Category Archives: GAO Bid Protests

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

GAO Sustains An Aldevra Protest (Again)

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The original Rocky was popular with audiences and critics alike, rating as the highest-grossing film of 1976 and picking up three Oscars, including Best Picture.  But by the time the franchise reached Rocky V in 1990, the ongoing sequels had become something of a joke.  In a Washington Post review, critic Desson Howe opened with: “Moments after that brutal bout with Dolph Lundgren in “Rocky IV” — and you did watch “Rocky IV,” didn’t you? — Sly Stallone mistakes his wife for his dead boxing coach. This is not a good sign, even for the Rockster.”

Like the Rocky series, the fight between Aldevra and the VA keeps spawning sequels.  For service-disabled veteran-owned small businesses, the good news is that Aldevra has won yet another GAO bid protest, challenging the VA’s refusal to consider a SDVOSB set-aside before procuring equipment from the GSA Schedule.  The bad news is that the sequels keep coming, with no sign that the VA will back down.

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Agency Awards HUBZone Set-Aside to Federal Prison Industries

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When is a HUBZone set-aside not really a HUBZone set-aside?  According to one GAO bid protest decision, when Federal Prison Industries (also known as UNICOR) submits an offer.

In Tennier Industries, Inc., B-403946.2 (June 29, 2012), the Defense Logistics Agency set-aside a procurement for HUBZone contractors, but awarded the contract to Federal Prison Industries rather than a HUBZone company.  One might think that the GAO would sustain a bid protest.  Instead, the GAO held that the award to FPI was A-OK.

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Price Realism: GAO Rejects “Incumbent Knows Best” Argument

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When an incumbent contractor loses a follow-on contract to a lower-priced competitor, the incumbent sometimes complains that after successfully performing the contract, it “knows what it takes” to get the job done, and that based on its experience, the competitor’s price is unrealistically low.

It is a perfectly logical argument, with one big problem: it can be very difficult to convince the GAO that an incumbent knows better than the procuring agency what constitutes a realistic fixed price for a contract.  The difficulty in succeeding with such an “incumbent knows best” price realism protest is demonstrated in a recently released GAO bid protest decision, Resource Ltd., B-406492, B-406492.2 (June 6, 2012).

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Subcontractors And Past Performance: What Are The Risks?

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Inexperienced small government contractors sometimes rely primarily (or completely) on larger subcontractors to boost their past performance scores.  Although this practice sometimes results in better past performance scores, there are two risks small government contractors should be aware of when it comes to relying on a subcontractor’s past performance: poor evaluations and ostensible subcontractor affiliation.

A recent GAO bid protest decision, coupled with a decision of the SBA Office of Hearings and Appeals, demonstrates how each risk may affect a small government contractor.

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Proposal Ambiguity Torpedoes Contractor’s Bid

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Sometimes, unintentional ambiguities can lead to a few laughs.  One website, for instance, reports funny ambiguous newspaper headlines, such as “Kids Make Nutritious Snacks” and “Juvenile Court to Try Shooting Defendant.”

When it comes to bids and proposals, however, ambiguities are no laughing matter.  As one contractor discovered in a recent GAO bid protest decision, a procuring agency may reject a contractor’s bid if it contains an ambiguity regarding a material solicitation requirement.

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GAO: Agencies Must Consider SDVOSB Set-Asides Before Issuing Small Business Set-Aside RFPs

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One day back when I was in fourth grade, my teacher informed our class that Thomas Jefferson had never been a United States president.  I marched to the back of the classroom, pulled out the Encyclopedia Britannica, and quickly proved that Mr. Jefferson had, in fact, served in our nation’s highest office, leading to a chorus of laughter among the fourth graders of Winship Elementary.  After all, it’s rather amusing to find out that the person in charge got it wrong.  (No wonder my teacher never liked me very much after that stunt).

In a recent GAO bid protest decision, both the procuring agency and the SBA initially got it wrong, too, by erroneously relying on outdated regulations to argue that the agency need not consider a SDVOSB set-aside before awarding a small business set-aside contract.  Fortunately for SDVOSBs, the GAO set matters straight.

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GAO: Agency’s SBIR Phase III Decision Not Protestable

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A procuring agency’s decision not to enter into a Small Business Innovation Research program phase III funding agreement cannot be protested to the GAO in most cases, according to a recently-released GAO bid protest decision.

In Complere, Inc., B-406553 (June 25, 2012), NASA awarded Complere SBIR phase I and phase I research contracts.  After the phase II contract concluded, Complere submitted an unsolicited phase III proposal, which NASA did not accept–electing instead to do its own research on the topic in-house.  Complere filed a GAO bid protest, alleging that NASA had acted improperly.

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