GAO Sustains Protest of “Unduly Restrictive” Solicitation Requirement

GAO typically affords agencies wide discretion to establish technical restrictions within solicitations.

In a recent decision, however, GAO confirmed that such discretion is not unbounded. When an agency’s technical restriction is unduly restrictive of competition, the GAO will sustain a bid protest.

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Government References Didn’t Complete PPQs? “Too Bad,” Says GAO

Federal contractors frequently find themselves in the position of needing to establish their past performance credentials to secure future contracts – the government’s form of a reference check. The government often performs these reference checks by requesting completed past performance questionnaires, or PPQs, which the government uses as an indicator of the offeror’s ability to perform a future contract.

But what happens when a contractor’s government point of contact fails to return a completed PPQ? As a recent GAO decision demonstrates, if the solicitation requires offerors to return completed PPQs, the agency need not independently reach out to government officials who fail to complete those PPQs.

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Insufficient Experience Information Sinks Offeror’s Proposal

An offeror’s failure to provide the type of past performance information mandated by a solicitation led to the offeror’s elimination from consideration for a  major GSA contract.

A recent GAO bid protest decision highlights the importance of fully reading and adhering to a solicitation’s requirements–including those involving the type of past performance or experience information required.

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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: Proposal Deadline Need Not Be Extended If Solicitation Amended

The GAO has held that the deadline for offerors to submit proposals need not be extended when an agency issues an amendment to the solicitation, unless the failure to extend adversely affects competition or was a deliberate attempt to exclude an offeror.

In a recent GAO bid protest decision, the GAO rejected the protester’s contention that the agency should have extended the proposal deadline to allow offerors more time to respond to two amendments–which were issued three days and one day, respectively, before the proposal due date.

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Contractor Improperly Downgraded for Lack of Agency-Specific Experience, Says GAO

A contractor bidding on a U.S. Department of State contract was improperly downgraded for failing to possess direct experience working with DOS, according to a recent GAO bid protest decision.

The GAO’s decision in Exelis Systems Corporation B-407111; B-407111.2; B-407111.3; B-407111.4 (Nov. 13, 2012) is notable because it is not unusual for procuring agencies to consider agency-specific experience as part of a past performance and/or experience evaluation.  According to Exelis Systems Corporation, such considerations may be deemed improper, unless they are spelled out in (or can be reasonably inferred from) the solicitation.

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GAO: Required Proposal Information Cannot Be Provided Post-Award

“We’ll tell you how we’ll manage the contract–after you award it to us.”

That, in essence, appeared to be the position taken by one contractor recently in response to a Department of Defense solicitation.  The contractor in question failed to provide an operations and management plan required by the solicitation, pledging to provide it after award.  Not surprisingly, the agency assigned the contractor an “unacceptable” score.  And equally unsurprising, the GAO denied the contractor’s bid protest.

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