GAO Bid Protests: No Small Business Size Challenges (Usually)

To regular SmallGovCon readers this may seem obvious, but protesters keep doing it, so it deserves a post.

By “it,” I mean filing small business size challenges as part of GAO bid protests.  As demonstrated once again in a recent GAO bid protest decision, the GAO typically lacks jurisdiction over size challenges, which must be filed with the SBA.

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Affiliates’ Past Performance: Solicitation Terms Control

Although an agency may consider the past performance of an offeror’s affiliates under certain circumstances, the extent of the agency’s past performance review is governed by the terms of the solicitation.

In a recent bid protest decision, the GAO held that an agency properly refused to consider the past performance of the offeror’s parent company because the solicitation restricted the scope of the agency’s past performance review.

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GAO: USDA Improperly Awarded $141 Million Sole Source Contract

The U.S. Department of Agriculture improperly awarded a $141 million sole source contract in exchange for the contractor’s agreement to withdraw a GAO bid protest.

According to a recent GAO bid protest decision, the award violated the Competition in Contracting Act, which does not permit an agency to award a sole source contract in exchange for a contractor’s promise to terminate litigation against the agency.

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GAO: Price Revisions Allowed In FPRs Unless Expressly Limited

According to the GAO, an offeror may revise its price as part of a final proposal revision, unless the procuring agency expressly limits the scope of proposal revisions.

In a recent bid protest decision, the GAO held that the agency properly accepted the awardee’s revised price because agency had not limited the scope of discussions so as to exclude price revisions.

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VA SDVOSB Set-Asides Not Required For Prosthetics, Says GAO

The VA is not required to prioritize SDVOSB set-asides when it obtains prosthetic appliances and related services, according to the GAO.

In a recent bid protest decision, the GAO held that a specific statutory exemption allows the VA to procure prosthetic appliances and related services in whatever manner the VA deems best, without regard to the ordinary requirement that the VA prioritize SDVOSB acquisitions.

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GAO: Small Business Set-Aside Did Not Violate Bundling Restrictions

A small business set-aside procurement did not violate the FAR’s restrictions on contract bundling, according to the GAO.

In a recent bid protest decision, the GAO pointed out the bundling occurs when a procurement would be unsuitable for award to small business, and held that a set-aside procurement–by its nature–is not unsuitable for small businesses.

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Past Performance: Agency Reasonably Considered Quantity

An agency reasonably considered the quantity of offerors’ relevant past performance, even though the solicitation only stated that the relevance and quality of past performance would be considered.

In a recent bid protest decision, the GAO held that the quantity of an offeror’s past performance is logically encompassed within a review of the quality of past performance, and need not be separately identified as an area of evaluation.

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