Category Archives: GAO Bid Protests

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

GAO: Rule Of Two Analysis Not Required For Exercise Of “In Scope” Options

Posted on by

The Small Business Act envisions that small businesses will be awarded a “fair proportion” of government contracts. To meet this goal, the FAR instructs agencies to set aside for small businesses acquisitions over $150,000 if there is a reasonable expectation that offers will be received from at least two responsible small businesses, at fair market prices.

While the Rule of Two is powerful, it does not extend to all procurement actions. A recent GAO case illustrates an important exception to the Rule of Two. In Walker Development & Trading Group—Reconsideration, B-411246.2 (Sept. 14, 2015), the GAO held that an agency need not conduct a Rule of Two analysis before exercising an option in accordance with the terms of an existing contract.

Continue reading →

Small Business Set-Aside Decisions May Include Restrictive “Capability” Requirements

Posted on by

The small business set-aside “rule of two” is not satisfied unless the procuring agency has a reasonable expectation of receiving proposals from at least two small businesses capable of performing the work.

Although this sounds like a commonsense interpretation of the rule of two, it may give agencies leeway to define “capability” in manner that eliminates small businesses from participation.  In a recent bid protest decision, the GAO held that an agency appropriately issued a solicitation as unrestricted based on the agency’s determination that there were not two or more small businesses with at least five years of relevant experience. Of concern, the GAO did not require the agency to prove that five years of relevant experience was necessary to render a firm “capable” of performing the contract.

Continue reading →

GAO: If Price Realism Will Be Evaluated, Offerors Must Be Notified

Posted on by

Agencies must notify offerors when price realism will be evaluated under a fixed price solicitation.

Recently, the GAO sustained a protest where a procuring agency rejected an offeror’s proposal because the offeror’s quoted prices were significantly lower than the government’s estimate–even though the solicitation did not notify offerors that price realism would be evaluated.

Continue reading →

Agency’s “Cut-And-Paste” Proposal Evaluation Upheld

Posted on by

An agency’s evaluation of proposals was not improper even though the Source Selection Authority “cut and paste” portions of a selection document used in a similar procurement–including typographical errors and a reference to a firm that had not submitted a proposal.

The GAO’s recent decision highlights an uncomfortable truth of government contracting: while the government can (and often does) demand nearly perfect proposals, the government may be able to get by with sloppy or lazy evaluations.

Continue reading →

VA Doesn’t Issue SDVOSB Set-Aside, Protest Sustained

Posted on by

The VA’s decision not to issue a SDVOSB set-aside was improper because the VA adopted an unreasonably narrow approach to determining whether two or more SDVOSBs were likely to submit proposals.

In a recent bid protest decision, the GAO held that the VA’s narrow market research did not support its set-aside determination.  And in so holding, the GAO reaffirmed its position that the VA must put “veterans first” in federal procurements.

Continue reading →

Agency Pulls A Fast One At GAO–And Gets Caught

Posted on by

After a protest was filed at the GAO, a procuring agency delayed implementing the mandatory statutory suspension of work, then amended the awardee’s contract to permit the awardee to fully perform before the suspension actually kicked in.

Then the agency got caught.

In a recent decision, the GAO sustained a protest because the agency had circumvented the GAO’s bid protest process.  But while the agency got busted–a good thing–the penalty it will pay is less than satisfactory.

Continue reading →

No GAO Jurisdiction Where Government Receives “De Minimis” Value

Posted on by

GAO lacks jurisdiction to decide a protest relating to a solicitation under which the government will receive de minimis value.

De minimis is a fancy Latin term meaning, essentially, “not much.” In one recent bid protest decision, GAO held that it lacked jurisdiction to consider a protester’s challenge to the terms of a solicitation because the solicitation called for the contractor to purchase scrap metal from the government, not the other way around.

Continue reading →