Agency Could Not Accept Price Above Awardee’s FSS Price, GAO Says

If you feel like prices for just about everything are going up, you’re not alone. I recently got my annual property tax bill, and the first thing I did (after recovering from a brief fainting spell) was to start Googling to find out how much I could get for one of my kidneys on the black market.

I get the feeling that my county tax assessor would consider anything less than a double digit increase to be an embarrassing professional failure. In federal government contracting, however, a contractor may not have the same leeway to raise its prices. In a recent bid protest decision, the GAO held that when an agency sought to procure services using the Federal Supply Schedule, the agency could not agree to pay a price higher than the price set forth in the offeror’s underlying FSS contract.

Continue reading

GAO: Brand Name or Equal RFQ Must Explicitly State All Salient Characteristics

Solicitations for brand name or equal products are commonly used by contracting officers to ensure that the products procured via the contract meet minimum requirements. However, as one agency found, the salient characteristics required to meet the minimum requirements must be explicitly stated in the solicitation. And, evaluating the product on any characteristics that are not included in the solicitation, even if incorporated by reference to the name brand item, can lead to an improper exclusion of offerors from competition.

Continue reading

Two Bites of the Same Apple: Protester Wins Sustain on Second Name Brand or Equal Protest with an Unexpected Result

When submitting an offer, it is important to make sure that all the requirements of the solicitation are met. This is essentially Federal Government Contracting 101 and applies to any type of solicitation. In RELX, Inc., B-421597.2, 2023 CPD ¶ 262 (Comp. Gen. Nov. 17, 2023), GAO looked at this issue in the context of a lowest-price, technically acceptable (LPTA) solicitation for a brand name or better product, with an unexpected ending that the protester surely did not see coming.

Continue reading

GAO: Small Task Order Protesters Can Protest Scope of Task Order

Congress has made it pretty tough to file a protest against a task order. For one thing, task order protests can generally only occur at the Government Accountability Office (GAO). For another, if a task order dollar value is too small, it can’t be protested at all. A recent case confirms that the exceptions to the restrictions on task order protests are quite narrow. However, a protest can allege that a task order increases the scope, period, or maximum value of the contract under which it is issued. Here, the protester did that. GAO had jurisdiction, but still denied the protest. 

Continue reading

GAO: Debriefings Only Delay Filing Deadlines For GAO Protest

While losing a procurement is never easy, many contractors will learn some valuable lessons from a debriefing. On top of that, a debriefing can delay bid protest filing deadlines at GAO. However, recently, GAO clarified that the bid protest filing deadline delay for debriefings only applies to GAO protests. A protestor found this out the hard way after a pre-award debrief, and multiple protest actions.

Continue reading

2023 Bid Protest Report, Success Rate Up, Total Protests Up a Little Bit

One of our favorite fall traditions is back. No, not gorging on stuffing after a turkey trot. Rather, it’s time for GAO’s annual bid protest report. This report is GAO’s summary of bid protests for the previous fiscal year. It contains some key insights for how the protest numbers have changed from prior years.

Here are some key points from this year: (1) the key effectiveness metric, showing numbers of sustains and corrective actions at GAO, was up even higher to 57% for the 2023 fiscal year and (2) total bid protest numbers are up slightly, reversing a downward trend in total protest numbers from the last few years.

Continue reading

COFC: Lapsed SAM Registration During Proposal Evaluations Makes Offeror Ineligible for Award

It’s a tale as old as time, and I’m not talking about “Beauty and the Beast.” I’m talking about an offeror who failed to comply with the registration requirements in FAR 52.204-7. What’s FAR 52.204-7? It’s the FAR provision that requires, among other things, all offerors to be registered in the System for Award Management, or SAM as it is better known. And, as we have seen many times before, there is no way around this rule. Often, failure to be registered in SAM limits an offeror’s eligibility before award is made, making the offeror ineligible for award. However, this time, it affected the award that had already been made, resulting in the court entering a preliminary injunction against the government continuing with its original award.

Continue reading