Category Archives: GAO Bid Protests

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

Price Realism and Fixed-Price Contracts: The Solicitation Controls

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If price realism is evaluated by a procuring agency under a solicitation for a fixed-price contract, the solicitation must inform offerors that price realism will be considered, says the GAO in a recent bid protest decision.

In Emergint Technologies, Inc., B-407006 (Oct. 18, 2012), the GAO sustained a bid protest because the procuring agency in question failed to inform offerors that price realism would be evaluated–and seemed to fundamentally misunderstand the concept of a price realism evaluation.

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GAO: VA Must Prioritize SDVOSBs for Simplified Acquisitions

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The U.S. Department of Veterans Affairs’ award of a contract to a small business under simplified acquisition procedures was improper because it appeared that a number of service-disabled veteran-owned small businesses could have filed the requirement, according to a recent GAO bid protest decision.

Unlike the ongoing Aldevra cases, in which the VA has purposefully continued making awards to non-SDVOSBs under the Federal Supply Schedule in the face of repeated GAO decisions stating that the practice is illegal, the GAO’s decision in Phoenix Environmental Design, Inc., B-407104 (Oct. 26, 2012), suggests that the VA simply did not understand how the agency’s own set-aside rules are supposed to work, at least in the context of a simplified acquisition.

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HUBZone Price Preference: GAO Confirms Application to GSA Leases

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The HUBZone price preference applies to GSA leasehold acquisitions, according to a GAO decision confirming a prior bid protest ruling.

In General Services Administration–Reconsideration, B-406040.2 (Oct. 24, 2012), the GSA asked the GAO to reconsider its decision in The Argos Group, LLC, B-406040 (Jan. 24, 2012), in which the GAO initially held that the HUBZone price evaluation preference applies to GSA lease acquisitions.  The GAO–with the SBA’s support–confirmed its prior ruling, holding that the GSA cannot evade the HUBZone price preference when it issues a competitive procurement to acquire a lease.

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Price Realism: Agency Improperly Used Unacceptable Proposals for Comparison

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Earlier this week, the International Cycling Union announced that it would strip Lance Armstrong of his seven Tour de France titles, stating that overwhelming evidence existed that Armstrong had won those titles by doping.  For cyclists who play by the rules, it is only fair that they not be forced to chase Armstrong’s Tour record, which he apparently achieved in an unacceptable way (and you can count me among those who think Roger Maris and Hank Aaron have pretty strong claims to baseball’s single-season and career home run marks, too).

When it comes to sporting records, comparing a clean athlete to a cheater seems unfair.  Similarly, in the government contracting world, using unacceptable proposals as a basis of comparison for other proposals’ price realism is improper, according to a recent GAO bid protest decision.  In Lifecycle Construction Services, LLC, B-406907 (Sept. 27, 2012), the GAO sustained the protest because of significant errors in the agency’s evaluation of the protester’s price realism–including comparing that price to the prices of three unreasonably high-priced proposals.

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WOSB Downgraded for Reliance on Teammate’s Experience

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Small government contractors often rely on teammates and subcontractors to demonstrate relevant experience.  But as one recently-published GAO bid protest decision shows, some procuring agencies may take a dim view of such reliance.

In Quasars, Inc., B-405747 (Dec. 7, 2011), the agency found that a woman-owned small business’s reliance on a teammate for relevant experience was risky, because that teammate might leave, depriving the team of the necessary expertise.  The GAO found nothing unreasonable in the agency’s evaluation.

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GAO: Required Proposal Information Cannot Be Provided Post-Award

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“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.

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Agency to Offerors: Show Us Your Subcontracts

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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.

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