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 readingCategory Archives: GAO Bid Protests
GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
GAO: Each JV Partner’s Experience Must Be Considered
A common path for many federal contractors to bid on and perform a federal contract is through a joint venture (“JV”). Utilizing a JV can provide some great opportunities for two (or sometimes more) businesses to share resources and boost each others’ performance on a contract. Additionally, it can be a great tool for contractors to utilize both JV partners’ experience and to jointly gain more experience. There are even widespread SBA regulations requiring agencies to “consider” both JV partners’ experience in an evaluation. However, there has still been quite a bit of back and forth regarding how agencies are supposed to evaluate a JV’s experience, and specifically what it means to “consider” each JV partners’ individual experience, particularly in situations where only one JV partner submits the experience. In May of 2023, GAO issued a decision that provided at least some clarification on how an agency should consider each JV partner’s experience, and the impact of not doing so.
Continue readingGAO Sustains Protest to GSA Strategic National Stockpile Acquisition Based on Agency’s Failure to Conduct Meaningful Discussions
GAO recently sustained a bid protest to a General Services Administration (GSA) acquisition for warehousing and deployment services at the strategic national stockpile–a literal “stockpile” of the nation’s largest supply of critical pharmaceuticals, medical equipment and supplies, and emergency supplies. GSA issued this solicitation and conducted this acquisition on behalf of the Administration for Strategic Preparedness and Response (ASPR), an operating agency of the Department of Health and Human Services (HHS). But according to GAO, in evaluating offerors under its solicitation, here, GSA failed to provide offerors with the meaningful discussions required by the FAR. So, GAO sustained the protest and recommended that GSA: reopen the procurement to conduct meaningful discussions with offerors, accept and evaluate revised proposals after doing so, and make a new award decision on that basis.
Continue readingGAO Upholds Low Agency Bar to Waive OCI
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 readingBack 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.
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