GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
When is a competitor’s low price simply too low to be realistic? Maybe never, at least when it comes to challenging the low price in a GAO bid protest.
As seen in a recent GAO bid protest decision, when a fixed-price solicitation does not call for a price realism analysis, the procuring agency is not required to conduct one–and a competitor will not succeed in challenging the award on the basis of a supposedly unrealistically low price.
Bidding against an incumbent prime contractor often presents unique challenges. In some cases, the incumbent has been highly successful, and the procuring agency may hope to award the follow-on to the same company. Even if the agency is not predisposed to favor the incumbent, the incumbent often knows more than its challengers about how the new procurement will actually operate “in real life.”
But just because an incumbent has unique information about the ongoing procurement does not mean that the procuring agency is necessarily required to level the playing field by releasing that information to challengers. For instance, in one recent GAO bid protest decision, the GAO held that the procuring agency was not required to release the names of the incumbent’s subcontractors or other proprietary and confidential information about the incumbent contract.
The GAO has jurisdiction to decide protests challenging modifications to blanket purchase agreements, according to a recent GAO protest decision. In Crewzers Fire Crew Transport, Inc., B-406601 (July 11, 2012), the GAO rejected a procuring agency’s argument that BPA modifications are a matter of contract administration, and thus outside the GAO’s protest jurisdiction.
A SBA size protest can be a matter of life and death for a small business, which may find it impossible to effectively compete if it is found “other than small.” If a protested contractor loses a size protest, it is not necessarily the end of the road: it has the option of filing a size appeal with the SBA Office of Hearings and Appeals.
Winning a SBA OHA size appeal often results in “small” status once again, but a SBA OHA victory may have its limits. As one contractor recently discovered, if the procuring agency terminates a contract award following an adverse SBA size protest decision, the agency is not required to reinstate the contract if the contractor subsequently prevails in its SBA OHA size appeal.
When, in discussions, a procuring agency tells a contractor that an aspect of the contractor’s proposal is a weakness, the natural response is to correct the problem. In one recent GAO bid protest decision, however, correcting a weakness may have cost a contractor a $30 million award.
In EMR, Inc., B-406625 (July 17, 2012), the procuring agency informed the contractor that certain labor rates appeared low in comparison to other offerors’ rates, and labeled the low rates a weakness. In response, the contractor raised the rates in question, thereby increasing its overall price–then narrowly lost out on a low-price, technically acceptable contract.
The GAO’s verdict? The agency did nothing wrong.
Agencies have broad discretion when it comes to issuing 8(a) sole source contract awards. Although a procuring agency must provide the SBA with some justification as to why it selected a particular 8(a) company for a sole source contract, that justification can be very brief. And, as the GAO held in a recent bid protest decision, an 8(a) sole source contract justification need not explain why the 8(a) awardee was superior to another 8(a) company interested in the same contract.
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.