GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
“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.
I am pleased to announce that I have joined with Guy Timberlake of the American Small Business Coalition and Larry Allen of Allen Federal Business Partners to produce a new Internet-based radio show called Position To Win: Policies, Protests and the Pursuit of Opportunities.
Every two weeks, Guy, Larry and I will offer our take on policy, legislative, and legal matters affecting small government contractors. In today’s segment, Guy discussed small business set-aside contracting dollars, Larry weighed in on the potential small business impacts of the pre-award protests of the GSA OASIS vehicle, and I talked about the recent bill to move SDVOSB verification from the VA to the SBA.
Guy and Larry are two of the most knowledgeable voices in the industry, and I’m happy to join them on Position To Win. I hope you’ll tune in.
GAO bid protests regarding a competitor’s compliance with the applicable limitation on subcontracting can be difficult to win.
As the GAO held in a recent bid protest decision, unless the competitor’s proposal “on its face” should have led the procuring agency to recognize that the limitation on subcontracting would be violated, the agency is free to assume that the offeror intends to comply. Of course, as was the case in the recent decision, it doesn’t hurt the protested company to specifically state that it will comply with the limitation on subcontracting.
A GSA Schedule solicitation restricted to a particular brand item was improper because the procuring agency failed to properly justify the restriction, according to a recent GAO bid protest decision.
The GAO’s decision is an important reminder that “brand name only” restrictions are disfavored and that procuring agencies bear the burden of reasonably justifying such restrictions–even when they buy off the GSA Schedule.
A bidder on a government contract opportunity may rely on the past performance of an affiliated company–but only when the bidder’s proposal demonstrates that the resources of the affiliate will be provided or relied upon for contract performance.
This rule was recently at issue in a GAO bid protest decision, in which the GAO held that the agency improperly credited a joint venture with the past performance of affiliated companies, even though the joint venture’s proposal did not indicate that those companies would play a role in contract performance.
Recently, I brought you the story of a contractor protesting its own award.
Now, in the same “strange but true” category comes a GAO bid protest decision in which a small business argued that the procuring agency should not have set aside the procurement for small businesses.
SBA 8(a) participants need not obtain the SBA’s prior approval of prime/subcontractor teaming agreements, according to an SBA statement made in a GAO bid protest case.
The SBA’s position makes sense, because the SBA’s regulations only call for prior approval of joint venture agreements. However, one former 8(a) company might be hopping mad over the SBA’s stated position, because that company was terminated from the 8(a) program for–you guessed it–failing to obtain the SBA’s prior approval of a teaming agreement.