Georgia Tech Procurement Assistance Center

Recent GAO decisions underscore the need for precision in identifying corporate entities during the procurement process

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Many government contractors are part of corporate families consisting of multiple corporate entities.  One entity may be named as the official contracting party, but use the resources of affiliates, parents, or subsidiaries during performance.

The distinction between those members of the corporate family may not seem important in terms of day-to-day operations — in fact, the synergy and seamlessness between the corporate entities may be a selling point.

Two recent Government Accountability Office (GAO) decisions make clear, however, that when it comes to bidding on government work, it is important to precisely identify which corporate entity is going to do what and which corporate entity has which resources.

In BDO USA, LLP and Intermarkets Global USA, LLC, GAO’s decisions turned on a perceived misidentification of corporate entities at some point in the procurement process.  In BDO, the problem occurred during bid submission.  In Intermarkets, the problem occurred when the protest was filed.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/11/still-just-rat-cage-recent-gao-decisions-underscore-need-precision-identifying-corporate-entities-procurement-process/

Who’s the ombudsman? Proposed FAR rule requires clarity

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When GAO lacks jurisdiction to hear a protest over a task or delivery order, contractors have the right to complain to an ombudsman. Implementation of the ombudsman right, however, has been haphazard at best.

Last week, the DoD, GSA, and NASA–the entities comprising the FAR Council–proposed a rule to help alleviate this issue for IDIQ contracts.

Generally, 10 U.S.C. § 2304c and 41 U.S.C. § 4106 require each head of an agency that awards MATOC or delivery order contracts to appoint “a senior agency official who is independent of the contracting officer” as the “task and delivery order ombudsman.” The position requires the appointee to review complaints from contractors in order to ensure “that all of the contractors are afforded a fair opportunity to be considered” in certain circumstances where the underlying contract falls outside of GAO’s jurisdiction.

Keep reading this article at: http://smallgovcon.com/statutes-and-regulations/whos-the-ombudsman-proposed-far-rule-requires-clarity/

If you’re not early, you’re late: Meeting deadlines in federal procurements

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Businesses hoping to win a government contract must be familiar and comply with a host of complex timeliness rules, from the deadlines for submitting proposals and revisions, to the rules for protesting a potentially improper award to a competitor.

One small slip-up may be the difference between receiving a contract and not receiving it.

Untimeliness is a theme that frequently appears in the Government Accountability Office (GAO) protests we highlight on this blog: late proposals, tardy requests for a debriefing, untimely protests.

Some deadlines are obvious: If the solicitation says proposals are due at 5:00 p.m., don’t submit your proposal at 5:30 p.m. Others are less intuitive: When is the last possible moment you can request a required debriefing?  A few are positively convoluted.

We provide a few practical tips on timeliness below, illustrated with some cautionary protest decisions. As always, if you are not absolutely sure about any deadline, ask your procurement attorney.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=742438

It’s 4:30 pm — Do you know where your debrief request is?

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For those of you who have ever protested a solicitation before the Government Accountability Office (GAO), you know about GAO’s strict rules regarding timeliness.

Under GAO rules, a document is considered filed on a particular day if it is received in GAO’s new electronic filing system by 5:30 p.m. ET.  This rule is strictly enforced, as shown by the recent dismissal of a protest in CWIS, Inc., B-416544.  In that case, GAO dismissed a protest filed by 5:46 p.m, as untimely, even though the late filing resulted from an issue with GAO’s new electronic filing system.

What you may not know, however, is that similar strict timeliness rules also apply to requesting a required debriefing.

In the recent Exceptional Software Strategies, Inc. decision, GAO held that close of business for government agencies was 4:30 p.m., based on the time set forth in FAR 33.101, which governs agency protests.  GAO accordingly ruled that a debriefing request received after 4:30 p.m. was untimely. Because GAO found that the debriefing request was untimely, the protest itself was untimely.

Keep reading this article at: https://www.hklaw.com/GovConBlog/Its-430-pm-Do-You-Know-Where-Your-Debrief-Request-Is-07-27-2018/

Establishing prejudice in an LPTA protest

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Low-priced, technically acceptable procurements (LPTA) shine a light on a contractor’s ability to provide the required services at the lowest possible cost to the government.

Leave your style points at home.  It is all about getting lean to win the award.

But when the evaluation is that simple, is there any room to challenge an LPTA award decision?

The answer is Yes — and a recent GAO protest offers some important insights into best practices.

