Picture this scenario: the government hires your company to do a job; you assign one of your best employees to lead the effort. He or she does such a good job that the government hires your employee away. The government then drags its feet on approving your proposed replacement and refuses to pay you for the time when the position was not staffed–even though the contract was fixed-price.
The scenario is exactly what happened to a company called Financial & Realty Services (FRS), and according to the Civilian Board of Contract Appeals, FRS wasn’t entitled to its entire fixed-price contract amount.
A would-be protester had no valid basis to allege agency wrongdoing when the protester’s allegation was that the awardee would violate a FAR performance of work clause–but the clause was not included in the solicitation.
In a recent decision, the GAO held (unsurprisingly), that a protester could not challenge the awardee’s supposed failure to comply with FAR 52.236-1 because the clause was omitted from the solicitation.
Agencies must notify offerors when price realism will be evaluated under a fixed price solicitation.
Recently, the GAO sustained a protest where a procuring agency rejected an offeror’s proposal because the offeror’s quoted prices were significantly lower than the government’s estimate–even though the solicitation did not notify offerors that price realism would be evaluated.
An agency awarding a fixed-price contract can only evaluate offerors’ proposals for price realism–that is, determine whether offerors’ proposed pricing is so low as to be unrealistic–if the solicitation calls for a price realism evaluation.
In a recent bid protest decision, the GAO confirmed that when a fixed-price solicitation does not advise offerors that a price realism evaluation will be conducted, the agency is not permitted to reject an offeror’s proposal because of unrealistically low pricing.
An agency erred by failing to conduct a price realism analysis for a time-and-materials contract with fixed-price fully-burdened labor rates.
In a recent bid protest decision, the GAO acknowledged that a solicitation of this type does not always require that the agency engage in a price realism analysis, but found that the terms of the particular solicitation called for such an analysis–and that the agency acted unreasonably by ignoring the solicitation’s requirement.
If price realism is evaluated by a procuring agency under a solicitation for a fixed-price contract, the solicitation must inform offerors that price realism will be considered, says the GAO in a recent bid protest decision.
In GAO Protest of Emergint Technologies, Inc., B-407006 (Oct. 18, 2012), the GAO sustained a bid protest because the procuring agency in question failed to inform offerors that price realism would be evaluated–and seemed to fundamentally misunderstand the concept of a price realism evaluation.
When is a competitor’s low price simply too low to be realistic? Maybe never, at least when it comes to challenging the low price in a GAO bid protest.
As seen in a recent GAO bid protest decision, when a fixed-price solicitation does not call for a price realism analysis, the procuring agency is not required to conduct one–and a competitor will not succeed in challenging the award on the basis of a supposedly unrealistically low price.