Category Archives: GAO Bid Protests

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

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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JVs Must be Listed in VetBiz for VA SDVOSB Set-Asides

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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.

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GAO Bid Protest Timeliness: Read That Government Email Right Away!

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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.

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Nice Affiliate You’ve Got There–But So What?

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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?”

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Above, Beyond, and Then Some: Proposal Disqualified for “Excessive” Extras

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Like Pavlov’s famous dogs,  government contractors are almost conditioned to offer the government more than the minimum requirements.  Think back to your own proposals—how many times have you offered the government a steeper discount, a more qualified person, or a superior technical solution than what was required?  It happens all the time–and often, the government seems to expect it.

Going above and beyond the minimum is usually a good thing, but, as the GAO’s decision in D’Andre Insurance Services, LLC, B-405046 (July 21, 2011) demonstrates, it is possible to go too far, and give the agency concerns about your understanding of the technical requirements.

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Is It Time To Rethink The GAO’s Prejudice Requirement?

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Under the GAO’s bid protest regulations, only an “interested party” may file a bid protest.  Over the years, GAO case law has established that a protester is not an “interested party” if the protester would not have had a reasonable chance of receiving award, but for the agency’s actions.

Under most circumstances, the “no harm no foul” prejudice rule makes sense.  After all, if a protester scored lower than the awardee on, say, all five technical factors, and had a higher price, should the agency really have to start from scratch if it made a minor error?  The rule generally helps weed out frivolous protests and keep the competitive procurement system functioning smoothly.  But occasionally the rule can lead to seemingly unfair and anticompetitive results, as happened in Gas Turbine Engines, Inc., B-401868.2 (Dec. 14, 2009).

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GAO: HUBZone Price Preference Not Optional

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When a contract contains FAR 52.219-4, the so-called “HUBZone price preference” clause, a procuring agency must apply the HUBZone price preference by adding a factor of 10 percent to the price of all other offerors, except HUBZone firms and otherwise successful small businesses.

For procuring agencies, applying the HUBZone price preference is not optional.  In Explo Systems, Inc., B-404952 (July 8, 2011), the GAO sustained a bid protest because the procuring agency failed to apply the HUBZone price preference.

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