Georgia Tech Procurement Assistance Center

GAO holds solicitation requirement violates SBA’s regulations regarding small business mentor-protégé joint ventures

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In a recent decision, the Government Accountability Office (GAO) sustained a protest challenging the terms of a solicitation, as the solicitation impermissibly required that a protégé and mentor in a joint venture have the same level of experience as other offerors.  This is an important decision for companies that are parties to a joint venture, and a reminder to carefully review a solicitation’s requirements before submitting a proposal.

As relevant background, the Small Business Administration (SBA) revised its regulations in November 2020.  Prior to November 2020, SBA’s regulations provided that, in evaluating proposals submitted by a joint venture, agencies must consider the past performance of the joint venture entity itself and each party to the joint venture.  Effective November 16, 2020, this provision was expanded to include capabilities, experience, business systems, and certifications.  SBA explained that while a small business protégé should have some experience in the type of work to be performed, “it is unreasonable to require the protégé concern itself to have the same level of past performance and experience (either in dollar value or number of previous contracts performed, years of performance, or otherwise) as its large business mentor.”  Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments, 85 Fed. Reg. 66146, 66167 (Nov. 16, 2020).

Continue reading at:  JD Supra

See also, this Small GovCon article:  https://smallgovcon.com/gaobidprotests/gao-solicitation-cannot-require-a-protege-have-the-same-experience-as-its-mentor/

Past performance isn’t always a required evaluation factor, says GAO

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For companies trying to break into the government market for the first time, past performance can seem a bit like the old chicken-and-egg conundrum. Sometimes it can appear like a company can’t win a government contract without a strong record of past performance–but can’t build a past performance record without contracts! And with the government’s continued movement away from lowest-price, technically acceptable evaluations, past performance seems increasingly important.

But that doesn’t mean the government always has to consider past performance as an evaluation factor.  Instead, as a recent GAO bid protest decision confirms, procuring agencies have broad discretion to omit past performance in appropriate cases.

Continue reading at:  SmallGovCon

Leave sufficient time to deal with technical difficulties when submitting a proposal electronically

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Offerors must be alert to the possibility of technology difficulties when electronically submitting a proposal for a federal procurement as the general rule regarding proposal submissions is that “late is late.”  GAO has heard countless cases in which proposal submission via email has presented complications.  Proposal submission via government portals has presented similar problems for offerors.

Recently, in People, Technology and Processes, LLC, B-419385, B-419385.2, Feb. 2, 2021, GAO heard a challenge to GSA’s rejection of a proposal from consideration for an order under OASIS.  The offeror, People, Technology and Processes or PTP, experienced technical difficulties while trying to submit the proposal via the GSA ASSIST online portal.  Although PTP was unable to submit its proposal, no systemic issues were reported with the portal and GSA timely received six proposals from other offerors.  In denying PTP’s protest, GAO’s decision provides three takeaways for other offerors using the GSA ASSIST portal.

Continue reading at:  Crowell

GAO clarifies its jurisdiction over OTA protests

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The Government Accountability Office (GAO), in Spartan Medical, Inc., B-419503, recently clarified the scope of its jurisdiction over bid protests involving an agency’s use of its other transaction agreement (OTA) authority.  The GAO’s decision in this case is noteworthy because agencies are increasingly relying on OTAs to meet their procurement needs.

Continue reading at:  Bradley’s BuildSmart Blog

GAO: In “best value” procurement agency has wide discretion to pay price premium

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When it comes to “best value” evaluations, agencies ordinarily have broad discretion to accept higher-rated, higher-priced proposals.

How broad is that discretion? Well, in one recent case, the GAO held that an agency reasonably accepted the awardee’s higher-rated proposal, despite a whopping 91% price premium.

