Category Archives: GAO Bid Protests

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

Agencies May Rely on Offerors’ Buy American Act Certifications Unless “Reason to Believe” Non-Compliance

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When an offeror submits a certification that its products qualify as domestic for purposes of the Buy American Act, an agency ordinarily may rely on that certification without further investigation, unless the agency has reason to believe that the products will not be compliant.

In a recent bid protest decision, the GAO held that an agency acted properly by relying on the offeror’s certification because the protester’s “unsupported allegations” were insufficient to trigger a requirement for further investigation.

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Key Personnel Unavailability Leads to Sustained GAO Protest

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Key personnel are an important term in many proposals. Establishing the resume, experience, and availability of personnel that will perform major functions of a contract is a key (dad joke) aspect of a winning proposal. As one offeror found out, when key personnel become unavailable, the technical acceptability of the entire offer can be in jeopardy.

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GAO Affirms any Discussions During Evaluations Must be Meaningful

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Evaluation of offers is a crucial point in the procurement process. During this time period, an agency may, in certain procurements, reach out with discussion questions meant to bring clarity to the decision-making process. However, any such discussions must be meaningful.

As one offeror recently found out, meaningful discussions even apply in so-called simplified acquisitions.

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GAO Affirms SBA Rule: Only Joint Venture Members, not the JV, Need Facility Clearance

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For years, it had been difficult for joint ventures to get Facility Security Clearances to go after DoD contracts where a facility clearance was required. The DoD and many contracting officers had long required that the joint venture entity itself, rather than each individual joint venture member, have the FCL. SBA thought it had fixed this problem when it updated its joint venture rules in November 2020 to eliminate the need for the joint venture to have an FCL, as we wrote at that time. But DoD contracting officers had been ignoring this rule, setting up a showdown at GAO to decide if the SBA’s rule did actually apply to the DoD.

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Small Business Being Acquired by a Large Business? For Multiple Award Contracts, the 180-Day Rule Doesn’t Apply to Task Orders, says GAO

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You may recall a post of ours back in April 2021, where we discussed a little-known change to SBA’s size determination rules that occurred in October 2020. SBA created an exception, at 13 C.F.R. § 121.404(g)(2)(iii), to the usual “size is determined at offer date” rule. Now, prior to award, when a small business is part of a merger or acquisition after it makes an offer on a solicitation, the business has to recertify its size, and depending on when that acquisition occurred, if the business is now large, it may lose its award.

However, the rule is for better or worse not that straightforward, as a small business learned in a recent GAO decision. Because a part of the rule says that task order awards in such cases may not be treated as small business awards, GAO concluded that such awards are still allowed.

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GAO: Meaningful Discussions Must Disclose Proposal Weaknesses Discovered After a Corrective Action

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Given the amount of competition in most solicitations, the ability of a contractor to receive feedback on its proposal can provide valuable information to help the contractor hone its response to best address the key factors sought by the agency in its solicitation. On those rare occasions when an agency reopens its solicitation and provides feedback to the individual offeror’s initial proposal, the contractor is provided such an opportunity–except when the contractor gets left out of the feedback party.

In a recent decision, an agency failed to disclose a flaw it first identified in its reevaluation of a contractor’s unchanged proposal after a corrective action. When the proposals were evaluated after the corrective action, the contractor ended up losing an award for which they were previously selected. As a result, the contractor filed a protest primarily asserting that, because the agency failed to provide feedback on its proposal, the agency’s evaluation of the proposal was unreasonable. GAO sustained the protest.

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