PROTESTER HAS BURDEN OF SHOWING TIMELY ELECTRONIC DELIVERY

E-mail is a very useful tool, especially in government contracting. But the Government Accountability Office (“GAO”) recently confirmed a long line of cases where an offeror contended that it had sent in its proposal by e-mail, but the agency did not receive it and could find no evidence in its email servers of receipt. Ghazanfar Neft Gas LTD, B-414636, July 21, 2017. In this and similar cases, the GAO concluded that the protester had failed to satisfy its burden of showing that it timely delivered its proposal to the agency by email. Two sections of the FAR are important here: FAR 15.208(a) which states “[o]fferors are responsible for submitting proposals, and any revisions, and modifications, so as to reach the Government office designated in the … Continue reading

SOLICITATIONS FOR REQUIREMENTS CONTRACT MUST INCLUDE REALISTIC ESTIMATED QUANTITIES, NOT JUST HISTORICAL DATA

In a recent decision overruling the Court of Federal Claims, the Federal Circuit upheld a contractor’s claim of negligent estimates in a requirements contract, where the agency provided historical data in the solicitation, but failed to include information on anticipated troop movements and a surge of equipment and material that would become part of the contract as the units departed. Agility Defense & Gov’t Services, Inc. v. United States, 847 F.3d 1345 (Fed. Cir. 2017). REQUIREMENTS CONTRACTS A requirements contract provides for filling all of the purchase requirements of designated Government activities for supplies or services during a specified contract period from one contractor, with deliveries or performance to be scheduled by placing orders with the contractor. Federal Acquisition Regulation (“FAR”) 16.503(a). The FAR states … Continue reading

UNREASONABLE LIMITATIONS ON PROPOSAL REVISIONS DURING THE CORRECTIVE ACTION PHASE OF PROTESTS

In what appears to be a first, the Government Accountability Office (“GAO”) sustained a protest because an agency imposed unreasonably restrictive limitations on the scope of proposal revisions. In this protest, Deloitte Consulting, LLP, B-412125.6, Nov. 28, 2016, GAO held that the restrictions prevented offerors from revising proposal information that had been materially impacted by the corrective action. Deloitte protested the corrective action of the Defense Health Agency (“DHA”), taken in response to Deloitte’s prior protest of the award of a contract to another vendor for DHA’s governance, requirements and architecture management support. In its earlier sustained protest of this procurement, Deloitte alleged that DHA had conducted an unreasonable evaluation of the key personnel resumes under the staffing approach subfactor, and had unreasonably evaluated past … Continue reading

WRITTEN FINAL PROPOSAL REVISIONS ARE NOT REQUIRED IN COMPETITIONS FOR TASK ORDERS

In a recent bid protest decision, the Government Accountability Office (“GAO”) made clear that when agencies conduct competitions for task orders among holders of a multiple award contract, final proposal revisions (“FPR”) are not required, as they would be for a “normal” Federal Acquisition Regulation (“FAR”) Part 15 procurements. These task order competitions are held under the less stringent FAR Part 16 requirements. SSI, B-413486 et. al, Nov. 3, 2016. The protester here, Mid Atlantic Professionals, Inc., d/b/a SSI, was one of several multiple awardees for language, regional expertise and cultural instruction for Special Forces. The Agency (U.S. Special Operations Command) held discussions with both of the offerors. The agency found that SSI had adequately addressed the 11 issues that were identified in its proposal, … Continue reading

RE-RECURRING AGENCY MISTAKES IN DISCUSSIONS

About a year ago, this blog published two articles on discussions, “Six Recurring Agency Mistakes in Discussions” and “Once Again: Recurring Agency Mistakes in Discussions.” (May 2016.) The “number 1” mistake was: Agencies must conduct meaningful discussions. When conducted, discussions must be meaningful. That is, discussions must identify deficiencies and significant weaknesses in an offeror’s proposal that could reasonably be addressed so as to materially enhance the offeror’s potential for receiving award. It seems that this mistake doesn’t just recur, it re-recurs frequently, most recently in Mevacon-NASCO JV; Encanto Facility Servs., LLC, B-414329 et al., May 11, 2017. Mevacon is a long and complex protest involving the evaluation of an Army Corps of Engineer contract for real property services at Fort Hood, Texas. The protesters … Continue reading

GAO APPROVES NEW BEST VALUE METHOD: HIGHEST TECHNICALLY RATED WITH FAIR AND REASONABLE PRICE; COURT OF FEDERAL CLAIMS AGREES

The Government Accountability Office (“GAO”) recently deemed as permissible the use of the “highest technically rated offerors with a fair and reasonable price” evaluation scheme in order to achieve best value. Sevatec, Inc. et al., B-413559.3 et al, Jan. 11, 2017. In a preceding case, the Court of Federal Claims opined that a similar evaluation methodology, with no tradeoff of cost and technical factors, complied with FAR 15.101. Octo Consulting Group, Inc. v. United States, 117 Fed Cl. 334 (2014). Sevatec concerned the Alliant 2 procurement by the General Services Administration (“GSA”), a multiple award, indefinite quantity set of contracts for information technology services. The RFP provided that GSA would select 60 awardees using a “highest technically rated with a fair and reasonable price” evaluation … Continue reading

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

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