GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
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.
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.
“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.
Kids love repetition. Even though my daughter isn’t 10 months old yet, some of her favorite games involve doing the same thing over and over. For instance, she throws a toy. I pick it up and give it back to her. She throws it again. And so on. She finds this hilarious, whereas I find the whole thing funny just because she’s so adorable (I admit to a bit of bias).
Repetition is also the name of the game in the GAO’s standoff with the VA over the VA’s refusal to set-aside procurements for SDVOSBs before procuring goods and services under the Federal Supply Schedule. The GAO recently sustained yet another bid protest, holding that the VA had improperly awarded a contract to a non-SDVOSB, even though 20 or more SDVOSBs were capable of doing the work. But before long, the showdown between the GAO and the VA may end, because one SDVOSB seems to have taken the matter to the U.S. Court of Federal Claims, which–unlike the GAO–has the power to compel the VA to put “Veterans First.”
Remember 80s band Nu Shooz? No? Even if the name doesn’t right a bell, I can almost guarantee that you’ve heard the band’s one hit, “I Can’t Wait.” Go on, take a listen on YouTube, and you’ll see that I’m right.
While you are busy bopping to that slice of 80s retro-ness, it’s worth knowing that “I Can’t Wait” is the rule when it comes to GAO bid protests based on architect and engineering procurements conducted under the Brooks Act. According to a recent GAO decision, unlike with a typical competitive procurement under FAR Part 15, an unsuccessful offeror cannot wait to file a GAO bid protest regarding matters of which it is already aware until after it receives a debriefing. Wait until after the debriefing, and the GAO might dismiss the protest as untimely–just like it recently did in the case of one unlucky protester.
“So, are you a small business?” “Nope.” “Great. How would you like a small business set-aside contract?” “Umm, sure, okay.”
The dialogue above is fictional (and its lack of quality demonstrates why I am a government contracts lawyer, not a Hollywood screenwriter), but it could have occurred in relation to a recent Department of Veterans Affairs procurement. In that case, a company self-certified that it was not small. Despite the certification, the VA awarded the company a small business set-aside contract.
Not surprisingly, the GAO had something to say about it.
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.