Category Archives: GAO Bid Protests

GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.

GAO: No SBA Certificate of Competency Review Needed for Failure to Adequately Explain Technical Approach

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For small businesses, the SBA’s Certificate of Competency process can offer a powerful “second bite at the apple,” essentially allowing a small business to appeal to the SBA if a procuring agency finds the small business non-responsible.

But the SBA CoC process is limited to findings of non-responsibility under FAR Part 9. As GAO recently held, there is no right to appeal to SBA if the proposal was rejected for failing to adequately explain the small business’s technical approach.

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GAO Finds Agency’s Technical Evaluation Inadequate, but Refuses to Invalidate Award

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Leasing office space in a flood plain seems like a bad idea. Most people want an office with a view, but not a view of their office desk floating down a first-floor hallway. In a recent protest decision, GAO said that the agency failed to adequately document its evaluation, despite its own solicitation requirements.

But even when your protest is sustained, GAO may still recommend the award remain in place. How can that be? Follow along, while I lead you through what you need to know.  

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GAO Concludes Expired SAM Registration in Invitation for Bid Cannot be Rejected as Nonresponsive

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A company that is nonresponsive to an Invitation for Bid (IFB), or any solicitation for that matter, will usually be rejected for consideration for award. All too often, when a nonresponsive finding is made, there is no coming back.

A recent decision from GAO shines light on what it means to be “nonresponsive” and “not responsible.” GAO confirmed that SAM registration submitting annual certifications are matters of responsibility, not responsiveness.

What is the difference? Let’s look at the two terms and their practical effect on a company’s ability to cure deficiencies.

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Agency Reasonably Accepted Awardee’s 91% Price Premium, GAO Says

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When it comes to “best value” evaluations, agencies ordinarily have broad discretion to accept higher-rated, higher-priced proposals.

How broad is that discretion? Well, in one recent case, the GAO held that an agency reasonably accepted the awardee’s higher-rated proposal, despite a whopping 91% price premium.

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GAO: Small Business Rule of Two Doesn’t Require Set-Aside for Task Order

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Generally, the small business Rule of Two requires an agency to set aside contracts for small business, assuming that there are at least two small businesses with competitive prices who will bid on the contract. But does the small business Rule of Two apply to orders under a multiple award contract? In a recent decision, GAO affirmed the answer is no–application of the small business Rule of Two for orders under a multiple-award contract is discretionary.

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GAO Sustains Protest, Reminds Government It Must Show Its Work

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If a teacher has told you once, they’ve told you a thousand times, show your work.  That was GAO’s reminder to GSA in its decision in Hoover Properties, B-418844 (Sept. 28, 2020).  In the case, GAO sustained a protest from property management company Hoover Properties, the non-awardee of a GSA request for lease proposal (RLP), in which Hoover argued that GSA failed to provide adequate documentation for its evaluation.

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Limitations on Subcontracting: Compliance Presumed Unless Proposal Clearly Shows Otherwise

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America’s criminal justice system is founded on the principle that a defendant is innocent until proven guilty. And when it comes to compliance with the limitations on subcontracting, a similar principle applies.

In a recent bid protest decision, the GAO confirmed that a small business’s proposal does not need to affirmatively demonstrate compliance with the “LoS.” Instead, compliance is presumed, unless the proposal “on its face” should lead the procuring agency to conclude that the small business will not comply.

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