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.
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.
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.
A procuring agency was not required to consider the past performance of an offeror judged to be technically unacceptable, according to a recent bid protest decision of the U.S. Court of Federal Claims.
In The Alamo Travel Group, LP v. The United States, No. 12-764C (2012), the Court rejected an incumbent contractor’s argument that an agency could not properly exclude the incumbent’s proposal without first considering its past performance–which, the incumbent argued, would demonstrate its ability to successfully perform the contract.
You would think a company as large as Northrop Grumman would know how to avoid ostensible subcontractor affiliation with a small prime, wouldn’t you?
You’d be wrong. In a recent SBA Office of Hearings and Appeals decision, a Northrop Grumman entity entered into a teaming arrangement with a small prime, in which all three key employees identified in the proposal were employed by the large subcontractor. The result: ostensible subcontractor affiliation.
How easy would be for you to obtain resumes and signed letters of intent from your competitor’s employees?
If you answered “not very,” you’re not alone. A small business contractor, Maritime Institute Inc., recently protested the terms of a Navy solicitation, complaining that the solicitation unreasonably forced Maritime to obtain resumes and signed commitment letters from prospective employees, including any incumbent personnel Maritime intended to hire. According to the GAO, however, the Navy’s requirement was perfectly reasonable–notwithstanding any competitive advantage to the incumbent.
Bidding against an incumbent prime contractor often presents unique challenges. In some cases, the incumbent has been highly successful, and the procuring agency may hope to award the follow-on to the same company. Even if the agency is not predisposed to favor the incumbent, the incumbent often knows more than its challengers about how the new procurement will actually operate “in real life.”
But just because an incumbent has unique information about the ongoing procurement does not mean that the procuring agency is necessarily required to level the playing field by releasing that information to challengers. For instance, in one recent GAO bid protest decision, the GAO held that the procuring agency was not required to release the names of the incumbent’s subcontractors or other proprietary and confidential information about the incumbent contract.
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