Category Archives: GAO Bid Protests

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

GAO Sustains Protest to Solicitation’s Implementation of Randolph-Sheppard Act

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GAO recently sustained a protest to the terms of a solicitation incorporating the Randolph-Sheppard Act (RSA). The RSA is a statutorily-prescribed preference for blind individuals in the operation of vending facilities (which include cafeterias, snack bars, and automatic vending machines) on Federal property.

The protester here, the incumbent contractor and a non-RSA HUBZone concern, challenged the agency’s decision to include the RSA preference in its HUBZone set-aside solicitation for food service attendant services, arguing the work the solicitation contemplated was not for the operation of a cafeteria. And GAO agreed. This GAO decision could have a significant impact, given the broad range of food service solicitations that agencies have been (seemingly increasingly) applying the RSA to lately. Let’s take a deeper dive.

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Transformers: Offerors in Disguise – GAO Sustains Protest Regarding Evaluation Based on Separate Offers from the same Offeror

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Without wanting to make the audience feel too old, I was not yet born when Transformers was a pop culture phenomenon. Still, it’s a simple but fun concept: robots that transform to and from cool vehicles. Regardless of what form they take, they are still the same character.

The same cannot be said of government contractors submitting an initial bid for the first phase of a solicitation as a prime contractor and a bid as a member of a contractor teaming agreement (CTA) for the second phase of said solicitation. While the same company is involved, the bids are treated as being from different entities. Such was the case in the GAO matter of Softrams, LLC, B-419927.4 (Feb. 7, 2022).

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Can’t Pad Key Personnel Résumé, Says GAO

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GAO recently sustained a protest to the evaluation of an awardee’s management approach based on a material misrepresentation in its proposed key personnel experience (that the protester found on Linkedin, no less). And GAO found the misrepresentation was material because the agency relied upon it, and it significantly impacted the agency’s evaluation. Let’s take a closer look.

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GAO Sustains Protest Where Agency Fails to Properly Justify “Brand Name Only” Requirement

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When an agency restricts a solicitation to a single brand-name, the agency must appropriately justify its decision, even where the solicitation is competed among holders of a governmentwide acquisition contract.

In a recent case, the GAO sustained a protest, holding that an agency violated the FAR by failing to properly justify its brand-name restriction.

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Loose Lips Sink Ships: Award Revoked for Relying on Inside Information from Former Navy Officials

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We want to make something clear: simply having a former government official as an employee does not mean your company can’t bid on federal contracts or needs to let that person go. The government, while it puts certain restrictions in place, doesn’t forbid government contractors from hiring former government employees, and it can be very beneficial to have employees with such experience and still perfectly ethical. What it does forbid is when the company is or even just appears to be getting some sort of unfair advantage in acquiring contracts as a result of having former government workers as employees. For example, what if the contractor hires someone who was with the procuring agency and had access to information on competitors for an upcoming solicitation? This is the sort of thing that will result in awards being lost, as one company learned.

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GAO Confirms that Novations Work: Agency Properly Recognized Buyer of Contract as Awardee

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The Anti-Assignment Act (41 U.S.C. § 6305) prohibits the transfer of a government contract or interest in a government contract to a third party. However, government agencies recognized that contractors are on occasion bought, sold, merged, or simply encounter circumstances upon which it becomes desirable or necessary for them to assign a government contract to a third party.  

To address this issue, the Federal Acquisition Regulation (FAR) provides for a novation process to give contractors a method to transfer government contracts and not run afoul of the prohibitions in the Anti-Assignment Act. The ultimate goal of the novation process is to successfully transfer the contract and have the government recognize a new contractor as the successor-in-interest to the transferred contract.

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Agency Properly Rejected Bidder for Listing COVID-19 as a “Force Majeure” Event

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For government contractors, trying to predict how COVID-19 might affect a government project can be extraordinarily challenging task. One bidder recently attempted to provide some clarity by stating, in its bid, that COVID-19 was a “force majeure event” and that the bidder would be entitled to extra time if COVID-19 affected the project.

Unfortunately for the bidder, its effort failed: the agency rejected the bid for improperly exceeding the scope of a relevant FAR clause. The GAO then confirmed that the agency had acted properly.

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