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

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

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