GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
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.
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 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).
In 2008, Congress granted GAO the authority to hear bid protests of task orders valued at more than $10 million. After this provision sunset in 2011, the GAO held in Technatomy Corp., B-405130 (June 14, 2011), that it had authority to hear bid protests of task orders of any size.
Congress, apparently, did not approve of GAO’s newfound expansion of its bid protest authority. In December 2011, it passed legislation to reinstate the $10 million threshold. Notably, the amendment applies to task order solicitations issued during that “golden period” between June and December 2011.
It sounds more like a scene from “All the President’s Men” than the factual background of a GAO bid protest. In McTech Corporation, B-406100, B-406100.2 (Feb. 8, 2012), an anonymous caller tipped off a procuring agency that McTech had an apparent organizational conflict of interest, leading to McTech’s exclusion from the competition. The resulting GAO bid protest didn’t bring down a presidential administration, but it does provide a cautionary tale on the intersection of SBA mentor-protégé agreements and OCIs.
Is the GAO the new best friend of small businesses? That might be going a bit too far, but in recent years, the GAO has sided with small businesses in several important bid protests regarding the scope of small business preferences and set-asides.
First, in Delex Systems, Inc., B-400403 (Oct. 8, 2008), the GAO held that the small business set-aside provisions of FAR 19.502-2(b)—the so-called “rule of two”—apply to competitions for task and delivery orders under multiple-award contracts. In Aldevra, B-405271, B-405524 (Oct. 11, 2011) and Kingdomware Technologies, B-405727 (Dec. 19, 2011), the GAO sided with service-disabled veteran-owned small businesses against the very federal agency created to support veterans, holding that the VA had improperly used the Federal Supply Schedule rather than set-asides for SDVOSBs. The decision in The Argos Group, LLC, B-406040 (Jan. 24, 2012), follows in this vein—and this time is a nice win for HUBZone small businesses.
Here’s a piece of music trivia: apparently, “Get It Right the First Time” is both a song by Billy Joel and a 1997 live album by Canadian punk band SNFU. Somehow, I’m guessing there aren’t too many people who own both The Stranger (the classic Joel album featuring the song), and the SNFU opus, which offers decidedly un-Joel like song titles, such as “Drunk on a Bike” and “Cannibal Café.”
Billy Joel and SNFU might not have much else in common, but “Get It Right the First Time” is a good mantra when it comes to service-disabled veteran-owned small businesses. When a service-disabled veteran-owned small business submits a verification application to the VA Center for Veterans Enterprise, it is important to get the application right from the start. As a recent GAO bid protest decision shows, even a successful second bite at the apple might mean lost contacts in the interim.