GAO: “Rule of Two” Market Research Must Examine Capabilities

When conducting market research to determine whether a small business set-aside is appropriate under the “rule of two,” a procuring agency must do more than determine whether multiple small businesses are likely to submit proposals–it must also make reasonable efforts to ascertain whether those small businesses are capable of performing the work.

In a recent bid protest decision, the GAO held that an agency had improperly issued a solicitation as a small business set-aside because the agency’s market research did not reasonably consider whether the identified small businesses were capable of performing the contract requirements.

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Agency’s Discussions Only With Awardee Were Improper, Says GAO

When a procurement agency opens discussions with one offeror, it must open discussions with all offerors within the competitive range.

In a recent bid protest decision, the GAO held that a procuring agency conducted improper discussions when it limited discussions to only one offeror.

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Pass/Fail Past Performance Evaluation: No Comparison Required

Where a solicitation contemplated a “pass/fail” evaluation of past performance, and stated that an offeror without relevant past performance would nonetheless be rated “Acceptable,” there was no basis for the agency to compare the relative quality or amount of offerors’ past performance.

In a recent bid protest decision, the GAO held that the procuring agency properly refused to give the protester credit for its allegedly superior past performance because the pass/fail evaluation scheme did not allow for such a comparative evaluation.

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Small Business “Rule Of Two” Doesn’t Apply To GSA Schedule

Agencies are not required to investigate the availability of small business offerors when ordering goods and services off the Federal Supply Schedule, even if multiple small business concerns would be able to compete for the contract.

As the GAO recently held in Walker Development & Trading Group, B-411357 (July 8, 2015), the small business preferences found in the Small Business Act do not apply when an agency uses the FSS.

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GAO: “Best Value” Tradeoff Must Consider Benefits Of Lower-Cost Proposal

In a best value tradeoff evaluation, a procuring agency must consider the benefits of a lower-cost proposal, even if that proposal’s cost is not as close to the agency’s internal cost estimate as a higher-priced proposal.

As demonstrated by a recent GAO bid protest decision, it is improper in a tradeoff analysis for an agency to refuse to consider the relative benefits of paying a lower cost for a lower-rated proposal.

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A GAO Reminder: Know Your Protest Filing Deadline

One of the first questions a contractor must ask itself before filing a bid protest with the GAO is whether its protest would be timely filed. But as a recent GAO decision highlighted, the answer to that question might not be so clear.

Contrary to a common misconception, a protest is not always timely if filed within 10 days of a debriefing. As one prospective protester learned, if the debriefing is not “required” under applicable law, a GAO protest filed within 10 days of a debriefing might be untimely.

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GAO: No Review Of Unsolicited Proposal Protest

The GAO generally will not review an agency’s decision not to accept a company’s unsolicited proposal to the federal government.

As demonstrated in a recent bid protest decision, because one of the GAO’s functions is to promote full and open competition, the GAO ordinarily will not consider a protest contending that an agency should have made a sole source award based on an unsolicited proposal.

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