Georgia Tech Procurement Assistance Center

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 topsy-turvy world of state and local bid protests

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Many contractors are familiar with the well-established processes of federal bid protests.  Less known is the dizzying variety of procedures applicable to state and local bid protests.  Each jurisdiction has its own rules — in terms of timing, protestable issues, standard of review, document production, and more.  A fundamental tenet in one jurisdiction may be completely inapplicable in another.

What does that mean for a contractor looking to grow its state and local business?

Be prepared:  Become familiar with the rules and practices for bid protests in the relevant jurisdiction prior to the award decision.  When the award decision is made, you’ll be in a better position to assess whether to protest and, if so, when and how to do it.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/04/the-topsy-turvy-world-of-state-and-local-bid-protests/

GSA rescinds all awards made on $15 billion Alliant 2 Small Business contract

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The government rescinded all awards made in the $15B Alliant 2 Small Business governmentwide acquisition contract for IT services procurement last week.

The move follows an order from the Court of Federal Claims that the General Services Administration must rescore every submission it received to address errors raised in protest from Virginia-based technology company, Citizant Inc.

The Alliant 2 SB is part of one of the largest federal IT opportunities of the decade. In February 2018, GSA announced its award to 81 small business, which federal agencies would be able to access for integrated IT solutions around their “current and evolving needs.” After the announcement, protests from dissatisfied bidders ensued.

In March 2018, Citizant, Inc. protested the bid to the Government Accountability Office. GAO dismissed the file in May 2018, but Citizant took complaints to court and won this week, resulting in the rescission.

Keep reading this article at: https://www.nextgov.com/cio-briefing/2019/03/gsa-rescinds-all-awards-made-15b-alliant-2-small-business-contract/155869/

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

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