GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
“We’ll tell you how we’ll manage the contract–after you award it to us.”
That, in essence, appeared to be the position taken by one contractor recently in response to a Department of Defense solicitation. The contractor in question failed to provide an operations and management plan required by the solicitation, pledging to provide it after award. Not surprisingly, the agency assigned the contractor an “unacceptable” score. And equally unsurprising, the GAO denied the contractor’s bid protest.
Small government contractors sometimes rely on subcontractors to help satisfy experience, certification, past performance, and other solicitation requirements. But if one recent GAO bid protest decision is an indication of things to come, procuring agencies may begin requiring more information up front about major subcontractors–including a copy of the final subcontract agreement itself.
“I’m thinking of a number between one and ten–can you guess what it is?”
It sounds like the beginning of an amateur magic trick, or perhaps a segment on the ever-popular Colbert Report. But in a recent GAO bid protest decision, the stakes of the guessing game were a lot higher. In that case, the agency developed an internal estimate of the staffing needed to successfully complete the contract work, but did not disclose the estimate to offerors–then downgraded two offerors for failing to “guess” the same staffing numbers as the agency.
Unfortunately for the agency, the GAO refused to play along.
Some folks call it “October,” others prefer the more general “fall.” But in my family, this time of year is better known as “protest season.” So if you’re wondering where SmallGovCon has been the last few days, thank the government and its flurry of spending at the end of the fiscal year, which briefly led to a personal routine consisting almost entirely of of eating, sleeping (when my 1-year old daughter would allow it), and protesting.
While I have been busy protesting, the GAO has continued issuing bid protest decisions. Recently, it held that a large prime contractor was appropriately assigned a “significant weakness” due to the prime’s failure to propose meeting two of five small business subcontracting goals. I, for one, am happy to see another indication of a procuring agency putting teeth behind the small business subcontracting goals.
Michael Jackson famously bought the publishing rights to most of the Beatles’ songs, but purchasing the Beatles’ music didn’t mean that Jackson could claim to have appeared on the Ed Sullivan Show in 1964.
As the GAO recently held, a similar principle applies in government contracting: simply buying another company’s government contract does not necessarily entitle the new contractor to lay claim to the other company’s experience.
During the NFL’s recent replacement referee debacle, the rules of the game sometimes seemed to be in flux. San Francisco coach Jim Harbaugh, for instance, convinced the replacement refs to give him two extra challenges by playing dumb about how the challenge process works. But with the “real” referees back on the field, NFL teams now know that they once again need to play by the rules.
When it comes to proposals, contractors, too, need to play by the rules. An agency solicitation sets forth the ground rules of the competition, and varying from those stated rules can result in an unacceptable offer–as one contractor recently discovered when it attempted to amend the solicitation’s pricing table.
Politicians love vagueness. It’s easy for a candidate to promise broad generalities like lower taxes, a stronger military, better schools, or a free pony in the backyard for every American child (okay, I made that last one up). It’s a lot more difficult to provide specifics about how all those wonderful things will be achieved.
Government contractors, too, can be tempted to rely on vague declarations in proposal-writing. After all, it’s a lot easier than addressing the nuts-and-bolts of the procuring agency’s needs. But as one contractor recently discovered in a GAO bid protest decision, a vague proposal may also be an unacceptable proposal.