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 Recently, the Court of Federal Claims considered the question of whether the offer was no longer in effect after the agency had sent an “unsuccessful offeror” letter to a contractor.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

EVERYONE WISHES AGENCIES WOULD COMPLY, BUT…

On January 5, 2017, the Acting Administrator for Federal Procurement Policy issued a “Myth-Busting” memorandum on the importance of agencies giving good debriefings. As readers know, Federal Acquisition Regulation (“FAR”) 15.505 provides for pre-award debriefings and FAR 15.506 and 16.505 provides for post-award debriefings. These sections of the FAR explain when debriefings are required, who has a right to a debriefing, and what information may and may not be shared with contractors. The Administrator’s memorandum attempts to convince agencies that they should give first-class debriefings in order to help maximize the return on acquisition investment, which was $440 billion in fiscal 2015. It’s a commendable memo, and we can only hope that agencies will follow its advice, but that remains to be seen. The memorandum … Continue reading

POORLY WRITTEN PROPOSALS—WHAT HAPPENS?

Well-written proposals in response to government contract solicitations are important for any contractor who wants to obtain federal contracts. There is a flourishing industry on the internet and in the consulting world that provides contractors with assistance in proposal writing. Perhaps more contractors should avail themselves of those services? The problem is that many contractors are unable to write a readable, concise, convincing and responsive proposal. That’s what happened to MacAulay-Brown, Inc. in a proposal it submitted to the General Services Administration (“GSA”) for information technology (“IT”) services in support of intelligence activities for the U.S. Army. (GSA was procuring IT services on behalf of the Army). MacAulay-Brown, Inc., B-413311 et al, Sept. 29, 2016. One key problem in MacAulay-Brown’s proposal was that instead of … Continue reading

The PCI Network – Character Traits for a Great Government Contracts Professional

In this episode of The PCI Network, the head of our FUN with the FAR series, Stephen Daoust, discusses the four traits of a great government contracts professional. Throughout his 25-year career, Steve has worked as a Chief Government Contracts Counsel, Director of Contracts, and Chief Compliance Officer for both publicly traded companies like Iridium and Affiliated Computer Services and large accounting firms like PricewaterhouseCoopers, where he was asked on a daily basis to provide expert advice and counsel on the negotiation and administration of contracts with federal, state, and local Governments. Check out what he has to say below!

GAO SUSTAINS INCREASE IN 2016

The Government Accountability Office (“GAO”) released its annual bid protest report to the congress for fiscal year 2016 on December 15, 2016 (B-158766).  The GAO actually received nearly 2,800 protests in FY2016, but dismissed or immediately denied nearly 80 percent of them, while actually considering and issuing decisions on only 616 protests, known as “merit decisions. The sustain rate increased from an unusually low 12 percent in 2015 to an unusually high rate of 23 percent in 2016.  The actual number of sustained protests doubled from 68 in 2015 to 2016.  All of this took place while the number of actual bid protest decisions decided on the merits remained about the same (587 in 2015 and 616 in 2016). The GAO bid protest statistics for … Continue reading

WHERE DO ACTION OFFICERS DREAM UP THESE SCHEMES?

In the Army, much of the staff work is performed by Action Officers (“AO”) whose job it is to “make things happen.” Unfortunately, some AO’s are so dedicated to making something happen that they skirt the procurement laws or regulations. That is what appeared to happen in Augustawestland North America, Inc. v. United States and Airbus Helicopters, Inc., No. 14-877C (Aug. 24, 2016). In the case, the court stopped a clever attempt to undermine the Competition in Contracting Act (“CICA”) and part 6.3 of the Federal Acquisition Regulation (“FAR”). The case is procedurally complex, but easy to understand. In August 2013, the Army Chief of Staff issued an Aviation Restructure Initiative (“ARI”) that required the entire Army institutional training fleet to consist of only UH-72s … Continue reading

THE CONSEQUENCES OF ABUSING THE PROTEST PROCESS

Latvian Connection LLC submitted 150 protests to the Government Accountability Office (“GAO”) during the first eleven months of fiscal year 2016. These protests challenged a wide variety of acquisitions (some of which were fully performed years earlier) conducted by numerous contracting agencies. Of the 131 protests closed by the GAO, one was denied on the merits and the remaining protests were all dismissed, the most common reason being that Latvian was not an interested party—i.e. it wasn’t an actual or prospective bidder whose direct economic interest would be affected by the protest. Latvian Connection LLC, B-413442, Aug. 18, 2016. The GAO noted that Latvian’s most common allegations were that agencies had failed to set aside acquisitions for Small Disadvantaged Veteran Owned Small Businesses and/or that … Continue reading

A FOOTNOTE ABOUT DISCUSSIONS AND FINAL PROPOSAL REVISIONS

In a recent blog, I explained that an agency does not need to give offerors a chance to submit a second final proposal revision. See “Don’t Hurt Your Chances to Win in Your Final Proposal Revisions,” Sept. 7, 2016. So if you introduce problems or deficiencies in your final offer, you are likely to lose a contract award. TASC, Inc., B-412674, August 25, 2016. Another Government Accountability Office (“GAO”) protest adds a further thought about discussions and deficiencies in final proposal revisions. URS Fed. Servs, Inc., B-41304 et al., July 25, 2016. In URS, a best value source selection, the solicitation required resumes for eight key personnel in order to demonstrate the offeror’s ability to meet the requirements. The unavailability of a key person was … Continue reading

DON’T MESS WITH PAGE AND SPACING LIMITATIONS

Two recent Government Accountability Office (“GAO”) protests give a very clear picture that offerors must ensure that their proposals comply with and do not evade page or spacing limitations specified in a solicitation. Tetra Tech AMT, B-411934, May 17, 2016; DKW Communications, Inc., B-412652, May 2, 2016. In both cases, GAO held its standard position that when an agency establishes a page limit in a solicitation, it need not read any pages in a proposal that exceed the limit. Further, if the agency specifies in a solicitation that proposals must be single spaced, an offeror cannot manipulate the format in order to increase the word content of its proposal. In Tetra Tech, the company protested the award of a task order for information technology services … Continue reading

DON’T HURT YOUR CHANCES TO WIN IN YOUR FINAL PROPOSAL REVISIONS

In negotiated procurements, at the conclusion of discussions (negotiations), every offeror in the competitive range must be given an opportunity to submit a final proposal revision. FAR 15.307. It’s very important that offerors use care in preparing final proposal revisions, addressing only the deficiencies or weaknesses that the Government has identified, and not changing anything else. Other changes may introduce new weaknesses or deficiencies. A recent Government Accountability Office (“GAO”) case demonstrates that the agency does not need to give you a chance to submit a second final proposal revision. TASC, Inc., B-412674, August 25, 2016. So if you introduce problems in your final offer, you are likely to lose the contract award. First, a refresher on discussions and final proposal revisions. (From PCI Blog, … Continue reading