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.
Continue readingCategory Archives: GAO Bid Protests
GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
GAO Sustains Protest, Reminds Government It Must Show Its Work
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.
Continue readingLimitations on Subcontracting: Compliance Presumed Unless Proposal Clearly Shows Otherwise
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.
Continue readingSolicitation Ambiguities: Speak Now, or Forever Hold Your Peace
When a federal solicitation is vague, ambiguous or internally contradictory, it is common for offerors to hold their tongues. Instead of challenging the solicitation’s defects before proposals are due, many offerors decide to submit proposals and “see how it plays out.” Later, if the award goes to a competitor, these offerors may try to protest the solicitation’s defects.
It’s unsurprising that offerors can be reticent to rock the boat before an award is made. But a recent GAO bid protest decision demonstrates, complaining about the ground rules after award rarely works.
Continue readingProposal Points of Contact: Don’t Rely on Automatic Email Response, GAO Decision Warns
Agencies commonly ask offerors to designate a point of contact for communications about the proposal. But what happens if the person the offeror identifies is unavailable when the agency reaches out?
A recent GAO bid protest decision is a cautionary tale and suggests some best practices for offerors.
Continue readingGAO Annual Bid Protest Report Shows 51% Effectiveness Rate
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.
Continue readingExceeding Solicitation’s Page Limit Renders Offer Technically Unacceptable, Even if It’s the Cover Page
In a recent decision, the GAO laid down a stark reminder of its unwavering demand that offers be meticulously compliant with the instructions of a solicitation. In the decision, GAO denied a protest challenging the agency’s evaluation of a proposal as technically unacceptable where certain required proposal information was in pages that exceeded the solicitation’s page limits. The agency’s decision to ignore that information was reasonable and consistent with the solicitation’s terms.
Continue reading