Category Archives: GAO Bid Protests

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

GAO: Bid Was Responsive Despite Missing Information Regarding Buy American Act Exception

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The Buy American Act generally requires construction contractors to use domestically-made materials, unless an exception applies. One important exception allows contractors to use foreign-produced materials when the cost of domestic material is six percent more expensive. To qualify under this exception, however, a contractor must provide certain information outlined by the FAR with its bid.

But what if a contractor doesn’t provide every piece of required information? Is its proposal automatically doomed as non-responsive? Not necessarily. A recent case shows that offerors may have some wiggle-room.

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Get Your Novation Before Filing a Bid Protest with GAO

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Only an “interested party” can bring a GAO bid protest. This generally means that a protester must be “an actual or prospective bidder or offeror” with a “direct economic interest” in the contract’s award.

You might ask: is there such a thing as an offeror without a direct economic interest in the outcome of the contract award? It can happen–and a novation may be relevant. In a recent case, GAO held that a pending novation meant that the protester didn’t meet the standard necessary to file a protest.

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GAO Puts Substance Over Form in Past Performance Protest

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Recently, GAO sustained a bid protest where an agency “unreasonably excluded” a joint venture’s proposal, which included all necessary information listed in the solicitation, from competition.

GAO held that it was unreasonable for the agency to exclude the joint venture merely because the joint venture’s proposal didn’t include a subcontract number for one of its past performance references. GAO held, in essence, that the missing information was irrelevant because it had no bearing on the type of work completed.

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GAO: Sole-Source Bridge Contracts are Acceptable after Corrective Action

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Generally, agencies are required to maximize competition for procurements. But there are exceptions to this rule, such as for simplified acquisitions. Another exception is for sole source bridge contracts awarded between the end of an incumbent contract and the start of a new contract.

A recent GAO case explains the rationale for why a sole-source award is usually acceptable in that situation.

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A Pre-Award Protest Probably Isn’t the Place to Raise Suspicions of Wage Violations

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Let’s suppose you’re a contractor that provides services to the federal government. Typically, your contract will require you to pay your employees the prevailing wage rates promulgated under the Service Contract Act.

What if you suspect that, under previous contracts, your competitors failed to pay their employees the mandated prevailing rates? Can you use a pre-award bid protest to obligate a procuring agency to police possible ongoing non-compliance through solicitation provisions? If you say yes, perhaps you should keep reading.

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Where Non-Price Ratings Identical, Agency Wasn’t Required to Choose Lower-Priced Offeror

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In a best value competition, when two offerors receive identical adjectival scores on the non-price factors, one might assume that the procuring agency would be required to award the contract to the lower-priced offeror.

Not so.  In a recent bid protest decision, the GAO held that where two offerors received identical scores on three non-price factors, the agency could still elect to award the contract to the higher-priced offeror.

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Don’t Overlook the Seemingly Perfunctory in Your Proposal: CAGE Codes

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As our readers well know, a good proposal for a federal government procurement is an exercise in persuasive writing. You muster your creative powers to convince the source selection authority that you offer the best product or service, that your price is competitive, and that your past performance is stellar. So you invest heavily in your proposal writers; you review your proposal repeatedly to polish and ensure that it compels; you agonize.

But while the artistic portion of your proposal is, without dispute, extraordinarily important, don’t neglect the seemingly mundane–like CAGE codes. Get that wrong, and GAO just might sustain your competitor’s protest.

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