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Contracting success in a changing government environment

March 4, 2015 By ei2admin

Behind many contracting issues today is the implied topic of who is or isn’t winning contract awards. In the private sector, it’s rare to attribute lack of business success to the customer. Certainly in a commercial market, industry success and failure is usually laid at the feet of company management and its ability to understand and meet market needs. Not so in government contracting.

Along with well-structured protest procedures, industry can and does appeal to government legislative representatives, investigatory bodies, contracting managers, trade groups, and agency leaders concerning any real or perceived unfair treatment before, during, or after contract performance. One regularly hears rationale that the buyer, not the seller, was at fault for lost business and revenue. It’s common practice, if not encouraged by government, for industry to openly critique customer policy, processes, strategy, requirements, and staff. These critiques include time of awards; market conditions; workforce training; communication; sensitivity to private sector concerns; selection methodology; risk mitigation; receipt of external advice (program, technical, incumbents, business, legal, trade groups, etc.); past performance criteria; and more. That’s the nature of an open and fair process.

Keep reading this article at: http://www.federaltimes.com/story/government/acquisition/blog/2015/02/25/contracting-success-changing-government-environment/23993719/

Filed Under: Contracting Tips Tagged With: bid protest, DCAA, fair and reasonable, fair treatment, marketplace, past performance, risk assessment, selection, source selection, unfair treatment

The government’s duty of good faith and fair dealing

May 8, 2014 By ei2admin

The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010).

There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the effect of taking away one of the benefits that had been promised to the contractor.

Although the decision concerned a timber sales contract not a procurement contract, when I wrote it up in the May 2010 Nash & Cibinic Report (24 N&CR ¶ 22), I expressed the fear that the reasoning would be subsequently applied to procurement contracts.

My fear was realized in a construction contract case, Metcalf Construction Co. v. U. S., 102 Fed. Cl. 334 (2011). In that decision, the judge described eggregious conduct on the part of the government officials that would have been held to be a breach of the implied duty of good faith and fair dealing under many earlier cases.

Keep reading this article at: http://www.wifcon.com/discussion/index.php?/blog/47/entry-3042-the-governments-duty-of-good-faith-and-fair-dealing/ 

Filed Under: Contracting Tips Tagged With: fair treatment, fairness, good faith, negotiation, unfair treatment

GAO releases report on bid protests in FY13

January 15, 2014 By ei2admin

The Government Accountability Office (GAO) recently released its annual report to Congress on bid protests filed and acted upon during fiscal year 2013 (FY13).

The report reveals that during FY13, the GAO received 2,429 cases, including 2,298 protests, 56 cost claims, and 75 requests for reconsideration.   A total of 2,538 cases were closed during the fiscal year.

Notably, the most prevalent reasons for sustaining protests were: 1) failure on the part of federal agencies to follow their stated bid or proposal evaluation criteria; 2) inadequate documentation of the record by agencies; 3) unequal treatment of offerors; and 4) unreasonable price or cost evaluation.

Further details can be seen on the following chart.

FY 13 Bid Protest Stats - GAO

FY 13 Bid Protest Stats - GAO - notes to chart

A copy of the complete GAO report can be accessed here: GAO Bid Protest Annual Report to Congress FY 13 – Jan. 2 2014

 

 

Filed Under: Contracting News Tagged With: bid protest, cost and price, evaluation criteria, GAO, price analysis, unequal treatment, unfair treatment

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