Keep Those FedEx Receipts!

Diversified Maintenance Systems, Inc. (“DMS”) filed a complaint in the U.S. Court of Federal Claims (“COFC”), alleging that it had submitted to the Army a certified claim seeking cost and time increases on its Army contract. DMS stated in the complaint that it had never received a final decision from the contracting officer on its claim. In response, the Government argued that the claim had never been submitted to the contracting officer, and thus that the COFC lacked jurisdiction to hear the appeal. DMS contended that any allegation in the complaint, including its assertion that the COFC had jurisdiction, should be presumed to be true. Therefore, DMS argued, its assertion that it submitted a claim to the contracting officer before appealing to the COFC must … Continue reading

“Late is Late” Rule for Proposals has Limits

Two offerors, Insight Systems Corp. (“Insight”) and Centerscope Technologies, Inc. (“Centerscope”) electronically submitted quotations in response to a USAID solicitation. The USAID’s computer server malfunctioned and failed to forward on the quotations internally within USAID. Consequently, the contracting officer did not receive the quotations in her email inbox by the submission deadline and pronounced the quotations late. After USAID awarded the contract to a third company, Centerscope and Insight protested the award to the U.S. Court of Federal Claims (COFC). The Government’s position was that “late is late”, and it was therefore irrelevant that the submission delay occurred as a result of the Government’s computer malfunction. This “late filing” rule makes it an offeror’s responsibility to ensure that the proposal is timely delivered. The protesters … Continue reading

Coast Guard’s Fat Requirements for Dry Suits All Wet Says GAO

The Coast Guard issued a delivery order under a GSA Schedule contract to U.S.I.A. Underwater Industrial Apparel (“USIA”) for 777 underwater dry suits. USIA delivered the first 100 suits with an invoice for $59,000. The Coast Guard tested these suits and found they did not meet the specifications for an adjustable Velcro neck. After discussing the problem, the parties signed a bilateral modification “to change the delivery date, change the specification, and add a first article requirement.” The Coast Guard did not return the 100 suits to USIA. USIA then delivered 120 more suits with the new adjustable neckline. The Coast Guard again tested the suits and determined that 32.5% of the suits leaked. The Coast Guard then issued a cure notice for the delivery … Continue reading

Document, Document, Document!

Nexant, Inc. (“Nexant”) protested to the GAO the award of a US Agency for International Development (“USAID”) contract to Deloitte Consulting, LLP, on the grounds that USAID (1) failed to conduct meaningful discussions, (2) applied an unreasonable evaluation of the strengths and weaknesses of the proposals, and (3) failed to document the basis for its source selection decision. The GAO sustained the protest on all three grounds.   Agencies are not required to conduct discussions with offerors, but if they do, the discussions must be meaningful. Meaningful means that the agency must identify deficiencies and weaknesses in a manner that enables offerors an opportunity to address them. Here, the GAO found that USAID failed adequately to convey its concerns with Nexant’s proposal. For example, in … Continue reading

Agencies that Conduct Discussions Must Raise ALL Concerns

Mission Essential Personnel (“MEP”) was one of three companies that held a multiple-award task order contract to provide intelligence support services for the Department of the Army in Afghanistan. The Army issued two task order solicitations. After receiving proposals, the Army engaged in a round of discussions, then solicited and received revised proposals from the three contract holders. The agency awarded the task orders to L-3 STRATIS and this protest by MEP ensued.   To evaluate the proposals, the Army identified three factors: (1) turnover in the firm’s program manager position, (2) delays in submitting invoices, and (3) the adequacy of the firm’s “fill rate” in providing personnel. It then assigned each contract holder a “Go” or “No Go” rating indicating whether or not it … Continue reading

