Category Archives: GAO Bid Protests

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

GAO: Agency Improperly Adjusted Contractor’s Proposed Level of Effort

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In today’s tight budgetary climate, performance-based acquisitions and similar techniques to maximize efficiency seem to be on the rise.  Performance-based acquisitions can offer unique opportunities for contractors to develop innovative approaches to meet an agency’s needs while minimizing costs.

In a recent GAO bid protest decision, one offeror proposed fewer labor hours–and a different labor mix–than the awardee, resulting in a lower overall price.  Nevertheless, without explanation, the procuring agency in question unilaterally raised the offeror’s labor hours to match the hours proposed by the awardee, resulting in a corresponding increase in evaluated price.  The GAO was none too pleased with the agency’s action, sustaining the offeror’s bid protest.

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Email Attachment Problem, Spelling Mistake Doom Proposal

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Our firm experienced a strange email outage yesterday: I could receive incoming email messages through my Outlook account, but anything I tried to send bounced back.  After several bounce backs, I began emailing clients and other contacts from a gmail account (if you were on the receiving end, my apologies for the temporary lack of a professional email address, but it’s better than ignoring you, right?)

All this is to say that I can sympathize with McKesson Technologies, which experienced technical difficulties (as well as an unfortunate spelling problem) when trying to submit a proposal by email.  Although the agency awarded McKesson the contract anyway, a competitor filed a GAO bid protest, and that was the end of McKesson’s award.

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GAO Protester: Gloves Are Not “Clothing”

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File this one in the “A for effort” category.  In a GAO bid protest, a contractor recently complained that it was unfairly excluded from a competition because the gloves sought by the agency were not “clothing” covered by a domestic preference law.  Not surprisingly, the GAO’s response was, “nice try.”

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GAO to VA: Read the Whole Stinkin’ Proposal

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If you’re an eight-year-old who has recently begun the literary journey to Hogwarts School of Witchcraft & Wizardry, avert your eyes, because here comes a major spoiler: at the end of the Harry Potter series, a grown-up Harry, now married to his pal Ron’s sister, Ginny, sends his own child off to Hogwarts.  Oh, and Ron is married to Hermione, and they also have Hogwarts-bound offspring.

How do I know this culturally valuable information?  Because I read to the very end of the last Harry Potter book (yes, I’m one of those people).  Contrast this with the VA, which in a recent GAO bid protest case, refused to consider certain information presented by the protester because the information was contained in an exhibit to the proposal, not the narrative section.  The GAO’s reaction: “read the whole stinkin’ proposal, VA.”

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Joint Ventures and Past Performance: Agency May Consider Experience of JV Members

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Joint ventures seem to be an increasingly popular vehicle for pursuing federal contracts, but the FAR and agency solicitations usually are not written with joint ventures in mind.  As a result, confusion can sometimes arise over how a joint venture’s proposal should be evaluated.

Case in point: past performance.  A joint venture is often a new legal entity, so should it receive a “neutral” past performance score?  Not necessarily.  According to a recent GAO bid protest decision, it is perfectly acceptable for a procuring agency to consider the relevant experience and past performance of the individual joint venture members.

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Single Negative Past Performance Reference Sinks Contractor’s Bid

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Past performance is a key ingredient in most competitive government procurements.  Even if a contractor’s overall past performance record is excellent, a single blemish can damage the contractor’s chances of award.

In a recent GAO bid protest decision, the agency relied on a single adverse past performance reference to assign the contractor a poor past performance rating–even though the contractor strongly disagreed with the adverse reference.  The GAO held that there was nothing wrong with the agency’s past performance evaluation.

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