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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Government’s Engineers Couldn’t Modify Contract, Says ASBCA

A construction contractor was unable to recover the costs of performing changed work allegedly ordered by the government’s project engineers because the engineers did not have authority to modify the contract.

As demonstrated in a recent Armed Services Board of Contract Appeals decision, only a contracting officer or the contracting officer’s designated representatives may modify a contract, and a contractor bears the risk of non-payment by performing changed work directed by an unauthorized government employee.

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Buy Indian Act: Implementation Needs Improvement, Says GAO

The implementation of the Buy Indian Act set-aside program suffers from inconsistencies and uncertainties–including the fundamental question of whether Buy Indian Act set-asides are to be prioritized over other set-aside contracts.

In a recent report on the Buy Indian Act, the GAO uncovered a disturbing lack of effective oversight and implementation, and made several recommendations to enable the government to maximize the effectiveness of the Buy Indian Act.

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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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SmallGovCon Week(s) In Review: June 29 – July 10, 2015

We took a break from SmallGovCon Week In Review last week to take time and relax over the 4th of July holiday and enjoy some fireworks! Here’s hoping that you and yours enjoyed the holidays, as well.

If you were too busy with Independence Day festivities to keep up with government contracting news, no worries.  We have you covered, with stories about a major False Claims Act settlement, a nearly four-year prison sentence for kickbacks, and campaign contributions by federal contractors, among other developments.

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ASBCA Appeals: Former Employee Could Not Represent Contractor

A former employee could not represent a contractor in an appeal filed with the Armed Services Board of Contract Appeals, even though the contractor’s owner had asked the former employee to serve as its representative.

In a recent decision, the ASBCA reiterated that, under its rules, a corporation must be represented by an officer or an attorney.  A former employee does not qualify.

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