Representations and certifications are an integral part of the requirements for any solicitation. While each solicitation may require different representations and certifications, what precisely is required for a given representation or certification is generally governed by the FAR. One of the more common requirements is that an offeror provide information to the Federal Awardee Performance and Integrity Information System (FAPIIS) regarding its current federal awards and recent judgments against it concerning federal procurements that result in payment by the offeror, and this is governed by FAR 52.209-7. Recently, GAO addressed the question of just what recent judgments must be disclosed under that FAR rule. In this post, we will explore their decision.
Continue readingCategory Archives: GAO Bid Protests
GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
GAO Sustains Protest for Converting Best-Value Evaluation into LPTA
In a recent decision, GAO sustained a protest arguing that the agency had actually converted a best-value tradeoff procurement into a lowest-priced, technically acceptable competition. GAO held that the agency had not properly followed the evaluation criteria.
Continue readingShould We Discuss This? Agencies Required to Enter into Discussions with All Offerors in Competitive Range
If you google “GAO discussions,” you will likely see a multitude of results talking about “meaningful discussions.” Source selection authorities (SSA) are given a large amount of discretion beyond that. Despite the high level of discretion SSAs have, there are still certain boundaries that they must work within. These boundaries are premised on the fairness principle that is woven throughout the FAR and other procurement rules. In particular, the process of discussions must fit within these boundaries. Discussions allow all offerors that are still being considered for award an equal opportunity to address deficiencies, weaknesses, and adverse past performance information. But what if the contracting agency engages in discussions with only one offeror, who also happens to be the awardee?
Continue readingGAO Sustains Protest to Solicitation’s Implementation of Randolph-Sheppard Act
GAO recently sustained a protest to the terms of a solicitation incorporating the Randolph-Sheppard Act (RSA). The RSA is a statutorily-prescribed preference for blind individuals in the operation of vending facilities (which include cafeterias, snack bars, and automatic vending machines) on Federal property.
The protester here, the incumbent contractor and a non-RSA HUBZone concern, challenged the agency’s decision to include the RSA preference in its HUBZone set-aside solicitation for food service attendant services, arguing the work the solicitation contemplated was not for the operation of a cafeteria. And GAO agreed. This GAO decision could have a significant impact, given the broad range of food service solicitations that agencies have been (seemingly increasingly) applying the RSA to lately. Let’s take a deeper dive.
Continue readingTransformers: Offerors in Disguise – GAO Sustains Protest Regarding Evaluation Based on Separate Offers from the same Offeror
Without wanting to make the audience feel too old, I was not yet born when Transformers was a pop culture phenomenon. Still, it’s a simple but fun concept: robots that transform to and from cool vehicles. Regardless of what form they take, they are still the same character.
The same cannot be said of government contractors submitting an initial bid for the first phase of a solicitation as a prime contractor and a bid as a member of a contractor teaming agreement (CTA) for the second phase of said solicitation. While the same company is involved, the bids are treated as being from different entities. Such was the case in the GAO matter of Softrams, LLC, B-419927.4 (Feb. 7, 2022).
Continue readingCan’t Pad Key Personnel Résumé, Says GAO
GAO recently sustained a protest to the evaluation of an awardee’s management approach based on a material misrepresentation in its proposed key personnel experience (that the protester found on Linkedin, no less). And GAO found the misrepresentation was material because the agency relied upon it, and it significantly impacted the agency’s evaluation. Let’s take a closer look.
Continue readingGAO Sustains Protest Where Agency Fails to Properly Justify “Brand Name Only” Requirement
When an agency restricts a solicitation to a single brand-name, the agency must appropriately justify its decision, even where the solicitation is competed among holders of a governmentwide acquisition contract.
In a recent case, the GAO sustained a protest, holding that an agency violated the FAR by failing to properly justify its brand-name restriction.
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