As a government contracts attorney, there is nothing I enjoy more than winning a victory on behalf of a client–then having the government pick up the tab. It doesn’t happen all the time, of course. The general rule in the United States is that everyone pays his or her own attorneys’ fees. But a recent GAO decision highlights the fact that, under the right circumstances, a successful GAO protester is entitled to recover its attorneys’ fees.
Category Archives: GAO Bid Protests
GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
The FAR’s Limitations on Subcontracting and IDIQ Contracts
Here’s a question I get with some frequency: “do I have to comply with the FAR’s subcontracting limitations for every task or delivery order?” You will be happy to learn that the GAO, at least, has answered this question “no.”
Although the FAR Limitations on Subcontracting clause, FAR 52.219-14, does not address IDIQs, task or delivery orders, the GAO has held that the subcontracting limitation FAR clause “applies to the contract as a whole and does not require that each delivery order placed under the contract satisfy the requirements of the clause.” Spectrum Security Servs., Inc., B-297320.2 (Dec. 29, 2005). According to the GAO in the Spectrum Security Services bid protest, the “contract as a whole” means that where a solicitation provides for the price evaluation of base and option years, the entire contract—both base and all priced options—will be reviewed to determine whether the offer complies with the subcontracting limits.
The Aldevra Saga Continues–and the GAO Throws the VA Some Lifelines
The VA has gotten beaten up pretty badly at the GAO lately. The governmental watchdog agency continues to sustain protests (the most notable being filed by a company named Aldevra) on the basis that the VA’s practice of obtaining goods and services on the Federal Supply Schedule without first determining whether the procurements can be set aside for service-disabled veteran-owned small businesses or veteran-owned small businesses is illegal.
However, in a recent bid protest decision regarding the same issue, the GAO ruled in the VA’s favor—and its ruling could bring an end to the Aldevra saga (an end many SDVOSBs and VOSBs are likely to find very unsatisfactory), if the VA accepts the GAO’s lifeline.
Is it Groundhog Day? Aldevra Strikes Again
In the kitschy but rather enjoyable 1993 movie Groundhog Day, a still young-looking Bill Murray plays a weatherman who finds himself repeating the same day over and over. For those following the battle between Aldevra, a service-disabled veteran-owned small business (and others in Aldevra’s corner), and the U.S. Department of Veterans Affairs, a Groundhog Day-style repetition seems to have emerged.
First, the VA issues an unrestricted solicitation under the Federal Supply Schedule. Second, Aldevra (or someone else), files a bid protest with the GAO, alleging that the VA’s use of the FSS violates its “Veterans First” obligations. Third, the GAO sustains the protest. And fourth, the VA keeps on doing it.
So here’s another Aldevra protest–any guesses what happens next?
Beware of Boilerplate: Unnecessary Certification Sinks Bid
It probably seemed like a good idea at the time. When 4Granite, Inc. submitted a bid in response to a Corps of Engineers IFB, 4Granite included a document not required by the government, titled “Company Information and F.A.R. and D.F.A.R. compliance statements.” In the compliance statement, 4Granite pledged to comply with the clause at FAR 52.212-1 and the clauses at FAR 52.212-3 through 5.
The problem? Those clauses weren’t in the IFB.
GAO: Agencies Cannot Ignore SBA OHA’s NAICS Code Designations
My daughter isn’t even eight months old yet, but she has developed a case of selective hearing. If she’s doing something she shouldn’t (like tugging on the blinds), and I tell her to stop, she often pretends not to hear and keeps right on going. By the time she’s two, she’ll probably be sticking her fingers in her ears and chanting, “la la la, I can’t hear you,” when she doesn’t want to acknowledge me.
Selective hearing isn’t limited to children. In one case, the Department of Veterans Affairs ignored the SBA’s designation of a new NAICS code for the solicitation. But, like my daughter, the VA didn’t get away with it for long.
It Takes Two: GAO Sustains Set-Aside Protest
It Takes Two is the name of a 1995 film starring Kirstie Alley, Steve Guttenberg, and the Olsen twins. With such a star-studded cast, I’m at a loss for why the film merits only a 5.1 rating from the harsh critics at IMDb. I am far too busy to investigate this apparent injustice by screening the film myself. However, “it takes two” is worth keeping in mind, because it sums up one of the most important rules for small government contractors.
Under the FAR, agencies are typically required to set-aside procurements exceeding $150,000 for small businesses if there is a reasonable expectation that at least two responsible small businesses will submit offers at fair market prices. When an agency fails to conduct adequate market research to determine whether the “rule of two” can be met, the GAO will sustain a bid protest, as was the case in DNO Inc., B-406256, B-406256.2 (Mar. 22, 2012).