The protest concerned an Air Force contract to provide tactical recovery kits.  Covering both LPTA bases, the protester argued that the agency:

  1. Unreasonably found the awardee technically acceptable, and
  2. Conducted inadequate discussions concerning price.

Keep reading this article at: https://governmentcontracts.foxrothschild.com/2018/08/articles/bid-protests/establishing-prejudice-in-a-lpta-protest

“Workin’ 9 To 5” –but not in a government office: Requesting a debriefing

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In Exceptional Software Strategies, Inc., B-416232, the Government Accountability Office (GAO) recently addressed the obscure rules for when a disappointed offeror must request a debriefing.

It’s generally well known that, in procurements where offerors may have a right to debriefings, a disappointed offeror must submit a written request to the contracting officer within three days after receipt of written agency notice that the company’s proposal has been excluded from the competitive range (FAR 15.505(a)(3)).

If an offeror misses the deadline, it does not necessarily mean it won’t get a debriefing, but any debriefing will not be “required.”

In Exceptional Software, on Thursday, March 15, the National Security Agency (NSA) provided the protester with written notice that its proposal was excluded from the competitive range and provided a brief rationale for that exclusion. Under FAR 15.505(a)(3), the offeror then had three days – until Monday, March 19 – to request a debriefing. (When the third day falls on a weekend or holiday, the deadline always moves to the next business day.) On Monday at 4:59 p.m., the offeror submitted its written request for a debriefing, which the NSA provided on April 2.  Four days later, the offeror protested.

Under the GAO’s debriefing exception, a protest is timely if it is filed either within 10 days after the protester knew or should have known of the basis of protest, or within 10 days after the close of a required debriefing.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=728628

GAO: Agency closing time is 4:30 pm, not 5:00 pm

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Unless an agency designates different business hours, the Federal Acquisition Regulation (FAR) says that a government agency is deemed to close at 4:30 p.m. local time–not 5:00 p.m., as it would be easy to assume.

In a recent case, the 4:30 p.m. closing time cost an unsuccessful offeror a chance at a GAO protest because the offeror’s debriefing request, sent to the agency at 4:59 p.m., was deemed untimely.

The GAO’s decision in Exceptional Software Strategies, Inc., B-416232 (July 12, 2018) involved an NSA solicitation seeking to award up to six IDIQ contracts for the definition, prototyping, development, and production of visualization and presentation tools.  Thirteen offerors, including Exceptional Software Strategies, Inc., submitted initial proposals.

The evaluation panel determined that ESS’s proposal was unacceptable under one of the non-price factors.  On Thursday, March 15, 2018, NSA informed ESS that its proposal had been excluded from the competitive range.  The letter explained that ESS had been found unacceptable, and the reasons why.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/gao-agency-closing-time-is-430-p-m-not-500-p-m/

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/

 

What GAO said and did not say about soliciting data rights in recent protest ruling

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The Government Accountability Office (GAO) issued a decision on May 22, denying in part and dismissing in part Sikorsky Aircraft Corporation’s much-watched protest of the Air Force’s solicitation to replace the UH-1N helicopter.  The decison deals an early (if light) blow to contractors in their fight against the Air Force’s recent data rights grab.

The GAO, in Sikorsky Aircraft Corp., B-416027; B-416027.2, May 22, 2018, ultimately endorsed one provision requiring broad delivery of both technical data and software necessary for operations, maintenance, installation, and training activities (defined in the solicitation as “OMIT Data”), but Sikorsky’s protest did not go down without first getting an important concession from the Air Force. This concession, and the GAO’s discussion of whether OMIT Data includes source code, are the key takeaways from Sikorsky, and we will discuss them in some length here. Before we do, some stage-setting is appropriate, in particular because the clauses at issue are confusing.

For more than 20 years, contractors and government personnel have used “OMIT data” as a familiar shorthand for the data called out in DFARS 252.227-7013(b)(1)(v) as “Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data),” and, importantly, in which the Government is entitled to unlimited rights. In this parlance, OMIT data by definition include neither “detailed manufacturing or process data” (DMPD) nor computer software. Unsurprisingly, the Air Force caused some consternation recently when it bucked this convention and began including in its solicitations for major weapons systems a provision defining “OMIT Data” to include all types of computer software and, in some cases, DMPD. (We distinguish this OMIT Data, specially defined by the Air Force, and the colloquial OMIT data.) Sikorsky was the first to file a formal challenge.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=706316

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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