DISPARATE TREATMENT IN EVALUATION OF OFFERS






It is a fundamental principle of government procurement that agencies must evaluate proposals on a common basis and in accordance with the terms of the solicitation. Agencies may not engage in disparate (unequal) treatment of offerors in their evaluation. On this subject, the Federal Acquisition Regulation (“FAR”) states that “[c]ontracting officers are responsible for ensuring performance of all necessary actions for effective contracting [and] shall [] [e]nsure that contractors receive impartial, fair, and equitable treatment. FAR 1.602-2. In a recent decision, the Government Accountability Office (“GAO”) again held that an agency engaged in disparate treatment of offerors’ past performance and sustained the protest. CSR, Inc., B-413973, Jan. 13, 2017, 2017 WL 816541. Before discussing CSR, the following are a few examples of how agencies have … Continue reading

The PCI Network – Compliance, Suspension and Debarment






This episode of The PCI Network focuses on Suspension and Debarment. David Drabkin, Director and Faculty at PCI discusses, how to maintain compliance and avoid suspension and debarment. Mr. Drabkin is currently the Director of Acquisition Policy with Northrop Grumman Corporation. There he works with Congress, Executive Agencies and Industry Associations to evaluate and promulgate acquisition policy for Federal programs ensuring the interests of the Northrop Grumman are represented in the process.

AFFIDAVITS ARE GENERALLY ACCEPTABLE IN SIZE APPEALS






The following saga of two appeals demonstrates the importance of sworn affidavits in size protests and size appeals. In the first appeal, CoSTAR Services, Inc., SBA No. SIZ-5745 (2016), the Small Business Administration (“SBA”) Office of Hearings and Appeals (“OHA”) considered two protests that Mark Dunning Industries, Inc. was not small because of affiliation with 24 different entities. The protesters (CoSTAR and Inuit) alleged that affiliation was based on family identity of interest, common investments, common ownership and common management. OHA held that there was no affiliation based on most of the allegations, but remanded the case to the Area Office to render a more complete analysis on whether there was affiliation between two individuals (Mr. Dunning and Mr. White) based on common investment. On … Continue reading

WHAT IS A PREDECESSOR COMPANY FOR PAST PERFORMANCE PURPOSES?






The Government Accountability Office (“GAO”) recently ruled that in negotiated procurement, a company cannot attribute to itself the past performance of asserted “predecessor” companies where those companies are separate and distinct companies from the offeror. Choctaw Staffing Sol., B-413434, Oct. 24, 2016. The GAO held that Choctaw’s assertion that two other companies were its predecessors was inconsistent with usage of that term in the Federal Acquisition Regulation (“FAR”). Choctaw submitted a proposal to support the Domestic Abuse Victim Advocate Program at various Air Force Military Treatment Facilities. The Request for Proposals (“RFP”) stated that in the evaluation, the Government would “take into account past performance information regarding predecessor companies and key personnel who have relevant experience.” Choctaw protested that the agency failed to properly attribute … Continue reading

CLAIMING COSTS OF PURSUING PROTESTS AT THE GOVERNMENT ACCOUNTABILITY OFFICE






A successful protester at the Government Accountability Office (“GAO”) is entitled to a GAO recommendation that the agency conducting the procurement should pay the costs of filing and pursuing the protest, including reasonable attorneys’ fees and consultant and expert witness fees; and bid and proposal preparation. 31 U.S.C. § 3554(c)(1). The law places a limit or “cap” on the fees that may be paid to attorneys of $150 per hour, except where the protester is a small business concern. Even this hourly rate may be increased where “on a case by case basis, [GAO] determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 31 U.S.C. … Continue reading

AGENCIES CANNOT PRO-RATE INVOICES UNLESS THE CONTRACT SO STATES






Have you ever had a situation where a Government Agency advised you that it would reduce or pro-rate your monthly services invoice for days not worked, but your company objected and said “that procedure is not in our contract?” The Agency response is frequently: “so what, we’re doing it anyway, you didn’t work those days.” That’s exactly what happened to Amaratek during last year’s Government shutdown. The Armed Services Board of Contract Appeals ruled the Army’s invoice adjustment to be improper, and allowed Amaratek’s claim for a full monthly invoice amount even though only six days were worked. Amaratek, ASBCA No. 59149, 15-1 BCA ¶35808. In Amaratek, the Army awarded the company a contract for laboratory services at the Yuma Proving Ground in Arizona. There … Continue reading

PROTESTER’S FAILURE TO REBUT OR SUBSTANTIVELY COMMENT






What happens when a protester submits a protest to the Government Accountability Office (“GAO”), the agency responds in its agency report with a detailed response to every assertion, but the protester fails to rebut or substantively address the agency’s arguments in its comments on the agency report? The simple answer is “protest denied.” See, e.g., Oakland Consulting Group, Inc., B-412054.2, September 19, 2016. Oakland Consulting protested its exclusion from the competitive range by the Defense Logistics Agency (“DLA”) on a procurement for information technology (“IT”) services. The DLA found one weakness, three significant weaknesses and two deficiencies which made Oakland Consulting’s proposal technically unacceptable. Oakland Consulting challenged the evaluation of all six areas in its protest. Following its usual procedure, GAO asked the agency to … Continue reading

OFFERS REMAIN OPEN EVEN IF “UNSUCCESSFUL”






Box 12 of Standard Form 33, “Solicitation, Offer and Award,” states that that the contractor agrees that if the agency accepts its offer within 60 calendar days, it will perform at the price offered. (The contractor may specify a different period for acceptance, but normally the 60 day period applies.) Recently, the Court of Federal Claims considered the question of whether the offer was no longer in effect after the agency had sent an “unsuccessful offeror” letter to a contractor. National Air Cargo Group, Inc. v. United States, No. 16-362C, (Fed. Cl. August 19, 2016). The simple answer is that the agency may accept an offer and form a contract at any time during the period of acceptance, unless the contractor withdraws its offer. National … Continue reading

The PCI Network – Three Keys to a Winning Proposal






The next episode of The PCI Network is all about putting together a winning proposal. Lou Chiarella, Director and Faculty at PCI, shares three tips to help you craft a winning proposal. Mr. Chiarella is an attorney in the Washington, D.C. area with 20 years of experience specializing in all aspects of Government contracting.  In addition to his current position, his previous experiences include: Professor of Contract and Fiscal Law, U.S. Army Judge Advocate General’s School, Charlottesville, Virginia; Chief of Administrative and Civil Law, Fort Carson, Colorado; and Trial Attorney, U.S. Army Contract Appeals Division, Arlington, Virginia.

NEW CONTRACTING OFFICER IS NO REASON TO DELAY DECISION ON CLAIM






The Contract Disputes Act (“CDA”) requires timely final decisions on claims, except when there is a reasonable basis for a delay. (See discussion below). Despite the statutory requirements, Contracting Officers (“CO”) frequently delay making a final decision on a contract claim. A recent Board case addressed a delay that was primarily due to a change in contracting officers, and concluded that “internal staffing matters are not one of the factors used to determine a reasonable time under the CDA.” Volmar Const., Inc., ASBCA No. 60710-910, October 7, 2016. What the CDA Requires: When a CO receives a claim under $100,000, the CDA requires the CO to issue a decision within 60 days “from the contracting officer’s receipt [of the claim].” 41 U.S.C. § 7103(f)(1). When … Continue reading