Category Archives: GAO Bid Protests

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

GAO: HUBZone Price Preference Applies to GSA Lease Procurements

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Is the GAO the new best friend of small businesses?  That might be going a bit too far, but in recent years, the GAO has sided with small businesses in several important bid protests regarding the scope of small business preferences and set-asides.

First, in Delex Systems, Inc., B-400403 (Oct. 8, 2008), the GAO held that the small business set-aside provisions of FAR 19.502-2(b)—the so-called “rule of two”—apply to competitions for task and delivery orders under multiple-award contracts.  In Aldevra, B-405271, B-405524 (Oct. 11, 2011) and Kingdomware Technologies, B-405727 (Dec. 19, 2011), the GAO sided with service-disabled veteran-owned small businesses against the very federal agency created to support veterans, holding that the VA had improperly used the Federal Supply Schedule rather than set-asides for SDVOSBs.  The decision in The Argos Group, LLC, B-406040 (Jan. 24, 2012), follows in this vein—and this time is a nice win for HUBZone small businesses.

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GAO: Successful Reconsideration Request Does Not Save VA SDVOSB Contract

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Here’s a piece of music trivia: apparently, “Get It Right the First Time” is both a song by Billy Joel and a 1997 live album by Canadian punk band SNFU.  Somehow, I’m guessing there aren’t too many people who own both The Stranger (the classic Joel album featuring the song), and the SNFU opus, which offers decidedly un-Joel like song titles, such as “Drunk on a Bike” and “Cannibal Café.”

Billy Joel and SNFU might not have much else in common, but “Get It Right the First Time” is a good mantra when it comes to service-disabled veteran-owned small businesses.  When a service-disabled veteran-owned small business submits a verification application to the VA Center for Veterans Enterprise, it is important to get the application right from the start.  As a recent GAO bid protest decision shows, even a successful second bite at the apple might mean lost contacts in the interim.

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Large Primes: Meet your Subcontracting Goals–Or Else

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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.

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GAO Confirms: VA SDVOSB Set-Asides Trump Schedule Buys

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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.

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SBA OHA, Not GAO, Decides NAICS Code Appeals

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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.

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GAO Protests and Bias Claims: Fuhgettaboutit

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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.

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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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