Georgia Tech Procurement Assistance Center

GAO sustains protest where agency inconsistently evaluated proposal

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GAO generally defers to an agency’s judgment when it comes to the evaluation of proposals. This deference flags, however, when an agency evaluates competing proposals inconsistently; or, in other words, treats offerors disparately.

Let’s take a look at how GAO, in a recently sustained protest, found that the agency’s evaluation was unreasonable.

In Bristol Environmental Remediation Services, LLC, B-416980 et al. (Jan. 16, 2019), the Army Corps of Engineers solicited environmental remediation and munitions response services. The agency noted that it would evaluate the proposals on a best-value tradeoff basis, with non-price considerations being significantly more important than price. In all, the agency planned to award up to 10 fixed-price IDIQ task-order contracts.

After conducting discussions with offerors in the competitive range and obtaining revised proposals, the agency assigned all offerors identical ratings for their non-price factors, with one exception. For the least important non-price factor–which consisted of offerors’ proposing a technical approach for a sample project–the agency assigned identified two weaknesses in Bristol’s proposal and assigned it a marginal rating. (This marginal rating cost Bristol a contract, which the agency awarded to six other offerors.) As you can imagine, Bristol challenged the two assigned weaknesses.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/inconsistency-killed-the-cat-gao-sustains-protest-where-agency-inconsistently-evaluated-proposal/

Security assessments soon may be part of DoD government contracts acquisition process

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Identifying threats and improving network and supply chain security has been an ongoing effort by Congress and the Department of Defense (DoD) for the past several years.

Congress has included multiple provisions in the annual National Defense Authorization Acts to spur action by the DoD to address weaknesses in contractor supply chains for electronic parts and vulnerabilities to cyber threats in contractor information technology systems. In turn, the DoD has amended the Defense Federal Acquisition Regulation Supplement (DFARS) to impose new performance requirements on contractors and subcontractors in DoD procurement contracts. This cascading effort of turning policy into contract performance has been steady but slow and of questionable efficacy.

A new initiative under consideration by the DoD could change that. In June testimony to Congress, the DoD said it has started a new initiative known as “Deliver Uncompromised” to “elevate the private sector’s focus on security.” The DoD’s goal is to establish security as a “fourth pillar” in acquisition, “on par with cost, schedule and performance.” The hope is to create incentives for industry to “embrace security, not as a ‘cost center,’ but as a key differentiator” in competitions for procurement contracts.

In August 2018, the nonprofit group Mitre Corporation (Mitre) released a report called “Deliver Uncompromised,” which describes how the DoD and the intelligence community face daily strategic attacks from foreign adversaries in the supply chain domain (e.g., software, hardware, and services) and cyber domain (e.g., informational technology and cyber-physical such as weapons systems). Mitre’s report calls for a unified focus of resources from both the DoD and government contractors to prioritize risk mitigation through enhanced infrastructure and better coordination.

While the DoD cannot require private companies to invest in specific security measures, the Mitre report recommends that the DoD use its purchasing power and regulatory authority to influence and shape the conduct of the DoD suppliers. For example, the DoD may begin defining procurement requirements with new security measures, or rewarding contractor proposals with superior security measures by elevating security as a primary metric for evaluation during the source selection process. The DoD could also include terms and conditions in its contracts that impose security requirements, and then use those contractual terms post-award to monitor contractor compliance.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=737662

GTPAC has created a video and a template to help businesses comply with DoD’s cybersecurity requirements.  These resources appear at: http://gtpac.org/cybersecurity-training-video/

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/

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/

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/

Agency properly considered joint venture partners’ past performance, says GAO

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A procuring agency properly considered the past performance of a joint venture’s two partners, even though the solicitation prohibited the consideration of subcontractors’ past performance.

In a recent bid protest decision, the GAO held that where a solicitation only allowed past performance references for the “prime offeror,” the agency was permitted to consider the past performance of two joint venture partners–the entities comprising a “prime offeror.”

The GAO’s decision in System Integration and Development, Inc., B-408865.2, B-408865.3 (July 10, 2014) involved a Department of Labor solicitation for information technology systems operation and maintenance.  The solicitation provided for award on a best value basis, including consideration of offerors’ past performance.

With respect to the past performance factor, the solicitation called for offerors to submit up to five references for contracts completed in the last five years.  The solicitation stated that DOL would evaluate past performance “for the prime offeror only” and that “past performance for any proposed subcontractor will not be evaluated.”

Keep reading this article at: http://smallgovcon.com/gaobidprotests/agency-properly-considered-joint-venture-partners-past-performance-says-gao/

VA Awards health IT contract at triple the price of lower bids

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The Veterans Affairs Department awarded ASM Research a $162.5 million contract to improve the user experience for VA’s electronic health record system, a price more than triple two competitive bids, Nextgov has learned. The Sept. 30 contract award is for improvements to the Veterans Health Information Systems and Technology Architecture, known as VistA.

HP Enterprise Services and Triple-I of Overland Park, Kansas, each submitted bids under $50 million on the contract won by ASM, two independent sources told Nextgov. The companies competed for the VistA work through task orders issued under a $12 billion IT umbrella contract known as Transformation Twenty-One Total Technology, or T4. The T4 contract, awarded to 16 companies in June 2011, is an indefinite delivery, indefinite quantity contract that gives the department considerable flexibility in awarding technology deals.

The VistA enhancement contract calls for a new graphical user interface that will display a wide range of patient information. It also calls for other tasks one source described as so general it would allow the department to use ASM for a wide range of work without further competition.

On Oct. 28, a month after VA awarded the contract to ASM, David Waltman, a senior program officer within the Veterans Health Administration’s Office of Information and Analytics who had done preliminary work on that contract, sent an email to colleagues at VA and the Defense Department telling them he would leave government service Nov. 2 to take a job as chief strategy officer for ASM.

Keep reading this article at: http://www.nextgov.com/health/2013/11/va-awards-asm-research-health-it-contract-triple-price-competitors-bids/73223/

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