Author Archives: SmallGovCon Contributor

Reverse Auctions: Proposed Rule Poised to Strengthen Regulatory Framework

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The DoD, NASA, and GSA have proposed new rules aimed at providing transparency for reverse auctions after GAO reports in 2013 and 2018 signaled the need for guidance on reverse auctions to achieve cost savings and reduce fees.  

As context, the FAR was amended in 1997 to allow for the use of reverse auctions. Six agencies conducted approximately 15,000 reverse auctions in 2016 alone. Reverse auctions, despite their wide use, are not without controversy. Application of fees, and inability to verify actual cost savings plague the use of reverse auctions.

Private companies have developed software and services which companies use to, hopefully, increase their chances in reverse auctions.

As a result, a new proposed rule is open for comments here.

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OHA and the Ostensible Subcontractor Rule: A Two-Prong Test You Can’t Fix After the Fact

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In a recent decision, OHA ruled that the ostensible subcontractor rule requires a two-prong evaluation before SBA can find affiliation. The SBA Area Office took a look at only one prong, which resulted in a remand from OHA. Ultimately, OHA found affiliation, reversed the SBA Area Office and found the concern ineligible. As OHA made clear, entities can’t fix deficiencies after the fact.

Think of the ostensible subcontractor rule like the preferred go-to move (other than line dancing) at a Country/Western Dance Hall, it is the ostensible subcontractor two-step. Follow along as I lead you through the dance you need to get right to avoid stepping on the toes of your proposal.

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GAO Annual Bid Protest Report Shows 51% Effectiveness Rate

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In 2020, the GAO Bid Protest effectiveness rate crossed the 50% threshold, higher than we’ve seen it in any recent year.  Overall, cases filed went down a mere 2% year over year.

GAO issues its yearly report as a requirement under statute. Congress is particularly concerned with knowing 1) which federal agencies didn’t follow GAO’s recommendations in bid protests and 2) if GAO did not issue a decision in 100 days. As like most years, GAO was “pleased” to report that all agencies followed its recommendations, when given, and that it timely (within 100 days) decided all bid protests.

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New DoD Rule Requires Formal Certification for WOSB and EDWOSB Contracts

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The DoD has issued a new class deviation, effective immediately, which implements the SBA’s requirement that women-owned small businesses be formally certified to receive WOSB set-aside contracts.  The class deviation contains a “priority review” procedure to allow companies with pending WOSB or EDWOSB certification applications to be considered for award. 

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GAO Dismisses Challenge to Brief Explanation of Award

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Depending on the type of procurement, an agency will often provide either a brief explanation or debriefing after an award is made. But those explanations are difficult to challenge, as a recent GAO decision confirmed.

In the decision, GAO dismissed a protester’s challenge to the sufficiency of a two-paragraph explanation. Protester failed to show competitive prejudice or regulatory deficiency in the explanation. Since the protester could not demonstrate either of these conditions resulted from the explanation, GAO dismissed these allegations.

When protesting to GAO after receiving a brief explanation, what do you need to know in order to get your foot in the door? Let’s take a look.

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GAO Confirms You Cannot Challenge Another Offeror’s Inclusion in the Competitive Range

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An offeror in the competitive range cannot protest another offeror’s inclusion in the competitive range, according to GAO. In a recent decision, GAO dismissed an offeror’s protest as premature when both offerors were included in the competitive range. 

After a series of protests and corrective actions, GAO recommended to include a previously excluded offeror in the competitive range for consideration. The competing offeror protested this inclusion, and GAO dismissed the protest.  

Why would GAO dismiss this protest?  Here is what you need to know. 

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