Small businesses sometimes complain that large prime contractors are not always held accountable for failing to meet their small business subcontracting goals. If that complaint sounds familiar, you may be cheered by the GAO’s decision in a bid protest filed by one very well-known large prime contractor. In that case, the prime’s history of meeting (or perhaps, not always meeting) its small business subcontracting goals was a critical factor causing the large prime to lose out on a contract.
Category Archives: GAO Bid Protests
GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
GAO Confirms: VA SDVOSB Set-Asides Trump Schedule Buys
If this was a game of high-stakes poker, you might say the GAO has called the VA’s bluff.
Service-disabled veteran-owned small businesses rejoiced after the GAO held, in Aldevra, B-405271, B-405524 (Oct. 11, 2011) that federal law requires the VA to prioritize SDVOSB procurements over Federal Supply Schedule acquisitions. But, to the shock and outrage of the SDVOSB community, the VA has refused to follow the GAO’s interpretation of the law. Now, to mix card-game metaphors, the GAO has doubled down, issuing a second decision confirming its ruling in Aldevra.
SBA OHA, Not GAO, Decides NAICS Code Appeals
Appealing the NAICS code a procuring agency assigns to a set-aside solicitation can be a powerful tool: after all, if the NAICS code and corresponding size standard change, it can dramatically alter the competitive playing field. But if a company wants to file a NAICS code appeal, it must file with the SBA Office of Hearings and Appeals, not the GAO, which lacks jurisdiction to hear challenges to NAICS code designations—something the protester in BlueStar Energy Solutions, B-405690 (Dec. 12, 2011) learned too late.
GAO Protests and Bias Claims: Fuhgettaboutit
When small government contractors call me about potential GAO bid protests, they sometimes are convinced that the procuring agency was biased against them, or biased in favor of another offeor (in many cases, the incumbent). Fired up, these clients want to file scathing GAO protests, accusing the source selection officials of improprieties.
It’s my unpleasant job to tell these angry contractors, “unless you have ironclad evidence, I think you should save your money.” Although allegations of bias are relatively common in GAO protests, in my experience, the GAO almost never sustains a protest on this basis. In other words, as my friends from the Northeast might say, fuhgettaboutit.
GAO Protesters: Take Comments on the Agency Report Seriously (or Go Home)
The GAO bid protest process involves more than just the initial protest itself. After the protest is filed, the agency has the opportunity to take so-called “corrective action,” essentially conceding victory to the protester. But if the agency elects to fight the protest, and produces an agency report countering the protester’s arguments, the ball is back in the protester’s court.
The GAO expects a protester to file a detailed response (called “comments” in GAO protest parlance) to the agency report. Fail to file comments, and the GAO will dismiss the protest. But, as demonstrated in the GAO’s decision in Ross Technologies, Inc., B-405266.2 (Dec. 7, 2011), if the comments do not address the arguments in the agency report, it may be no better than not filing them at all.
The VA’s SDVOSB Database and GAO Protests: Be Verified, Or Go Home
If a service-disabled veteran-owned small business has been denied verification for the U.S. Department of Veterans Affairs’ Vendor Information Pages database, it cannot file a bid protest with the GAO challenging the VA’s award decision on a VA SDVOSB set-aside procurement—even if the company has a request for reconsideration pending with the VA’s Center for Veterans Enterprise.
So says the GAO in MICCI Imaging Construction Company, B-405654 (November 28, 2011), a decision in which the GAO held that a company that has been denied verification lacks “standing” to pursue a GAO bid protest of a VA SDVOSB set-aside to a competitor. Translating the legalese, the GAO’s message to non-verified companies is, “don’t waste our time.”
Subcontractor’s Provision of Bonds OK with GAO—But Watch Out for Affiliation
Small prime contractors often have difficulty securing necessary bid, performance and payment bonds for federal government contracts–especially in the construction industry, where payment and performance bonds are typically required. Not surprisingly, small primes often turn to their larger subs to secure the necessary bonding.
A small prime’s reliance on its subcontractor for bonding was recently put to the test in a GAO bid protest. Fortunately for small primes everywhere, in Shaka, Inc., B-405552 (Nov. 14, 2011), the GAO held that the subcontractor’s role in the bond process did not render the bond defective. But small primes and their large subcontractors shouldn’t pop the champagne for a celebration, because subcontractor bonding assistance can still increase the risk of ostensible subcontractor affiliation.