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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Agencies May Evaluate Proposals During GAO Protests, Says Court

A procuring agency was entitled to evaluate proposals during the course of a pre-award GAO bid protest without violating the automatic stay provision of the Competition in Contracting Act.

According to a recent federal court decision, CICA merely prohibits the award of a contract during the course of a GAO protest, but does not prevent an agency from continuing to evaluate proposals.

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GAO: Small Business Set-Aside Did Not Violate Bundling Restrictions

A small business set-aside procurement did not violate the FAR’s restrictions on contract bundling, according to the GAO.

In a recent bid protest decision, the GAO pointed out the bundling occurs when a procurement would be unsuitable for award to small business, and held that a set-aside procurement–by its nature–is not unsuitable for small businesses.

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Solicitation Improperly Excluded Affiliates’ Past Performance, Says GAO

According to the GAO, a solicitation was unduly restrictive because it prohibited the consideration of the past performance of an offeror’s affiliates–even when the affiliates would contribute to performance of the contract.

The GAO’s bid protest decision in Iyabak Construction, LLC, B-409196 (Feb. 6, 2014) demonstrates that agency restrictions on the consideration of past performance must be reasonable.  However, the Iyabak Construction decision should not be interpreted as standing for the principle than an agency can never exclude the past performance of an offeror’s affiliates if those affiliates will contribute to contract performance.  Rather, the case suggests that it was the government’s failure to offer a good explanation–not the underlying restriction itself–that led to the “sustain” decision.

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GAO Bid Protest Jurisdiction: No Intellectual Property Disputes

The GAO’s bid protest jurisdiction does not extend to complaints that a government agency has violated a company’s intellectual property rights.

According to a recent GAO bid protest decision, the GAO lacks jurisdiction over intellectual property matters, and affected companies must seek relief in the federal courts.

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GSA Schedule: “Brand Name Only” Restriction Not Justified

A GSA Schedule solicitation restricted to a particular brand item was improper because the procuring agency failed to properly justify the restriction, according to a recent GAO bid protest decision.

The GAO’s decision is an important reminder that “brand name only” restrictions are disfavored and that procuring agencies bear the burden of reasonably justifying such restrictions–even when they buy off the GSA Schedule.

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GAO: Agency Reasonably Required Resumes, Signed Employment Letters

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.

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