GAO: Understated Pricing Alone Isn’t “Unbalanced Pricing”

Under the FAR, unbalanced pricing may increase performance risk and can result in the government paying unreasonably high prices.  But the concept of unbalanced pricing is often misunderstood in practice.

As the GAO wrote in a recent bid protest decision, unbalanced pricing doesn’t exist merely because some of an offeror’s line item prices are low.  Rather, unbalanced pricing requires both understated and overstated line items–that is, some line items appear too high while others appear too low.

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GAO Confirms: No Protests of Most Subcontract Awards

Despite older case law to the contrary, the GAO ordinarily lacks jurisdiction to decide a protest challenging the award of a subcontract, even where the subcontract is alleged to have been made “for” the government, as in the case of some subcontracts awarded by DOE Management and Operation prime contractors.

In a recent decision, the GAO confirmed that, except in very narrow circumstances, it won’t decide protests challenging subcontract awards.

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Agencies May Use “On-Ramps” Under BPAs, GAO Confirms

When an agency solicits competitive proposals to establish multiple blanket purchase agreements, the agency may include “on-ramp” procedures to potentially award additional BPAs at a later date.

In a recent bid protest decision, the GAO confirmed that the FAR allows agencies to use on-ramp procedures to add additional BPAs–and that on-ramped BPA holders don’t enjoy an inherent unfair competitive advantage, at least not under the facts at issue.

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SDVOSB Set-Aside or Not? GAO Sustains Protest of Ambiguous VA Solicitation

A  procurement may not be set aside for SDVOSB concerns without also including mandatory VA set-aside VAAR provisions, including the limitation on subcontracting.

In a recent bid protest decision, the GAO held that a solicitation was flawed where the cover sheet indicated that the solicitation would be set aside for SDVOSBs, but the solicitation omitted the mandatory VAAR SDVOSB set-aside clause.

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GAO: Agency Shouldn’t Have Allowed Bid Correction

When a contractor submits a sealed bid that includes a mistake, the contractor may be allowed to correct its bid, if there must be clear evidence of the error on the face of the bid.

According to a recent GAO decision, however, absent clear evidence, it is unreasonable for an agency to allow a bid correction.

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Strict GAO Timeliness Rules Apply to Supplemental Protests

GAO interprets its bid protest timeliness rules very strictly, as readers of this blog will know. These timeliness rules typically pertain to the initial protest, but are equally important when a protester files a supplemental protest. Often, supplemental protests are filed after the protester receives the agency’s response and comes to learn new information that wasn’t previously available.

If a supplemental protest raises allegations independent of those set forth in the initial protest, the supplemental protest must independently satisfy GAO’s strict timeliness rules. A recent GAO decision shows how easy it can be to slip up on these deadlines when considering a supplemental protest.

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GAO: Evaluation of Affiliate’s Past Performance is Optional

In its past performance evaluation, an agency typically can consider the past performance of an offeror’s affiliate, so long as the offeror’s proposal demonstrates that the resources of the affiliate will affect contract performance.

But, as demonstrated in a recent GAO decision involving an Alaska Native Corporation subsidiary, ordinarily there is no requirement that an agency consider an affiliate’s past performance.  In other words, unless the solicitation speaks to the issue, the agency’s consideration of an affiliate’s past performance is optional.

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