Category Archives: GAO Bid Protests

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

GAO Protesters: Take Comments on the Agency Report Seriously (or Go Home)

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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.

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The VA’s SDVOSB Database and GAO Protests: Be Verified, Or Go Home

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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.”

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Subcontractor’s Provision of Bonds OK with GAO—But Watch Out for Affiliation

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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.

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OCIs and Former Government Employees: GAO Finds Agency Properly Excluded Contractor

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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.

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GAO: For VA, SDVOSB Set-Asides Trump GSA Schedule Buys

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“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.

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Subcontracting Plans, Full and Open Competition, and Your Small Business

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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.

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Lack of Detail on Subs’ Pricing Leads to Lost Contract

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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.

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