Ignorance is Bliss? Not When it Comes to Timely Filing of Protest, Says GAO

Ignorance is bliss, right? Not always. In the world of government contracting, GAO recently dismissed a protest because its initial agency protest was not timely filed, reminding the protester that ignorance of the law is no excuse.

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GAO: Conversion of Sealed Bid to Negotiated Procurement Doesn’t Cure Untimely Protest

As seasoned government contractors know, an impropriety in a solicitation’s terms must be protested before the deadline to submit an offer. If the protest is submitted after the solicitation’s response deadline, the protest will be dismissed as untimely.

GAO recently held that this rule holds true when an agency converts a sealed bid (under FAR part 14) to a negotiated procurement (under FAR part 15).

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Proprietary Information Proper Basis for Restricted Solicitation Terms

While the overarching goal of the federal procurement system is to provide as many opportunities for competition as possible, there are those instances where the unique circumstances of a procurement require limiting the pool of offerors. In a recent decision, GAO determined that the need for proprietary maintenance information was a sufficient reason to limit competition.

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GAO Denies Protest to LPTA Solicitation Ridden with Cost Uncertainty and Local Zoning Code Conflicts

Federal agencies have long been afforded wide discretion in defining solicitation requirements to meet their contracting needs. But are a solicitation’s requirements acceptable even where they’re likely to conflict with local zoning codes? What about where the solicitation documents conflict with one another on whether certain requirements are considered “requirements” at all? And finally, is an LPTA procurement acceptable where such conflicts have undoubtedly led to price uncertainty among the bidders?

GAO says, “yes” to all of these, so long as the requirements meet the agency’s needs.

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Agency’s Discretion Over Solicitation’s Technical Specifications Isn’t Unlimited

A major tenet in government contracting is that agencies enjoy broad discretion in identifying their needs and developing the most appropriate solicitation to satisfy them. Though broad, this discretion is not unlimited. If challenged, an agency must demonstrate that its specifications are reasonably necessary to meet its needs and are not unduly restrictive of competition.

GAO recently affirmed this principle in Pitney Bowes, Inc., B-413876.2 (Feb. 13, 2017), when it sustained a protest challenging a solicitation’s requirements as being unduly restrictive of competition.

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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.

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GAO: No Protests Of “Insufficiently Restrictive” Solicitations

The GAO generally will not consider a protest contending that a solicitation’s specifications should be made more restrictive.

In a recent bid protest decision, the GAO declined to consider a protester’s contention that the solicitation should require offerors to demonstrate specific experience in the type of work to be performed.

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