Subcontractor Experience Irrelevant Where Subcontractor Won’t Perform Similar Tasks, Says GAO

Prime and subcontractor teaming is a common way for contractors to leverage the experience of the team’s anticipated subcontractors to make proposals more attractive to federal clients, particularly when past performance is a substantial evaluation consideration. This approach, however, recently ran into a snag when the proposed subcontractor was not going to perform the discrete work areas that its past performance experience supported, which lowered the past performance score of the bid. In the resulting protest, GAO concluded the agency got the evaluation right, and was not required to credit all of the subcontractor’s experience.

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Negotiation Impasse Results in Cancelled Solicitation

In any negotiation, either party may walk away from the deal at any time for any reason. While this is typically viewed as a negotiation “nuclear option,” it does happen. Unlike the private commercial space, doing business with Uncle Sam typically goes through a progression ultimately resulting in an awarded contract. As one contractor recently discovered, however, agencies still retain the nuclear option–cancelling the solicitation–if they cannot obtain value for the government.

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“We Couldn’t View the Solicitation,” Argues Protester

The first step in competing for a federal contract is knowing that an opportunity exists in the first place. In a recent protest, a contractor argued it was not able to find an opportunity despite routinely searching the appropriate federal procurement opportunity system, e-Buy. Thus, according to the protesting company, the procurement was not properly publicized and the award was improper. GAO did not agree.

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GAO Green Lights Use of IGCE in Past Performance Evaluation

Internal Government Cost Estimates (IGCEs) are frequently used to gauge the reasonableness of contractor prices during proposal evaluation. But can these internal estimates also impact other evaluation factors? GAO was recently asked to resolve this question in the context of past performance evaluations, and the answer was essentially “you sure can!”

Alright, GAO wasn’t that enthusiastic, but it did condone the use of IGCEs when evaluating past performance.

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The 8(a) Program: Our New Handbook is Available

The 8(a) program can be a powerful accelerator for those small businesses eligible to participate; however, these benefits come with substantial strings attached. As such, the fourth volume of the Koprince Law LLC GovCon Handbooks discusses this unique and heavily regulated program.

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GAO: We’re Not Wrong, But Our Original Recommendation Was Not Right

Whenever GAO issues a bid protest decision, some parties are happier than others. In limited circumstances, however, an unhappy party may petition GAO to reconsider its decision if the outcome was based on errors of either fact or law. It is extremely rare for GAO to reverse itself during a reconsideration request. That may explain why in a recent reconsideration decision, GAO maintains that its decision was correct based on the facts presented to it, but GAO nevertheless modified its recommendations substantially in the face of new facts. As a kicker, GAO also took away its recommendation that the agency pay protester’s attorney fees.

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NNSA Does Not Utilize Unique Contractor-Exclusion Authority, GAO Finds

It comes as little surprise that when it comes to nuclear security, the FAR’s full and open competition requirements take a backseat. To this end, Congress temporarily granted the Department of Energy authority to exclude contractors from nuclear weapons and security system procurements to preserve the integrity of the supply chain. A recent GAO report, however, reveals the Department of Energy is not utilizing this unique procurement authority.

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