Category Archives: GAO Bid Protests

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

GAO Protests: Unfair “Pop Quiz” Leads to Sustain Decision

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My least favorite college class was a physics course, supposedly for non-majors, which I took only to meet my graduation requirements.  One week, we spent a great deal of class time going over some rather complex material in the main textbook.  The following week, the professor gave a pop quiz–on completely different material, which I (along with many of my classmates) had not read very closely.  Needless to say, I thought the whole thing was rather unfair.

A recent GAO bid protest decision brought back those unpleasant memories.  In Rocamar Engineering Services, Inc., B-406514 (June 20, 2012), an agency gave an extra test to an unprepared contractor–and only that contractor.  Fortunately, unlike my grade in that physics course, the result of this unfair pop quiz was overturned, by way of a sustained GAO protest.

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Discussions: Who Needs ‘Em?

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The Canadian band Barenaked Ladies (if my blog readership spikes today, I will suspect it’s from folks seeking something else by Googling that term) have a song called “Who Needs Sleep?”  As the father of a 10-month old, the chorus–“Who needs sleep?  Well you’re never gonna get it”–describes my life pretty accurately.

If BNL had been singing about federal procurements instead of slumber, the band might have used a similar chorus: “Who needs discussions?  Well you’re never gonna get ’em.”  As a pair of recent GAO bid protest decisions demonstrate, there is generally no requirement that a procuring agency engage in discussions with offerors, and it’s evident why many agencies avoid them: discussions remain fertile ground for sustained GAO bid protests.

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GAO Confirms: AbilityOne Trumps SDVOSB for VA Set-Asides

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The VA has been on the receiving end of a number of GAO bid protest decisions, the most recent issued just a few weeks ago, holding that the VA is acting illegally by ordering off the Federal Supply Schedule without first determining whether the procurement at issue can be set-aside for service-disabled veteran owned small businesses.  But the GAO’s recommendations, and the outrage from the veteran community (which, in my opinion, is very well-deserved), have not stopped the VA from pushing ahead with its “FSS First” acquisition strategy.

Now, the VA has pushed SDVOSBs even further toward the back of the line.  The VA has determined that the Javits-Wagner-O’Day, or JWOD Act, which calls for agencies to make certain purchases from nonprofits listed by the Committee for Purchase for People who are Blind or Severely Disabled (also known as the “AbilityOne” program), trumps SDVOSB set-asides for items on the Committee’s list.

And this time, the VA agrees with the GAO.

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FedConnect Mistake Sinks Contractor’s Bid

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I’m no technology whiz by any stretch, but when I worked on Capitol Hill before law school, my boss made me the office systems administrator, responsible for troubleshooting computer and tech issues.  Occasionally, I had to call in outside help, but most of the time I relied on that old standby, control-alt-delete, to “fix” my colleague’s computers.  Once, when I was in a meeting, a colleague called me back to the office in a panic, because the copier wasn’t working.  The problem, which I quickly diagnosed: it wasn’t plugged in.

I bring this up because sometimes, even very smart people like my Capitol Hill colleagues are not so great with technology.  The same is true in the government contracting arena.  No matter how wonderful a proposal a contractor writes, it does no good if technology problems prevent it from reaching the procuring agency on time.  As agencies turn more and more to higher-tech  methods for obtaining contractor’s proposals, like the FedConnect system, it is critical that contractors understand how the technology works, as one contractor learned the hard way in a recent GAO bid protest decision.

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GAO Bid Protests: Five Common Mistakes

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Those who follow SmallGovCon regularly know that I read a lot of GAO bid protest decisions (and often comment on them here).  Reading the decisions—and working on many GAO protests for clients—I see some of the same mistakes repeated over and over.

These common mistakes can, and do, cost a government contractor a shot at a successful GAO protest.  So here, in no particular order, are my top five common GAO bid protest mistakes.

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GAO Protests: Incumbent Contractor Rejected as Technically Unacceptable

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Remember the “Dan & Dave” commercials for Reebok?  In advance of the 1992 Olympics, the shoe company launched an advertising campaign centered on the competition between two American decathletes, Dan O’Brien and Dave Johnson.  At the time, O’Brien seemed like better bet–he was the reigning world champion and held a new world record in the sport.  Reebok’s campaign fizzled, however, when O’Brien missed the pole vault at the Olympic trials and failed to qualify for the U.S. team.  It didn’t matter that O’Brien was possibly the best decathlete in the world.  He didn’t do well at the trials, so he didn’t get a spot on the team.

If you are an incumbent contractor, Dan O’Brien’s story is worth keeping in mind.  As demonstrated in a recent GAO bid protest decision, if you write a technically unacceptable proposal, it doesn’t matter how well you have performed on the incumbent contract.  The agency can–and will–disqualify an incumbent contractor for writing an unacceptable proposal.

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FAR Subcontracting Limitation Mishap Proves Costly

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“Pop quiz, hot shot.”

Sound familiar?  It’s from the 1994 thriller Speed, in which Dennis Hopper’s deranged character straps a bomb to a passenger bus and rigs the bomb to blow up if the bus’s speed dips below 50 miles per hour.

So why do I bring up one of the few decent movies either Keanu Reeves or Sandra Bullock ever made?  Because today’s edition of SmallGovCon also involves a pop quiz, and here it is: what is the subcontracting limit on a small business set-aside contract for services?  If you answered “50% of the prime contract’s value,” sorry, your bus just blew up.

Contrary to common wisdom, the subcontracting limit for a services contract encompasses only the costs associated with personnel, not the entire cost of the contract.  Confusion over which costs count toward the subcontracting limit can result in the proposal being excluded from the competition, as one contractor recently learned the hard way.

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