Category Archives: GAO Bid Protests

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

8(a) Company Misses Key Personnel Requirements–But Wins Contract Anyway

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An 8(a) company failed to satisfy a solicitation’s experience and key personnel requirements, but the 8(a) company walked away with a $23.9 million contract anyway–thanks to the SBA.

The GAO’s bid protest decision in Coastal Environmental Group, Inc., B-407563, B-407563.3, B-407563.4 (Jan. 14, 2013) demonstrates the power of the SBA under its certificate of competency program to second-guess procuring agencies’ determinations with respect to corporate experience, the resumes of key personnel, and other responsibility matters.

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GAO Task Order Jurisdiction: “Scope” Exception Is Narrow

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As I have previously written, the GAO lacks authority to hear bid protests of task orders valued at less than $10 million, except if the protester can show that the order increases the scope, period, or maximum value of the contract against which the order was issued.

In a recent bid protest decision, the GAO held that the “scope” exception applies only if the task order changes the underlying scope of work–denying the protester’s argument that any task order that is not evaluated in accordance with the contract’s requirements necessarily goes beyond the contract’s scope.

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GAO: Ostensible Subcontractor Rule Not Part of Set-Aside Decision

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When deciding whether to set aside a solicitation for small businesses, procuring agencies need not consider whether prospective small business offerors can perform the contract without violating the SBA’s ostensible subcontractor rule.

This was the ruling of the GAO in a recent bid protest decision, in which the GAO held that a procuring agency had properly set aside a contract for small businesses without prior consideration of the ostensible subcontractor rule.  The GAO’s decision aligns with the one discussed in yesterday’s post, in which the GAO held that an a procuring agency need not consider the individual capabilities of potential small business offerors to meet all solicitation requirements before setting aside a solicitation.

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GAO: Small Businesses’ Capabilities Not Part Of Set-Aside Decision

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A procuring agency is not required to evaluate whether potential small business offerors possess the capabilities to meet all of the requirements of a solicitation before issuing the solicitation as a small business set-aside, according to a recent GAO bid protest decision.

In Swank Healthcare, B-407367 (Dec. 12, 2012), the GAO denied a large business’s bid protest, holding that the procuring agency had properly issued a small business set-aside without first considering whether the small businesses it had identified as likely offerors possessed the capabilities to meet all of the requirements of the solicitation.

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GAO: Low Price Not Evidence of Technical Unacceptability

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An awardee’s low price, by itself, is not evidence that the awardee cannot meet the solicitation’s technical requirements, according to a recent GAO bid protest decision.

In Midwest Tube Fabricators, Inc., B-407166, B-407167 (Nov. 20, 2012), the protester argued that the awardee could not meet the solicitation’s requirements at the awarded price.  The GAO dismissed the protest, holding that the protester’s allegation did not present a valid basis of protest.

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GAO: Q&A Qualified As Solicitation Amendment

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A contractor’s proposal may be rejected for failing to address a requirement contained in a question-and-answer document, so long as the Q&A contains all of the essential elements of a solicitation amendment.

This was the ruling of the GAO in a recent bid protest decision, Energy Engineering & Consulting Services, LLC, B-407352 (Dec. 21, 2012), in which an offeror’s proposal was rejected as technically unacceptable for failing to address a standard imposed in a Q&A.

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Contractor Improperly Downgraded for Lack of Agency-Specific Experience, Says GAO

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A contractor bidding on a U.S. Department of State contract was improperly downgraded for failing to possess direct experience working with DOS, according to a recent GAO bid protest decision.

The GAO’s decision in Exelis Systems Corporation,  B-407111; B-407111.2; B-407111.3; B-407111.4 (Nov. 13, 2012) is notable because it is not unusual for procuring agencies to consider agency-specific experience as part of a past performance and/or experience evaluation.  According to Exelis Systems Corporation, such considerations may be deemed improper, unless they are spelled out in (or can be reasonably inferred from) the solicitation.

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