifically, contractors are entitled to submit comments, rebuttal statements, and/or other information in response to the agency’s evaluation.  The agency must then review those comments at a level above the contracting officer and update the evaluation, if necessary.

Keep reading this article at: https://governmentcontracts.foxrothschild.com/2017/09/articles/contract-claims/cpars-challenge-primer-formal-claim-required-to-appeal-negative-performance-evaluation/

Contracting dispute delays OPM’s background investigations processing

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The Government Accountability Office (GAO) decision comes shortly after OPM stood up the nascent National Background Investigations Bureau. Two companies filed a protest with GAO after OPM awarded the $117 million contract to Primus Solutions, a division of ARSC Federal. The contract was for at least two years with options of up to five, and was intended to provide OPM employees support in processing background investigations.

In its solicitation, OPM had said it would consider price to a much lesser degree that non-price factors such as technical approach, quality control plan, staffing plan and past performance. Primus came in more than $9 million below one of the companies filing the protest and more than $44 million below the other. GAO confirmed allegations that OPM’s selection authorities ignored initial concerns from its price evaluators that Primus’ cost estimates were “unrealistic.”

Keep reading this article at: http://www.govexec.com/contracting/2017/06/contracting-dispute-delays-opms-background-investigations-processing/138688/

GAO decision illustrates breadth of agency discretion in past performance evaluations

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past-performance-relevanceIn the recent bid protest decision of Halbert Construction Company Inc., the Government Accountability Office (GAO) illustrated the breadth of a procuring agency’s discretion in conducting a past performance evaluation.

Halbert Construction brought the protest after being excluded from the competitive range, arguing primarily that the Navy unreasonably included a non-relevant prior project in the past performance evaluation which led to Halbert Construction’s exclusion.  The GAO sustained the protest based on the well- established principle that offerors must be treated equally because the Navy excluded another offeror’s past performance reference from the evaluation as not relevant under the solicitation’s relevancy criteria but then failed to do the same for the protestor.

More notable than the relatively straight-forward application of the disparate treatment principle was the decision’s discussion of the very broad discretion of agencies in past performance evaluations.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/10/gao-decision-illustrates-breadth-agency-discretion-past-performance-evaluations/

Post hoc proposal reevaluation exacerbates error in award decision

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GAO-GovernmentAccountabilityOffice-SealThe Government Accountability Office (GAO) released on July 15, 2016 a public version of Delfasco, LLC, B-409514.3 (March 2, 2015), a decision noteworthy because of how the GAO dealt with an agency’s post hoc reevaluation of proposals.

The protestor, Delfasco, LLC (Delfasco), had an incumbent contract to sell dummy practice bombs to the U.S. Army, and it protested the award of a follow-on contract to GTI Systems, Inc. (“GTI”), a competitor.

While Delfasco’s protest was pending before the GAO, the Army reevaluated the offerors’ proposals, and it found errors in its evaluation.  The Army increased Delfasco’s past performance rating, and it eliminated three strengths that had been assigned to GTI’s technical proposal.  Nonetheless, the Army concluded that these errors would not have altered its award decision.  In its final brief to the GAO, the Army explained this reevaluation.  The Army asserted that Delfasco had not been prejudiced, and it asked the GAO to deny Delfasco’s protest.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/07/post-hoc-proposal-reevaluation-exacerbates-error-in-award-decision/

Past performance a big deal for Alliant 2 competitors

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GSA logoSometime in June, $65 billion in federal IT business will be up for grabs under the Alliant 2 governmentwide acquisition contracts. The requests for proposals from the General Services Administration will likely grab the attention of nearly all the major IT contractors looking to boost profits amid a contracting environment ripe with consolidation and budget tightening.

The Alliant 2 Unrestricted, with a ceiling of $50 billion over 10 years, and Alliant 2 Small Business, with its $15 billion ceiling, represent the largest IT contract of the year and perhaps of the next decade. And its objective methodology for selecting winners is likely to make it also among the most competitive.

Building on the approach GSA used in 2013’s One Acquisition Solution for Integrated Services contracts, companies will self-score relevant experience and various certifications in a points-based system set by GSA. (Brian Friel, founder of One Nation Analytics, published a thorough write-up on this process in Nextgov in March).

Keep reading this article at: http://www.nextgov.com/big-data/2016/05/past-performance-big-deal-alliant-ii-competitors/128144/

Use your own words in proposals

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GAO-GovernmentAccountabilityOffice-SealIn a recent decision, the Government Accountability Office (GAO) played seventh-grade English teacher, reminding offerors to use their own words to get full proposal-writing credit.

In the case of Res Rei Development, Inc., B-410466.7 (Oct. 16, 2015), the agency found a proposal unacceptable because, in its view, the offeror had simply restated the terms of the solicitation. The GAO agreed with the agency’s decision, writing that a proposal that merely restates the requirements of the solicitation without adding detail and insight into how the offeror would manage and execute the contract can be found unacceptable.

The Res Rei Development protest arose out of a United States Special Operations Command (SOCOM) solicitation for support services such as acquisition, budget planning, business process re-engineering, and program planning services. Res Rei Development, Inc. was one of several offerors submitting proposals.

 

Keep reading this article at: http://smallgovcon.com/gaobidprotests/gao-to-contractors-use-your-own-words/#more-4426

Ten bid protest trends and tips

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It is no secret that federal procurement spending has dropped considerably in recent years. With less dollars being spent and fewer procurements, government contracts are increasingly turning to the bid protest process for a second chance to compete for, and hopefully win, new contracts, and preserve their incumbent contracts.

GAO-GovernmentAccountabilityOffice-SealThe statistics bear this out. Bid protest activity at the U.S. Government Accountability Office (GAO) has steadily increased year-over-year, with a record 2,561 protests filed in fiscal year 2014 alone. But more filings has not meant more sustained protests; the GAO sustain rate in 2014 fell to its lowest recent level of only 13 percent (though this does not account for voluntary agency corrective actions, which have remained steady).

These statistics, and the new federal procurement reality, reinforce the need for contractors to think carefully about effective protest strategies and emerging issues to maximize their chances to successfully protest procurements (or defend contract awards).

See ten key trends and tips to keep in mind: http://www.mondaq.com/article.asp?articleid=421438

GAO: ‘Mechanical’ cost realism evaluation was improper

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An agency’s cost realism evaluation was improper because the agency “mechanically” compared an offeror’s proposed staffing to an undisclosed government estimate.

In a recent bid protest decision, the GAO held that it was improper for the agency to apply its own estimates for labor hours and costs without considering the protester’s unique technical approach.

The GAO’s decision in CFS-KBR Marianas Support Services, LLC; Fluor Federal Solutions LLC, B-410586 et al. (Jan. 2, 2015) involved a Navy procurement for base operations support services.  The solicitation contemplated the award of a cost-reimbursement contract, which was to be awarded on a “best value” basis.  Among the evaluation factors, the Navy was to consider offerors’ proposed staffing and resources.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/gao-mechanical-cost-realism-evaluation-was-improper/

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