Georgia Tech Procurement Assistance Center

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

Plan ahead to prevent proposal submission issues, says GAO

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When submitting bids, contractors should always double-check their proposal submission methods, whether it be a designated portal, email, or any other method, and do so well before the deadline. GAO recently had the opportunity to examine proposal submission issues related to a US Navy procurement and did not show sympathy for the contractor who experienced proposal submission issues right at the deadline.

Continue reading at:  SmallGovCon

Five-year annual receipts: Don’t start until SBA says “go!”

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Absent further action by the Small Business Administration (“SBA”) Office of Hearings and Appeals or a Federal Court, the GAO has effectively ended the argument as to whether the Small Business Runway Extension Act of 2018 (“Runway Extension Act”) immediately changed the annual receipt average for revenue-based small business size standards from three years to five.  In short, firms should continue to apply the three-year standard until SBA’s regulatory process runs its course.

Continue reading at:  Morrison & Foerster

Agency protests: An emerging tool and potential threat for contractors

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In May 2018, the Government Accountability Office (“GAO”) implemented a $350 filing fee for bid protests.  There are differences of opinion regarding why GAO implemented the fee.  GAO publicly states that the fee was implemented to cover the costs of its new Electronic Protest Docket System (“EPDS”).  Many, however, believe the fee was implemented to deter the filing of frivolous protests.  Regardless, there “may” be an unintended consequence of the protest filing fee—an increase in agency-level protests.  Recently, several agency contracting officers have stated that they are handling more agency protests, and, in their opinion, it is a direct result of GAO’s protest filing fee.  As a result, contractors should understand and be prepared to mitigate the risk of agency protests to protect their contracts and position themselves for new ones.

Pros and Cons of Agency Protests

Beyond not having to pay a filing fee, there are pros (and cons) to filing an agency protest as opposed to a protest at GAO.  Unlike at GAO, in agency protests, the agency is not required to file an agency report or produce documents; thus, there is no opportunity to review the agency’s decision-making process or file a supplemental agency protest.  And, at the agency level, a protester does not get the opportunity to file Comments (i.e., rebut the agency’s legal position) on the agency’s report like it would get at GAO.  As a result, a protester’s legal bills will be lower with an agency protest and you may receive an agency protest decision faster than at GAO (35 days vs. 100 days).  Also, some believe filing an agency protest is favorable in terms of client relations.  When you file a protest you essentially are suing your client or potential client.  An agency protest is not a public filing like a protest filed at GAO.  Thus, some believe a contractor benefits by filing an agency protest and not publicly airing an agency’s so-called dirty laundry at GAO.  Finally, with one important caveat, an agency protest could be useful if a protester intends to elevate the protest to GAO or the Court of Federal Claims.  Federal Acquisition Regulation 33.103 requires an agency to provide agency-protest decisions that are “well-reasoned, and explain the agency’s position.”  If a protester receives an unfavorable agency-protest decision, the protester can use the information obtained from the decision to strengthen its arguments at GAO or the Court of Federal Claims.  However, a contractor should keep in mind that, if its agency protest is unsuccessful, an automatic stay will not be available at GAO.

Continue reading at:  BlankRome

The government’s historic spending spree continues

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Driven largely by the Defense Department, the federal government’s discretionary spending spiked to a seven-year high in fiscal 2018, with agencies obligating more than $554 billion for products and services, up $100 billion from 2015.

According to official spending data from the Government Accountability Office, the Defense Department accounted for $358 billion in contract obligations while civilian agencies, like the Veterans Affairs and Homeland Security departments, obligated $195 billion.

The government closed the 2018 fiscal year on a massive spending spree—due in part to funding increases after a delayed budget agreement—and early fiscal 2019 spending data indicates the government isn’t slowing down its contract spending.

Spending data tabulated by the Professional Services Council illustrates the spending uptick.

Continue reading at:  Nextgov

VA fails again to apply the ‘rule of two’

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In June 6, 2019, the Government Accountability Office (GAO) issued a decision in the matter of Veterans4You, Inc., deciding that the Department of Veterans Affairs (VA) must apply the “Rule of Two” even when it procures goods and services through other government agencies.

In the VA context, the Rule of Two is the commonly known name for a statutory provision of a 2006 amendment to the Veterans Benefits, Health Care, and Information Technology Act requiring that “the [VA] shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans” where the VA “has a reasonable expectation that two or more [such concerns] will submit offers,” and “the award can be made at a fair and reasonable price that offers best value to the United States.”  As discussed in an alert in 2018, VA has struggled to reconcile this mandate with myriad other mandates establishing preferential sources for government procurements.

Continue reading at:  Pillsbury

GAO infographic shows how the federal government spent money in 2018

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With tax season over, now is a good time to look at how the government uses your tax dollars.

About 40% of the government’s discretionary spending goes to contracts for goods and services covering everything from health care to hand grenades.  In fiscal year 2018, the federal government spent more than $550 billion on these contracts, an increase of more $100 billion from 2015.  This increase is largely driven by spending on national defense.

GAO has recently published an infographic that shows more details on how federal contracting dollars are spent across the federal government—including which agencies obligated the most funds, what they bought, and whether the contracts were competed.

Continue reading at the:  GAO Watch Blog

Agencies agree to do more to identify contractors with tax debts

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A sizable portion of the “tax gap” of revenues that go uncollected by the Internal Revenue Service is attributable to current and would-be federal contractors.

Though the IRS is prohibited from sharing such information with agency procurement staff, contracting officers are supposed to examine the self-reporting of tax debts from the companies to which they give awards.  That is not always occurring, according to a Government Accountability Office report released on Wednesday addressed to leaders of the House Oversight and Reform and the Ways and Means committees.

“Considering prospective contractors’ reported qualifying federal tax debt—in accordance with federal regulations—helps ensure federal agencies comply with federal appropriations law, supports the integrity of the contracting process, and protects the interests of the government,” GAO noted in its summary of a two-year review of five agencies’ handling of selected contracts in fiscal 2015-2016.

Continue reading at:  Government Executive

GAO: Past performance should relate to solicited services

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Past performance is an important evaluation factor in many solicitations.  Essentially, it allows an agency to guess as to the likelihood of an offeror’s successful performance under a solicitation by looking to its history of performance on similar projects in the past.

GAO recently confirmed it is “axiomatic” that past performance examples should align with the solicitation’s requirements.  If an offeror submits unrelated examples, it risks a downgraded past performance score.

Continue reading the article at: SmallGovCon

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