The GAO’s decision in Deloitte Consulting LLP, B-419336.2 et al. (2021) involved a DHS Request for Quotations seeking the establishment of a Blanket Purchase Agreement under which the awardee would provide program analysis and strategic support services.  The RFQ was issued to holders of the GSA’s Professional Services Schedule with particular Special Line Item Numbers, as well as certain other GSA Schedule holders, and contemplated the award of a single BPA against which orders would be issued.

The RFQ provided for award on a best-value basis, using a two-phase process.  Only phase 2 was at issue in the GAO’s decision.  In phase 2, the evaluation was to be based on five factors, listed in descending order of importance: management approach, technical approach, prior experience, socio-economic considerations, and price.  Because the ultimate scope of work under the BPA was indefinite, price was to be evaluated based on a sample task.

Continue reading at:  SmallGovCon

Avoid having your early bid deemed late on federal projects

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Bidder beware.  Interpreting federal law can sometimes feel like solving a riddle.  For example, when is an early bid late?

In the case, In re Sea Box, Inc., the Government Accountability Office (GAO) determined that a bid received by government servers eight minutes before the deadline was late because it did not arrive in the Contract Officer’s inbox until shortly after the deadline.  To be clear, it did not matter when the bid was received by government servers, nor did it matter that the bid was fully in the control of the government once it was submitted.

Instead, the case turned on the interpretation of a Federal Acquisition Regulation (FAR 52.215-1) that was incorporated into the bid by reference.

Continue reading at:  Inside Tucson Business

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

GAO: SAM registration is a matter of contractor responsibility, not bid responsiveness

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Government contractors must be registered in the System for Award Management (SAM) and complete required representations and certifications annually.  FAR 52.204-7 also requires bidders, with some limited exceptions, to be registered in SAM at the time of bid and to continue to be registered until time of award, during performance, and through final payment.  Recently, the Government Accountability Office (GAO) addressed the issue of whether a bidder’s failure to have an active registration in SAM at time of bid renders the bid “nonresponsive” and ineligible for award in Master Pavement Line Corp., B-419111 (Dec. 16, 2020).

In Master Pavement Line Corp., GAO concluded that the failure to be registered in SAM and to complete the annual representations and certifications was a matter of contractor responsibility and not bid responsiveness and that such a defect did not impact the responsiveness of the bid.  As a result, FAR 14.405 required the procuring agency to give the bidder the opportunity to cure the defect.  While GAO concluded that the failure to be registered in SAM does not render a bid nonresponsive, this does not mean that a bidder should wait to register in SAM.  GAO also indicated that SAM registration and the completion of the representations and certifications was still a matter of contractor “responsibility.”  In addition to examining bid responsiveness, under FAR 9.104-1, the federal government is required to determine if a contractor is responsible prior to award.  Therefore, an agency could still theoretically find a contractor nonresponsible for failing to properly register in SAM and deem the contractor ineligible for award.

Continue reading at:  Peckar & Abramson Blog

Don’t rely on a procuring agency to track down past performance questionnaires

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Given how much emphasis federal procurement law properly places on fairness, it can be easy to assume that government buyers must do everything necessary to ensure a fair procurement.  But that’s not always the case.  For example, as the recent Government Accountability Office (GAO) decision in Yulista Tactical Services LLC, B-417317.3; B-417317.5; B-417317.6 (January 15, 2020) reminds us, purchasing agencies need only take reasonable steps to obtain complete past performance information about an offeror.  If its reasonable efforts are not successful, the agency can still proceed with the procurement and make a valid award decision based on the information it has.

Continue reading at:  Government Contracting Matters

GAO reminds offerors that it’s important to substantiate key personnel’s experience

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Putting your best foot, or best personnel, forward seems like “Winning the Contract Award 101.”  But a refresher course never hurts.

Recently, the Government Accountability Office (GAO) decision in Deloitte Consulting, LLC (Deloitte), B-416882.4 (January 6, 2020), provided a reminder about the content of a quotation where the solicitation requires submission of a crosswalk, resume, and detailed work history for key personnel.

Continue reading at:  Government Contracting Matters

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