pandemic threatens to stretch Americans’ medical resources incredibly thin.
From disposable face masks to respirators, there is real concern that current
supplies will be insufficient to treat the anticipated influx of COVID-19
patients. To address this problem, many have pointed to the Defense Production
Act as a way to increase production of this essential equipment. This is
largely because the Defense Production Act substantially modifies some of the
core government contracting principals articulated in the FAR.
From a legal standpoint the Defense Production Act provides some extraordinary powers to the President to increase domestic production in time of crisis, powers that drastically differ from the procedures of the FAR. Importantly, these changes would only impact procurements conducted directly under Defense Production Act authority. For those businesses subject to its provisions, though, the differences could be quite stark.
To address the unique challenges facing federal contractors during the COVID-19 pandemic, SmallGovCon is launching the COVID-19 Contractors’ Toolkit. The goal is to provide relevant and useful information for government contractors about contract requirements, best practices, and advocacy options. While every business will have its own unique challenges, it’s our hope to offer general information to guide decision making for federal contractors in these unprecedented times.
A few months ago, we blogged on a sustained GAO decision that concluded the Marines had failed to evaluate offerors in accordance with the Solicitation. Specifically, GAO identified issues with the evaluations of offeror samples, and recommended that the Marines reevaluate offerors. In the wake of GAO’s decision, the Marines filed a request for reconsideration. Unfortunately, the Marines request did not comply precisely with GAO’s filing procedures, resulting in a dismissal.
After relatively steady protest numbers year over year, GAO’s 2019 annual report saw a significant drop in bid protest filings. Could enhanced debriefings be driving this trend? Watch below as I explore the possible link:
For more information, check out the related post here.
While GAO’s bid protest process is designed to achieve the laudable goal of providing a less costly process for procurement disputes, pursuing a GAO protest is nevertheless expensive. To offset these expenses, successful GAO protesters may be reimbursed for some of their expenses incurred pursuing a protest. But what constitutes a successful protest that would entitle a protester to costs? In a recent request, GAO concluded that successfully defending against a motion to dismiss was not enough to entitle a party to costs, despite the fact that the agency subsequently took corrective action.
As we’ve previously discussed at SmallGovCon, a substantial number of GAO bid protests are resolved through voluntary corrective action. While corrective action is typically a desirable outcome for a bid protest, it by no means affords a protester the opportunity to relax. Indeed, as one offeror recently discovered, the failure to diligently protest the scope of a corrective action barred raising certain challenges later on.
Negotiating with the federal government regarding pricing can sometimes feel like trying to win an RV from Bob Barker. Such was the experience of one protester. The government recommended a price increase during discussions and the contractor raised its price. The price increase, however, ultimately cost the offeror the award. The agency’s conduct was subsequently protested before GAO, but GAO was not receptive.