Georgia Tech Procurement Assistance Center

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/ 

New rules for filing protests at GAO and new DFARS debriefing requirements

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The Government Accountability Office {GAO) finally has unveiled its long-awaited Electronic Protest Docketing System (EPDS).

Effective May 1, 2018, all new protests (excluding those containing classified material) must be filed using GAO’s EPDS.

In addition, the National Defense Authorization Act (NDAA) for 2018 enhanced debriefing requirements for all contract and task order awards valued at $10 million or more. Under the new rules, contracting officers must provide unsuccessful offerors an opportunity to submit additional questions related to the debriefing within two business days after receiving the initial debriefing. The agency then has five business days to respond after receipt of the questions.

See details on both of these new requirements at: http://www.mondaq.com/article.asp?articleid=697940

GAO bid protests must be submitted online starting in May

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Vendors that don’t like the results of a contract award will have to go online to take up their beef up with the Government Accountability Office (GAO) starting next month.

GAO on Thursday announced its plans to launch the electronic bid protest docketing system, a web portal where groups can securely file protests to federal contract awards. Vendors will be required to submit all new protests through EPDS beginning May 1.

“This new system modernizes the bid protest process at GAO and will make it a much more efficient process,” said Comptroller General Gene Dodaro, who heads the congressional watchdog agency, in a statement.

Keep reading this article at: http://www.nextgov.com/it-modernization/2018/04/all-bid-protests-must-be-submitted-online-starting-may/147257/

The Government Accountability Office’s (GAO) new Bid Protest Regulations, effective May 1, 2018, are at: https://www.federalregister.gov/documents/2018/04/02/2018-06413/government-accountability-office-administrative-practice-and-procedure-bid-protest-regulations

$17.5 billion defense IT contract award survives four protests

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The 20 companies awarded a place in November on the Defense Information Systems Agency’s $17.5 billion IT services contract, ENCORE III, will get to keep their spots, the agency recently announced.

The award survived protests from Data Systems Analysts, NCI Information Systems, Peerless Technologies Corporation and Planned Systems International. The companies filed their protests with the Government Accountability Office in November; all four were dismissed on Feb. 21.

The protest decisions from GAO are under a protective order and awaiting redaction before being released to the public.

See the names of the 20 companies and keep reading this article at: http://www.nextgov.com/it-modernization/2018/03/175-billion-defense-it-contract-awards-survives-four-protests/146738/

Industry seeks easy fixes to lengthy, redundant vetting process for DHS contractors

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Industry is pushing members of Congress to help the Homeland Security Department address a series of major roadblocks that companies have with the agency’s long, confusing and redundant process for vetting contractor personnel.

Most members of industry and Congress agree: the governmentwide security clearance process, which recently made its way back on the Government Accountability Office’s biennial High-Risk List, has its many challenges.

But the least DHS could do, industry said, is standardize and simplify the requirements it uses to determine whether contracting personnel are fit to work on behalf of the agency.

“We want them standardized,” Marc Pearl, president and CEO of the Homeland Security and Defense Business Council, said Tuesday at a hearing on the DHS vetting process.

Keep reading this article at: https://federalnewsradio.com/workforce/2018/02/industry-seeks-easy-fixes-to-lengthy-redundant-vetting-process-for-dhs-contractors/

New debriefing rules in effect for DOD contractors

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As discussed in an earlier post about the NDAA for FY 2018, one of the most significant changes with respect to procurement issues may be related to the DoD’s conduct of debriefings.

Perhaps missed in the discussions of a potential new protest regime going into effect in a couple years is the fact that one of the most significant debriefing changes is effective immediately without the need for a new regulation.

Specifically, Section 818 of the NDAA required that DoD agencies provide disappointed offerors with an opportunity to ask follow-up questions “within two business days after receiving a post award debriefing” and provided that the “5-day period” associated with the timeline for a CICA stay “does not commence until the day the Government delivers to a disappointed offeror the written responses to any questions submitted” pursuant to the new rule. Because these provisions of the NDAA amended the underlying statutes (10 U.S.C. § 2305 and 31 U.S.C. § 3553) instead of requiring the Secretary to amend the DFARS, these rules went into effect upon the signing of the NDAA. In fact, in a few cases since the NDAA went into effect, we have seen DoD agencies agree that the new rules are in effect.

So, what do contractors need to know?

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=674748

Moving to the cloud for DoD becoming a complex acquisition affair

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The Defense Department’s more aggressive move to the cloud will not be without some ups and downs.

Feb. 7th was the perfect example of those trials and tribulations. Within a matter of hours, DoD’s Defense Innovation Unit — Experimental (DIUx), expanded a third pilot into a full-fledged effort to make it easier for services and agencies to obtain cloud computing services.

DIUx awarded a contract that could be worth up to $950 million to REAN Cloud. The five-year deal will let DoD buy cloud services from REAN through a new streamlined process. Under the contract, REAN will provide access to Amazon Web Services using an automatic pricing and procurement model.

While at the same time, the Pentagon learned its $6.7 million contract for support services for its Cloud Executive Steering Group came under protest at the Government Accountability Office.  DoD launched the steering group in September and then reshuffled its members in January.

Keep reading this article at: https://federalnewsradio.com/defense/2018/02/moving-to-the-cloud-for-dod-becoming-a-complex-acquisition-affair/

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