Tag Archives: discussions

COFC Clarifies When Agency Must Seek Clarification

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Agencies have some discretion to seek clarification of a question after reviewing a proposal. But when must the agency do so? GAO allows agencies substantial discretion in choosing whether or not to seek proposal clarifications. But the Court of Federal Claims has a dramatically different standard than GAO for reviewing when an agency must seek clarification for a proposal.

A recent Court of Federal Claims decision confirms (as in a 2016 decision) that agencies should seek clarification for obvious proposal errors. But according to the court, there is a difference between an obvious proposal error and a calculated decision on the contractor’s part. This decision was about how to tell the difference.

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GAO: Agency Conducted Price Realism Analysis and Misled Protester

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Unless a solicitation for a fixed-price contract provides that the agency can conduct a price realism analysis, it can’t. Even so, agencies sometimes perform this analysis without alerting prospective offerors of the possibility.

If they do, however, the ground is fertile for a protest.

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GAO: No Set Aside Required Where Offerors’ Prices Too High

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An agency was justified in canceling a small business set-aside solicitation–and reissuing the solicitation on an unrestricted basis–where the agency determined that the prices offered by small businesses were too high.

In a recent bid protest decision, the GAO confirmed that while the FAR’s “rule of two” set-aside requirement provides a powerful and important preference for small businesses, it doesn’t require an agency to pay more than fair market value for products or services.

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GAO: Oral Final Proposal Revisions Were Permissible

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An agency did not act improperly by allowing for oral final proposal revisions, rather than permitting offerors to submit written FPRs following discussions.

In a recent bid protest decision, the GAO held that–at least in the context of a task order awarded under FAR 16.505–an agency could validly accept oral revisions to offerors’ proposals.

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GAO: Unequal Opportunity To Revise Pricing Was Improper

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An agency acted improperly by inviting the ultimate contract awardee to revise its pricing, but not affording that same opportunity to a competitor–even though the awardee didn’t amend its pricing in response to the agency’s invitation.

According to a recent GAO bid protest decision, merely providing the awardee the opportunity to amend its pricing was erroneous, regardless of whether the awardee took advantage of that opportunity.

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GAO: Agency Need Not Perform Calculations For Offeror

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An agency ordinarily is not required to perform calculations to determine whether an offeror’s proposal complies with a solicitation’s requirements, according to the GAO.

In a recent bid protest decision, the GAO rejected the protester’s argument that, in determining whether the proposal satisfied certain requirements, the agency should have used the information in the proposal to perform certain calculations. Continue reading →

GAO: Offeror’s High Labor Hours Need Not Be Raised In Discussions

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An agency was not required to inform an offeror that its proposed base year labor hours were too high, even though the offeror proposed more than twice as many labor hours as the awardee.

In a recent bid protest decision, the GAO held that a procuring agency did not act improperly by failing to raise the protester’s high labor hours in discussions, because the protester’s labor hours, while much higher than the awardee’s, were not deemed unacceptably high under the RFQ’s lowest-price, technically acceptable evaluation scheme.

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