No Other Qualified Bidder Exists to Preclude Going Sole-Source? “Duh?” Says COFC

From 2004-2009 the United States Air Force contracted with Harris IT Services Corporation for support services for the Air Force’s Command Man-Day Allocation System (“CMAS”). (The GAO said it found the history of this contract “somewhat obscure”.) Under the 2004 contract, the Air Force needed to recompete the contract by March 31, 2010. Starting in 2009, Innovation Development Enterprises of America, Inc. (“IDEA”), a competitor and former subcontractor to Harris, repeatedly asked the Air Force to be notified of the upcoming procurement.   By April 1, 2010, the Air Force had taken no steps to procure a follow-up contract. Two weeks later, on April 15, 2010, the Air Force issued a “bridge” contract to Harris along with an RFP for a sole-source award to Harris. … Continue reading

GAO Protest Denial Not an “Optimal” Solution

Optimal Solutions & Technologies (“OST”) protested the issuance of a task order to Metters Incorporated by the Department of Homeland Security on the grounds that DHS improperly evaluated the offerors’ proposals. The evaluation criteria for this best value procurement included technical capability, small business participation, and past performance. OST’s quoted price was $4,692 lower than Metter’s quoted price, but OST ranked lower on technical capability. After evaluating all of the factors, DHS determined that Metters’ higher score on non-price factors outweighed OST’s lower price.   OST argued that the Contracting Officer improperly evaluated OST’s proposal on the Small Business Participation factor and two subfactors:  Maximization of Small Business Opportunities and Participation in DHS Mentor-Protégé Program through among other considerations, consideration of the percentage of work … Continue reading

Agency Lacks Jurisdiction to Hear Agency-Level Protest ???

If an agency lacks jurisdiction to decide a particular agency-level protest, can its dismissal of that protest on the grounds that the agency didn’t have jurisdiction to hear the protest in the first instance really be considered “adverse agency action”? In a protest before the GAO, Logis-Tech, Inc., a small business, protested award of a task order to Professional Solutions Delivered LLC (PSD). Logis-Tech argued that the Marine Corps misevaluated its proposal submitted in response to a USMC request for task order proposals (RFTOP). To determine which vendor provided the best value, the Marine Corps evaluated price and three non-price factors: understanding and approach, staffing and personnel, and past performance. Price was of equal importance to the three non-price factors combined. In its evaluation, the … Continue reading

The Day the Trim on the Supreme Court’s Windows Served to Trim the Doctrine of Superior Knowledge

Grunley Construction Company Inc. requested an equitable adjustment from the Architect of the Capitol (“AOC”) under a contract to retrofit or replace the Supreme Court’s first floor windows with windows that would be able to withstand an explosion. Grunley subcontracted the window and trim manufacturing to Masonry Arts, Inc. (“MAI”).   The solicitation contained a drawing of the exterior view of the windows. The drawing provided measurements depicting the windows as rectangles, although the AOC knew some were trapezoidal. Above the drawing, the solicitation stated, “NOTE: ALL WINDOW DIMENSIONS TO BE FIELD VERIFIED FOR ALL SIDES. SOME WINDOWS MAY BE TAPERED.” Grunley did not measure the windows before signing the contract or measure the trim before having its subcontractor manufacture the windows. Accordingly, the trim … Continue reading

Quoth the Raven: “Blue & Gold” – Disappointed Offeror Must Protest RFP Modification Before Award

In August 2010, DoD issued an RFP contemplating a multiple-award contract for a basic agreement and two task orders. Fourteen bidders, including “Comint Systems Corporation and Eyeit.com, Inc. Joint Venture” (Comint) submitted proposals for the basic agreement and the two task orders. After proposals had been submitted, DoD amended the RFP. The amendment stated that the Government would not award the two task orders for which proposals had been solicited. Rather, the task order proposals would be considered solely for the purpose of evaluating proposals for the basic contract. The amendment stated that DoD would not accept any proposal revisions. The following day, Comint submitted a signed acknowledgment of the amendment. Several months later, In April 2011, the DoD awarded the contract to three other … Continue reading