The FAR requires offerors, in most situations, to disclose any actual or potential organizational conflicts of interest (OCI) that exist when submitting an offer or proposal in response to a solicitation. While it is rare that an offeror will be excluded from competition solely due to the existence or potential of an OCI, offerors who do not disclose as required will most likely be excluded, making this a situation where you generally want to disclose the existence of an OCI up front, not explain after the agency’s discovery through other means. Offerors may choose to avoid, mitigate, or neutralize an OCI by putting up a organizational barrier between the individual creating the OCI and the perceived or actual conflict. However, in some situations, avoiding, mitigating, or neutralizing the OCI may not be in the agency’s best interest. In that case, and as happened in Accenture Federal Services, LLC, agencies are given the option to waive the requirements of FAR subpart 9.5, thereby making award regardless of the existence or potential of an OCI.
Continue readingCategory Archives: GAO Bid Protests
GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
Back to Basics: GAO’s Protest Timeliness Rules
Here in Kansas, it is certainly starting to feel like thunderstorm season–and one of my favorite seasons, I might add. But over in D.C., some may say it is starting to feel like protest season! That said, anyone familiar with the protest process at D.C.’s Government Accountability Office (GAO) is probably also quite familiar with the strict timeliness rules GAO applies to such protests. And frankly, even for the seasoned GAO protesters, a refresher on the timeliness rules can be quite beneficial–especially given the answer to when a certain type of protest is due is not always an easy calculation. So, let’s take it back to the basics and run through some of those rules here.
Continue readingGAO: Agency Can’t Combine Evaluation Factors After the Fact
Typically, agencies will provide a handful of evaluation factors, sometime more, in a solicitation. Common evaluation factors are technical, past performance, and cost. A recent protest decision looked at a solicitation that contained separate factors for 1) offeror’s technical capability and 2) staffing and management approach. The question was, can an agency combine its evaluation for two different factors? If it does mix the two evaluation criteria, is that enough to sustain a protest?
Continue readingBuy American? Agencies Must Carefully Document Market Research for Domestic Preference Compliance, says GAO
A recent GAO case on protest costs looked at whether costs were reimbursable centered around whether a Buy American Act waiver was properly applied in the procurement process. As you likely know, the Buy American Act is something many contractors (especially supply and construction contractors) must deal with in their contracting process, and getting a waiver or an exception often may be critical to a proposal. This case arose from a protest seeking costs, but it is still a great opportunity for contractors to better understand the limits of a waiver or exception of the Buy American Act and GAO’s expectations surrounding such an action.
Continue readingNicole Pottroff Weighs in on Bias in the Procurement World in Forbes Article
Tuesday, March 29, Forbes.com published a fascinating article written by Dr. Gleb Tsipursky entitled, Prevent Costly Procurement Disasters: 6 Science-Backed Techniques For Bias-Free Decision Making. In the article, I weigh in on the subject of bias in the bid selection process for federal procurements. I discuss some of the ways the ever-developing science behind implicit bias could potentially be utilized in bid protests challenging source selection decisions as biased–which is currently one of the toughest protest challenges to win.
As you can read more about in the article, government officials are presumed to act in good faith and the standards for proving otherwise are difficult to meet (essentially, you need a “smoking gun” to win a protest on bias alone). This article thoroughly discusses the current protest landscape for challenging bias, the ways procurement officials can work to mitigate or eliminate bias in the procurement process, and the potential interplay of the science behind bias in both the procurement and protest processes.
GAO Sustains Protest Based on Faulty Past Performance Evaluation
Past performance is a key part of most government proposal evaluations. Generally, a federal agency gets a lot of discretion in evaluating past performance. But that discretion is not without limits. In a recent decision, GAO sustained a protest where the agency failed to properly evaluate past performance examples for being similar in size.
Continue readingBack to Basics: Debriefings
Debriefings are a crucial part of the complicated world of bidding on Government contracts. They can provide wonderful insight to contractors on where they can improve, where their proposals were strong, and in cases, may provide information that could indicate to a contractor that a bid protest may be warranted. Therefore, it is vitally important for contractors to understand what Debriefings are, what they can and can’t provide you, and why they matter. Previously, we here at SmallGovCon discussed 5 things you should know about Debriefings, but in this post we will do a more detailed dive into Debriefings based on the current regulations and contracting landscape.
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