GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
Unbalanced pricing can justify the exclusion of a contractor’s proposal, even if the contractor alleges that the pricing represents its actual cost structure.
As demonstrated in a recent GAO bid protest decision, an agency is justified in rejecting a proposal on the basis of unbalanced pricing when the agency reasonably concludes that the unbalanced pricing poses an unacceptable risk to the government.
The GAO’s bid protest jurisdiction does not extend to complaints that a government agency has violated a company’s intellectual property rights.
According to a recent GAO bid protest decision, the GAO lacks jurisdiction over intellectual property matters, and affected companies must seek relief in the federal courts.
Small business set-asides are not required for simplified acquisitions conducted outside the United States and its outlying areas, according to a recent GAO bid protest decision.
In Latvian Connection General Trading and Construction LLC, B-408633 (Sept. 18, 2013), the GAO rejected the protester’s contention–which was backed by the SBA–that simplified acquisitions must be set-aside whenever the “rule of two” is satisfied, notwithstanding the fact that the procurement is outside the United States.
GAO bid protests sometimes involve allegations that a particular contracting officer and/or other government personnel were biased against the protester.
However, as a recent GAO bid protest decision demonstrates, without “convincing proof,” which can be very difficult to obtain, the GAO will not sustain a protest allegation of bias or bad faith on the part of government employees. In other words, without a “smoking gun,” making an allegation of bias or bad faith may simply be a waste of time.
In discussions, a procuring agency is not required to inform a prospective contractor that its costs are higher than those of its competitors, unless those costs are so high as to be unreasonable.
This important potential limitation on the scope of discussions was at issue in a recent GAO bid protest decision, in which the GAO held that an agency had not erred by failing to inform an offeror that its proposed costs were approximately $3 million higher than the awardee’s.
An agency may amend a solicitation after the deadline for receiving offers, so long as the amendment is not “so substantial as to exceed what prospective offerors reasonably could have anticipated” in submitting offers under the original solicitation.
This rule, which is codified at FAR 15.206(e), was at issue in a recent GAO bid protest decision, in which the GAO held that the amendment merely clarified the original solicitation and thus did not require cancellation.
“Everyone is entitled to his own opinion, but not his own facts,” said the late Senator Daniel Patrick Moynihan.
In a recently published bid protest decision, the GAO held that a procuring agency was not entitled to its own facts when it came to the contents of the protester’s proposal. Because the proposal contained the very items the agency claimed were missing, the GAO sustained the protest.