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/

Building better mousetraps by adding value to technical proposals

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“Build a better mousetrap and the world will beat a path to your door” is the old saying, but the federal government seldom beats a path to the door of a contractor. Nevertheless, companies can win contracts by adding value to their proposals with technical discriminators.

Assuming a contractor is responsible, contract awards by federal agencies are generally determined by three sets of factors: price, past performance, and technical approach. Where contracts are awarded based on the government’s assessment of best value, distinctions among technical proposals are critical to determining the contract award. In best value acquisitions, technical discriminators, which serve to differentiate one proposal from another, are often what determine success or failure.

To increase the value of their technical proposals, contractors must make maximum use of technical discriminators. Yet, not all technical discriminators that could lend a competitive advantage to a proposal may be readily apparent. For that reason, it can be useful to look at best value assessments in other procurements. Many such evaluations are reviewed in bid protest decisions. These decisions frequently discuss the technical discriminators that agencies find significant.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=760726

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/

Addressing the key points in your proposal to the government

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Responding to a request for proposals is time consuming and, yes, tedious at times.  However, your proposal is your opportunity to demonstrate to the government: 1) that you understand their need, and 2) that you can meet, and perhaps exceed, their expectations.  Consequently, it is not enough to tell them that your business can do the job.  You must provide concrete evidence that you have what it takes to meet their demands.

While reputation, prior experience, and good will may get you additional business in the private sector, this is not true in government contracting.  Even companies who have exceeded performance expectations for years must provide details commensurate with the RFP in order to maintain their position as the government contractor providing the service.  Finally, a key difference between private sector work and government contracting is that the government’s decision is almost always subject to scrutiny.  Consequently, even if your proposal satisfies the government and you win the bid, you still run the risk of losing the award due to a properly filed protest, if the reviewing body determines you shouldn’t have received such high scores.

Below we offer some tips, based on years of defending award winners, protesting awards to others, and hands-on experience in government contacting. In our work, we have seen certain detrimental mistakes repeated – time and time again. While proposals include some subjective criteria, by implementing these tips, you can increase your chance of achieving a higher score which, in turn, increases your chances of an award, and increases your likelihood of surviving a protest later.

Keep reading this article at: https://www.bidprotestweekly.com/5-must-know-tips-for-preparing-a-bid-addressing-the-key-points-in-your-proposal-to-the-government

Unstated evaluation criteria and waived solicitation requirements

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This week we’ll discuss two protest arguments that are, in some ways, two sides of the same coin: unstated evaluation criteria and waived or relaxed solicitation requirements.

In each, the focus of the protest is on what was required (or not required) by the solicitation and whether the agency’s evaluation was consistent with the information provided to offerors in the solicitation.

  • Unstated Evaluation Criteria – Under an unstated evaluation criteria theory, the protester must show that it was faulted for a weakness, or the awardee was credited with a strength, that has no logical relation to the stated evaluation criteria.
  • Waived or Relaxed Requirements – While an unstated evaluation criteria protest ground may concern an agency’s application of a requirement that does not exist in a solicitation, the waived or relaxed requirement protest ground involves the agency’s failure to apply a solicitation or specification requirement.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=642102

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/

Proposals are only as strong as their weakest link

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The GAO recently denied Leidos Innovations Corporation’s protest of a determination that Leidos was ineligible to receive a $272 million award by the U.S. Army despite Leidos having both the highest-rated technical proposal and the lowest evaluated cost.

The GAO decision, which affirmed the agency’s determination that Leidos was non-responsible because one of Leidos’ subcontractors did not have the necessary base access, is an important reminder that prime contractors should thoroughly vet their subcontractors to ensure, to the extent possible, all necessary qualifications are satisfied for the associated contract.

In February 2016, Leidos was one of six contractors that responded to a request for task order execution plan (RTEP) to provide operational and sustainment logistics support for U.S. Special Operations Command’s Tactical Airborne Multi-Sensor Platform. The RTEP noted that some of the work may take place at U.S. government facilities in the U.S. Central Command (USCENTCOM) Area of Responsibility (AOR). Contractors were also on notice that they were subject to parts of the Defense Federal Acquisition Regulation Supplement, including a provision requiring contractors to comply with directives from the Combatant Commander of USCENTCOM.

Keep reading this article at: http://www.lexology.com/library/detail.aspx?g=40117ba6-744c-41ae-80f7-abbe1635226a

GAO: ‘Reasoned judgment’ required when establishing competitive range

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On May 19, 2017, the U.S. Government Accountability Office (GAO) sustained a protest filed by Pinnacle Solutions, Inc. (Pinnacle) challenging its exclusion from the competitive range in NASA procurement for aircraft logistics, integration, configuration management, and engineering services.  GAO concluded that NASA had unreasonably evaluated and assigned weaknesses to Pinnacle’s proposal and, as is relevant here, excluded Pinnacle from the competitive range based on “unreasoned distinctions[.]”

The RFP contemplated the evaluation of proposals on two non-price factors: Mission Suitability and Past Performance.  The Mission Suitability factor consisted of three subfactors, Management Approach, Technical Approach, and Safety & Health Approach which were allocated point values of 700, 150, and 150 points, respectively.  Per the source selection plan, the points corresponded to adjectival ratings: an Excellent was worth 91-100 percent of the points, a Very Good was worth 71-90 percent of the points, a Good was worth 51-70 percent of the points, a Fair was worth 31-50 percent of the points, and a Poor was worth 0-30 percent of the points.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2017/07/gao-reasoned-judgment-required-establishing-competitive-range/

GSA seeking ‘blockchain’ solutions

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Blockchain technology is coming to the federal government.

The General Services Administration is accepting quotes from IT and other tech companies regarding how blockchain and automated machine learning technologies could be used to improve the agency’s Multiple Award Schedules FASt Lane program.

The FASt Lane program is part of a broader GSA initiative that speeds up the time companies add products to the Schedule series, but GSA’s request for quotations suggests automated machine learning could reduce the amount of time humans spend reviewing documents and proposals.

Keep reading this article at: http://m.nextgov.com/emerging-tech/2017/06/gsa-seeks-blockchain-solutions/138941

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/

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