Reminder: No Ostensible Subcontractor Protests At GAO

The GAO lacks jurisdiction to consider a challenge to a contract awardee’s size status, including questions of whether the awardee is affiliated with its subcontractor under the ostensible subcontractor rule.

In a recent bid protest decision, the GAO confirmed that it will not adjudicate an allegation of ostensible subcontractor affiliation.

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Agency Insists On Subcontract With OEM; GAO Agrees

Subcontracting is a way of life for many federal government contractors; however, the identification and selection of such subcontractors is usually left up to the reasonable discretion of the prime contractor. So what happens when a solicitation prescribes that a particular subcontractor be retained, but that subcontractor won’t assist in bid preparation efforts?

Well, in one recent case, the prospective prime contractor was out of luck.

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Price Realism: Agency Didn’t Compare Proposed Rates To Incumbent Rates

An incumbent contractor won a protest at GAO recently where it argued that the awardee’s labor rates were too low, because they were lower than the rates the incumbent itself was paying the same people.

GAO faulted the agency for concluding that the awardee’s price was realistic without checking the proposed rates against the incumbent rates. In other words, GAO told the agency to start at the obvious place—the compensation of the current employees.

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Unequal Evaluation: Incumbent Not Credited For Retaining Its Own Employees

In its evaluation of proposals, a procuring agency gave a challenger a strength for proposing to recruit incumbent employees, but didn’t give the incumbent contractor a strength–even though the incumbent contractor proposed to retain the very same people.

Unsurprisingly, the GAO found that the evaluation was unequal, and sustained the incumbent’s protest.

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Past Performance: Does Duration Matter?

Past performance evaluations normally consider two aspects of an offeror’s prior work: whether that performance was recent and relevant. But in making its best value determination, must an agency also consider the duration of an offeror’s past performance?

A recent GAO bid protest decision answered this question, at least under the rules established in the solicitation at hand. In Technica LLC, B-413546.4 et al. (July 10, 2017), GAO denied a protest challenging the sufficiency of an awardee’s past performance even though the awardee’s past performance was much shorter than the protester’s.

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GAO: Exception To Protest Timeliness Rules Didn’t Apply To NASA SBIR Competition

This story is about a glider, a balloon, the planet Venus, and Titan, the largest moon of Saturn. This subject matter is the fabric of the universe, but the lesson it teaches is as mundane as linen sheets.

A NASA Small Business Innovation Research offeror cannot always wait for a debriefing to file a GAO bid protest, because if it does, it may run the risk of the protest grounds being untimely.

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GAO: Procuring Agency Needn’t Disclose Inter-Agency Consultation

As many contractors and attorneys can attest, federal acquisitions sometimes seek items that are federally regulated, which can result in some complex compliance issues. A classic example of this interaction is the procurement of aircraft. Not only must bidders comply with the requirements of the solicitation, they must also satisfy the FAA’s airworthiness regulations.

So what happens when the FAA’s regulations and the solicitation requirements appear to be at odds? That was the question presented to GAO in Timberline Helicopters, Inc., B-414507,  (June 27, 2017), where inter-agency communications between the procuring agency and the FAA resolved the issue. And according to GAO, the procuring agency wasn’t required to disclose those communications to prospective offerors.

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