GAO: No Protest Under Omitted FAR Clause

A would-be protester had no valid basis to allege agency wrongdoing when the protester’s allegation was that the awardee would violate a FAR performance of work clause–but the clause was not included in the solicitation.

In a recent decision, the GAO held (unsurprisingly), that a protester could not challenge the awardee’s supposed failure to comply with FAR 52.236-1 because the clause was omitted from the solicitation.

Continue reading

GAO: On Unrestricted Solictitation, No Extra Credit For Small Business Status

An offeror on an unrestricted solicitation was not entitled to “extra credit” in the evaluation on account of its small business status.

In a recent bid protest decision, the GAO held that an agency, during its evaluation of proposals under an unrestricted solicitation, had no obligation award extra credit to the protester just because the protester was a small business.  In its decision, the GAO rejected the protester’s argument that a FAR clause establishing a policy of maximizing small business participation required the agency to give an evaluation preference to a prospective small business prime contractor.

Continue reading

GAO: Agency Reasonably Adjusted Sub’s Unsubstantiated Costs

Under a solicitation for a cost-reimbursable contract, an offeror’s proposed costs are not controlling, because the government is on the hook for the contractor’s actual and allowable incurred costs. Before making an award decision, the government must consider whether the proposed costs should be upwardly adjusted.

A recent GAO bid protest decision highlights the need for offerors bidding on cost-reimbursable work to make sure that their proposed costs are realistic and substantiated—including the proposed costs of major subcontractors.

Continue reading

Bare-Bones Organizational Chart Sinks Proposal

When a procuring agency asks for details, an offeror better provide those details–or run the risk of exclusion from the competition.

Recently, the GAO has confirmed that offerors must provide sufficient detail or run the risk of being eliminated from a competition. First, came Res Rei Development, Inc., B-40466.7 (Comp. Gen. Oct. 16, 2015), where GAO held that an agency can find a proposal technically unacceptable when it essentially parrots the terms of the solicitation. Now comes LOTOS S.r.l., B-411717.5 (Comp. Gen. Nov. 19, 2015), where GAO found that the agency had reasonably excluded an offeror from the competition based in part on the offeror’s failure to provide a detailed organizational chart.

Continue reading

GAO: Incumbent Contractor Not Entitled To Highest Past Performance Rating

An incumbent contractor was not entitled to “extra credit” for its status as the incumbent, nor was the incumbent entitled to the highest-possible past performance rating.

In a recent bid protest decision, the GAO confirmed that the mere fact that an offeror is the incumbent contractor does not require the procuring agency to assign the offeror a particular past performance score, so long as the agency’s past performance evaluation is reasonable.

Continue reading

SBA Size Determination “Not Relevant” To Subcontracting Limitation Allegation

A SBA size determination, in which the SBA found a contractor to be an eligible small business for purposes of a particular procurement, was irrelevant to the question of whether the same contractor would violate the limitation on subcontracting under a different solicitation.

In a recent bid protest decision, the GAO (correctly) rejected the procuring agency’s argument that a recent SBA size determination was evidence that a contractor would comply with the subcontracting limitation.

Continue reading

GAO: Subcontract With Incumbent Didn’t Mandate High Past Performance Score

An offeror was not entitled to a high past performance score merely because it proposed a subcontracting relationship with the incumbent prime contractor.

In a recent bid protest decision, the GAO held that an agency had properly assigned the offeror a mere “Satisfactory” past performance score, despite a subcontracting relationship with the incumbent, because the prospective prime contractor had not sufficiently demonstrated its own relevant past performance.

Continue reading