Georgia Tech Procurement Assistance Center

GAO denies protest to LPTA solicitation ridden with cost uncertainty and local zoning code conflicts

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Federal agencies have long been afforded wide discretion in defining solicitation requirements to meet their contracting needs.  But are a solicitation’s requirements acceptable even where they’re likely to conflict with local zoning codes?  What about where the solicitation documents conflict with one another on whether certain requirements are considered “requirements” at all?  And finally, is an LPTA procurement acceptable where such conflicts have undoubtedly led to price uncertainty among the bidders?

GAO says, “yes” to all of these, so long as the requirements meet the agency’s needs.

In Flaherty Family Trust, B-414563.3 (Aug. 16, 2018), GSA issued an RLP seeking to lease a “professional” office space location for the Department of Homeland Security U.S. Customs and Border Protection port in Savannah, Georgia. GSA anticipated award to the lowest-price technically-acceptable offeror.  The main RLP contained general internal space qualifications. But a separate “Agency Special Requirements” document provided specialized usage and internal space specifications that were inconsistent with the main solicitation. The RLP also required 44 government parking spaces with an additional 96 public-parking spaces within a quarter mile. But these parking specifications did not comply with local county zoning codes for majority of potential office locations.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/gao-denies-protest-to-lpta-solicitation-ridden-with-cost-uncertainty-and-local-zoning-code-conflicts/ 

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/

Vendors challenged more federal contracts in 2018

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The number of bid protests filed against the federal government increased less than 1 percent last year, but contractors continue to get some sort of recompense from the agencies they’re challenging, according to a Government Accountability Office annual report.

Contractors filed 2,607 bid protests in fiscal 2018, an uptick from 2,596 in fiscal 2017. The number of bid protests has been increasing since 2013, except for fiscal 2017 when they dropped 7 percent.

The office closed 2,642 cases during the year, which breaks down as 2,505 protests, 53 cost claims and 84 requests for consideration. Even though the office saw a slight uptick in protests filed, they sustained them at a lower rate—15 percent—than in fiscal 2017.

Keep reading this article at: https://www.nextgov.com/cio-briefing/2018/11/vendors-challenged-more-federal-contracts-2018/153148/

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/

SBA proposes big changes to the HUBZone program

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The SBA’s Historically Underutilized Business Zone program intends well—by directing awards to contractors in regions that have been passed by economically, the federal government has tried to lift these areas up.

But the HUBZone program has exacting regulations, which (ironically) have helped cause it to be an underutilized tool for contracting officers. This could soon change.

On October 31, the SBA published a proposed rule that, if adopted, would bring clarity to the HUBZone regulations. In this post, we wanted to bring you up to speed on some of the more substantive proposed changes regarding certification requirements and the HUBZone protest process. Changes to employee definitions and requirements will be handled in another post.

Keep reading this article at: http://smallgovcon.com/hubzone-program/sba-proposes-big-changes-to-the-hubzone-program/

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

Ruling highlights bid protester standing issues

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A protester must have a genuine stake in the government decision it hopes to challenge. Protesters do not have standing to challenge procurements they cannot hope to perform. There is friction, however, between the need for courts to consider the standing of protesters (e.g., their ability to perform a challenged contract) and the exclusive authority of the procuring agency to perform evaluations. The Federal Circuit’s Sept. 19, 2018 decision in CliniComp provides an illustration of this friction.

In CliniComp International Inc. v. U.S., the protester challenged a proposed sole-source award of a national electronic health records contract by the U.S. Veterans Administration to a much larger competitor. The Federal Circuit affirmed the underlying quasi-evaluation by the U.S. Court of Federal Claims decision, which compared CliniComp’s current operations with the details of the proposed sole-source contract. The Federal Circuit upheld the COFC’s finding that CliniComp did not have standing, as it had not shown itself to be capable of performing a national contract much larger than any of its current efforts.

While the decision is technically limited to protests challenging sole-source awards, the opinion could be read to suggest that even protesters challenging the terms of a solicitation may need to submit significant evidence at the outset of a protest to demonstrate that they could credibly propose to perform the full scope of work contemplated by the agency. Practitioners should take heed of the potentially critical importance of this threshold showing.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=740592

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

5 questions answered about size protests

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Wouldn’t you like to know five things about size protests and appeals?

Matthew Schoonover, partner at Koprince Law LLC, recently wrote an interesting article about size protests, specifically answering five questions you need to know about.  These are the questions he posed:

  1. What is a size protest?
  2. Who can challenge a company’s size?
  3. How are size protests decided?
  4. Can I appeal an adverse size determination?
  5. What else should I know about size protests and appeals?

Click here to read the answers to these questions: http://smallgovcon.com/five-things/size-protests-and-appeals/

Yes, an agency can change the NAICS code from one iteration of a contract to the next

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Click image above to open SBA’s Size Standards table.

As the incumbent contractor, you’re excited to bid on the successor contract.  The day it’s posted, you dash to fbo.gov, pull up the solicitation, and breathe a sigh of relief: the contract is still exclusively a small business set-aside.

But wait!  Under the assigned NAICS code your business doesn’t fall below the size standard.

Can the agency change the NAICS code from one iteration of the contract to another?  Sure, so long as the selected NAICS code meets the regulatory standard.

In NAICS Appeal of STG, Inc., SBA No. NAICS-5936 (2018), OHA considered a solicitation, issued by the Department of the Army, for “[n]on-personal information technology (IT) services and support requirements.” The contracting officer assigned the procurement NAICS code 541513, Computer Facilities Management Services, which carries a $27.5 million size standard. STG, the incumbent contractor, disagreed with that selection. It contended that the NAICS code, assigned to the existing contract, was the correct one, namely NAICS code, 517110 (now NAICS code 517311), Wired Telecommunications Carriers, with a 1,500-employee size standard.

Keep reading this article at: http://smallgovcon.com/uncategorized/yes-an-agency-can-change-the-naics-code-from-one-iteration-of-a-contract-to-the-next/

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