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).
As anyone in the federal contracting line of work knows, deadlines come at you fast and hard. In a recent GAO decision, GAO refused to relax the timeliness rules associated with protests of solicitation requirements, even where that left the contractor with very little time to protest.
Recently, GAO sustained a bid protest where the ratings assigned to the unsuccessful offeror’s proposal did not conform to the definitions identified within the Solicitation.
For those of you frequent the blog, you may recall earlier this year when we blogged on GAO’s decision in Immersion Consulting, LLC, B-415155 et al. (Dec. 4, 2017) where the Source Selection Authority had unilaterally revised the Source Selection Evaluation Board’s evaluation prior to making an award decision. GAO sustained the protest and instructed the agency to reevaluate proposals. This same procurement was subject to another round of protests following the agency’s reevaluation.
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.
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.
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.
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.