GAO: Failure To Explain Prejudice Doomed Otherwise Successful Protest

Imagine that you’re a manufacturer of appliances, and respond to a solicitation seeking one of your appliances (on a brand name basis). You, of course, propose to provide your appliance. But you lose out on an award to an offeror that submits an offer for a different appliance that admittedly does not comply with the solicitation’s minimum requirements.

In this situation, you’d probably be fairly upset. And as a recent GAO decision acknowledged, you’d likely have a successful basis of protest—that is, if you could establish that you were prejudiced by the government’s award decision, and if you understood what exactly the GAO means by “prejudice.”

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Undisclosed Agency File Size Limit Sinks Offeror’s Proposal

An offeror’s proposal was properly rejected as late because the proposal exceeded the agency’s email file size limit.

In a recent bid protest decision highlighting the importance of not submitting electronic proposals at the last minute, the GAO held that a small business’s proposal was late because the emails transmitting the proposal exceeded 10 MB–even though the solicitation didn’t mention a file size limit.

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GAO: “Brand Name Only” Restrictions Must Be Justified

Competition is the touchstone of federal contracting. Except in limited circumstances, agencies are required to procure goods and services through full and open competition. In this regard, an agency’s decision to limit competition to only brand name items must be adequately justified.

GAO recently affirmed this principle in Phoenix Environmental Design, Inc., B-413373 (Oct. 14, 2016), when it sustained a protest challenging the Department of the Interior, Bureau of Land Management’s decision to restrict its solicitation for herbicides on a brand name basis.

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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: 28-Day Proposal Period Was Reasonable

A 28-day period was sufficient time for offerors to prepare proposals in response to a solicitation for janitorial and mechanical services.

In a recent decision, the GAO held that, under the circumstances of the procurement, it was reasonable for the agency to allow fewer than 30 days to respond to the solicitation–and noted that the protester’s delayed search for teammates was a “significant reason” for the protester’s own difficulties in submitting a timely proposal.

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