Task Orders: Small Business Set-Asides Not Required, Says GAO

When issuing task order solicitations under unrestricted multiple award contracts, procuring agencies are not required to apply the so-called “rule of two” and set aside task orders for small businesses.

In a recent bid protest decision, the GAO–over the objections of the SBA–held that agencies “may,” but need not, set aside task orders under multiple-award contracts.  The GAO’s decision essentially overturns a 2008 decision in which the GAO held that the rule of two does require agencies to set aside task orders.

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GAO Bid Protests: “Sustains” Lower But “Effectiveness” Steady

The GAO sustained only 13% of bid protests in Fiscal Year 2014, down from 17% in the previous fiscal year.

But although some commentators might interpret the numbers as a sign that more non-meritorious protests were filed, the “effectiveness rate” (which measures sustain decisions plus voluntary agency corrective actions) remained steady at 43%.  In other words, agencies are taking corrective action more frequently in response to GAO bid protests–but when the agency doesn’t take corrective action, the protester’s odds of success may be long.

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Past Performance: Agency Need Not Seek Updated Information At Source Selection

Once an agency has completed its past performance evaluation it is not required to seek updated past performance information from offerors.

As demonstrated in a recent GAO bid protest decision, an agency may rely on the most recent past performance information available at the time of evaluation, and is not required to seek more recent information at the time of the source selection.

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GAO Bid Protests: Gold Coast Presentation Now Available

GAO bid protests were the focus of my presentation at this year’s Navy Gold Coast conference in San Diego.  If you weren’t able to make it to Gold Coast in August, I have good news: the conference organizers have made all of this year’s presentations available online, free of charge.

My GAO bid protest presentation covers the GAO’s jurisdiction, who can file a protest, the timeliness rules, how the protest process works, protest outcomes, success rates, and more.  To view my Gold Coast presentation on GAO bid protests, just follow this link.  And don’t forget to check out the other great presentations from this year’s Gold Coast conference, too.

GAO Task Order Protests: Protester’s Price Does Not Establish Jurisdiction

The GAO’s jurisdiction over task order protests turns on whether the award price of the task order exceeds $10 million–not whether the protester’s proposed price exceeds $10 million.

In a recent bid protest decision, the GAO held that it lacked jurisdiction over a task order protest because the award price was under $10 million, even though the protester had proposed a price of approximately $11.4 million.

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Contractor Proposes Unavailable Key Employee, GAO Sustains Protest

A contractor’s proposal to use an unavailable employee to fill a key personnel position caused the GAO to sustain a competitor’s protest.

In a recent bid protest decision, the GAO concluded that a offeror failed to satisfy a material solicitation requirement concerning key personnel where the employee included in the proposal left the offeror’s employment–and the agency knew that the employee was not available to perform the contract.

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GSA Contractor Team Arrangement: Single-SIN Restriction Was Appropriate

A procuring agency reasonably required all members of a SDVOSB set-aside GSA Contractor Team Arrangement to possess a certain Federal Supply Schedule contract and Special Item Number.

In a recent bid protest decision, the GAO held that restricting CTAs to holders of a certain Schedule and SIN was appropriate because all of the supplies to be procured fell within the identified Schedule and SIN.

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