GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
When it comes to hiring former government employees, criminal law prohibits certain conduct (like attempting to hire a contracting officer who is currently evaluating your proposal). But just because a hire meets the letter of the law does not mean that it won’t cause an organizational conflict of interest, or OCI.
That’s exactly what happened in the GAO’s decision in TeleCommunication Systems, Inc., B-404496.3 (Oct. 26, 2011)–and it cost a contractor an award.
“Veterans First” really means “Veterans First,” even if the VA would prefer to conduct an unrestricted procurement under the General Services Administration’s Federal Supply Schedule rather than conducting market research to see if the procurement can be set-aside for service-disabled veteran-owned small businesses. So said that GAO in an important bid protest decision for SDVO small businesses, Aldevra, B-405271 (Oct. 11, 2011).
In Aldevra, the VA attempted to purchase certain supplies for a VA Medical center through the GSA Schedule on an unrestricted basis. Aldevra, a SDVOSB, filed a protest with the GAO, arguing that before using the GSA Schedule, the VA should have conducted market research to determine whether two or more offers would be received from eligible SDVOSBs, and if so, should have set-aside the competition for SDVOSBs.
If your small business competes on an unrestricted (aka “full and open”) solicitation, you probably don’t submit a small business subcontracting plan. After all, small businesses are typically exempt from the subcontracting plan requirement, so why do the extra paperwork (and potentially foreclose subcontracting opportunities with large businesses?)
However, even on unrestricted procurements, you must be careful to forego a subcontracting plan only if you are actually small under the NAICS code assigned to the procurement. Otherwise, you could end up losing a contract, as one unfortunate contractor discovered in eTouch Federal Systems, LLC, B-404894.3 (Aug. 15, 2011), a GAO bid protest decision.
Small government contractors competing on set-asides are in a unique position. Unlike in the commercial world (and on unrestricted government contracts), small primes in the set-aside arena routinely subcontract to larger and more powerful companies. Sometimes these large subcontractors aren’t used to being in a secondary role, and can make life difficult for their smaller primes.
Case in point: subcontractors sometimes balk at providing small government prime contractors with their direct labor, fringe benefit, General and Administrative, or other pricing information, preferring to simply offer a fixed-price lump sum. Even when the government is uninterested in such details, having a full breakdown can help ensure compliance with the FAR’s subcontracting limits. But as one prime contractor found out, when the government wants a pricing breakdown, failing to include a subcontractor’s information can be fatal.
One small contractor recently learned this lesson the hard way.
Under the Department of Veterans Affairs’ Veterans First contracting program, an eligible service-disabled veteran-owned small business must be listed as a verified SDVOSB in the VA’s Vendor Information Pages to qualify for a SDVOSB award. But does this requirement apply to joint ventures?
Yes, according to the VA—and the GAO has upheld the VA’s interpretation. In A1 Procurement JVG, B-404618.3 (July 26, 2011), A1 Procurement LLC and Green Carpet Landscaping & Maintenance, Inc. created a joint venture, named A1 Procurement JVG. A1 Procurement LLC was a SDVOSB firm verified in the VetBiz system. Green Carpet was not a SDVOSB.
The VA rejected the joint venture’s proposal because the joint venture was not listed in the VetBiz database. The joint venture filed a bid protest with the GAO, arguing that the VA should have accepted its offer because the managing partner, A1 Procurement LLC, was listed in the database, and that a joint venture should not be required to be separately listed if the managing venture is listed.
GAO bid protest timeliness can be one of the most frustrating aspects of GAO bid protests. Typically, unless the contractor receives a debriefing, any post-award protest must be filed within ten days after the contractor knew or “should have” known of the basis of protest.
The “should have known” portion of the GAO bid protest timeliness rule has tripped up contractors for years, and continues to do so. In Golight, Inc., B-401866 (Sept. 10, 2009), the GAO held that a disappointed offeror “should have” known of its basis for protest on the day the contractor received an email—even though the recipient didn’t open the email until several days later.
Small contractors often rely upon the experience of corporate parents, subsidiaries, and other affiliates to bolster their past performance scores. Especially for new subsidiaries and joint ventures with minimal independent past performance, relying on corporate experience can help avoid a “neutral” past performance rating.
However, as two GAO cases show, it isn’t enough to simply identify an affiliate and rely on its experience. In order to receive credit, an offeror must identify the affiliate’s connection to the contract contemplated by the solicitation. Otherwise, you’ll leave the contracting officer scratching his or her head, and saying, “so what?”