GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
Past performance evaluations often hinge on government officials completing and returning past performance questionnaires. But what happens when the government doesn’t return those PPQs?
In one case, at least, the answer was “nothing good.” In a recent GAO bid protest decision, only two of six PPQs were returned for the lowest-priced offeror–and that offeror ended up losing the contract to a firm with a higher past performance score.
According to the GAO, a solicitation was unduly restrictive because it prohibited the consideration of the past performance of an offeror’s affiliates–even when the affiliates would contribute to performance of the contract.
The GAO’s bid protest decision in Iyabak Construction, LLC, B-409196 (Feb. 6, 2014) demonstrates that agency restrictions on the consideration of past performance must be reasonable. However, the Iyabak Construction decision should not be interpreted as standing for the principle than an agency can never exclude the past performance of an offeror’s affiliates if those affiliates will contribute to contract performance. Rather, the case suggests that it was the government’s failure to offer a good explanation–not the underlying restriction itself–that led to the “sustain” decision.
An agency does not need to reopen discussions to allow an offeror to address a weakness first introduced in a revised proposal.
In a recent bid protest decision, the GAO held that an agency properly eliminated an offeror from the competitive range where the offeror, in a revised proposal submitted after discussions, introduced a new weakness.
A contractor’s technical problems in accessing a solicitation did not entitle the contractor to an extension to submit its proposal, because the contractor delayed attempting to read the solicitation until nearly three weeks after it was issued.
In a recent bid protest decision, the GAO suggested that the contractor’s failure to try to access the solicitation was unreasonable, and held and that the agency was justified in refusing to extend the proposal due date.
The FAR’s limitations on subcontracting clause allows the prime contractor to count small business subcontractors toward the prime’s own performance requirement, according to the GAO.
In a recent bid protest decision, the GAO confirmed that the National Defense Authorization Act of 2013 permits prime contractors to meet the requirements of the limitations on subcontracting clause by including work performed by “similarly situated” subcontractors.
GAO bid protests decreased slightly in Fiscal Year 2013, down 2% from the previous year. The “effectiveness rate” for protesters–a statistic that includes both formal GAO sustain decisions and voluntary agency corrective actions–was 43%, up slightly from FY 2012.
The GAO’s FY 2013 statistics are included in its January 2 Annual Report to Congress, which also includes a few other bid protest tidbits of note.
A bid protest filing with the U.S. Government Accountability Office will be deemed to be filed on a particular day if it is filed before 5:31 p.m. Eastern Standard Time , according to a recent GAO bid protest decision.
The GAO’s decision in Government Acquisitions, Inc., B-408426, B-408426.2 (Sept. 17, 2013) clarifies that the GAO’s 5:30 p.m. deadline allows for a timely filing “until the clock reaches 5:31 p.m.” Unfortunately for my own curiosity, however, the decision does not answer the more interesting question of what on earth the protester was thinking when it filed at 35 seconds after 5:30 p.m.