GAO: Agency Could Disclose Incumbent’s Staffing Numbers

In a solicitation seeking the award of a follow-on services contract, a procuring agency could validly disclose the number of incumbent personnel performing a particular function.

In a recent bid protest decision, the GAO held that this information was not proprietary or confidential to the incumbent, and that the incumbent was not competitively harmed by the release of the information.

Continue reading

GAO: Incumbent Contractor Not Entitled To Highest Past Performance Rating

An incumbent contractor was not entitled to “extra credit” for its status as the incumbent, nor was the incumbent entitled to the highest-possible past performance rating.

In a recent bid protest decision, the GAO confirmed that the mere fact that an offeror is the incumbent contractor does not require the procuring agency to assign the offeror a particular past performance score, so long as the agency’s past performance evaluation is reasonable.

Continue reading

Past Performance: Agency Need Not Seek Updated Information At Source Selection

Once an agency has completed its past performance evaluation it is not required to seek updated past performance information from offerors.

As demonstrated in a recent GAO bid protest decision, an agency may rely on the most recent past performance information available at the time of evaluation, and is not required to seek more recent information at the time of the source selection.

Continue reading

GAO: Agency Unreasonably Failed To Consider Incumbent Employees’ Salaries

A procuring agency unreasonably assigned an awardee an “Outstanding” score for its proposal to retain a large portion of the incumbent workforce, even though the awardee intended to offer the incumbent employees significantly lower salaries than the employees were earning on the incumbent contract.

In a recent bid protest decision, the GAO held that it was unreasonable for the agency to fail to consider whether the differences in compensation would affect the awardee’s ability to recruit and retain the incumbent workforce.

Continue reading

GAO: Agency Need Not Raise High Costs In Discussions

In discussions, a procuring agency is not required to inform a prospective contractor that its costs are higher than those of its competitors, unless those costs are so high as to be unreasonable.

This important potential limitation on the scope of discussions was at issue in a recent GAO bid protest decision, in which the GAO held that an agency had not erred by failing to inform an offeror that its proposed costs were approximately $3 million higher than the awardee’s.

Continue reading

GAO: Incumbent Contractor Not Entitled To Past Performance “Extra Credit”

An incumbent contractor was not entitled to receive a higher past performance score than its competitor simply by virtue of having performed the incumbent contract, according to the GAO.

In a recent bid protest decision, the GAO held that the procuring agency reasonably assigned the incumbent contractor the same past performance score as its competitor, and was not required to give the incumbent additional credit under the solicitation’s past performance evaluation factor.

Continue reading

Ostensible Subcontractor Rule: Lessons Learned From SBA OHA

Avoiding affiliation under the SBA’s ostensible subcontractor rule can be difficult, especially since the ostensible subcontractor rule itself, 13 C.F.R. § 121.103(h)(4), does not provide many examples of the factors that may cause ostensible subcontractor affiliation.

A recent decision of the SBA Office of Hearings and Appeals, Size Appeal of InGenesis, Inc., SBA No. SIZ-5436 (2013), demonstrates that even when a proposed subcontractor will play a major role in the procurement, ostensible subcontractor affiliation may be avoided if the parties carefully structure their relationship.

Continue reading