Category Archives: GAO Bid Protests

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

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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A Victory for Common Sense: GAO Refuses to Allow Agency To Elevate Form Over Substance

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Good news for contractors: the GAO has ruled that an agency evaluation cannot be based on unimportant or meaningless distinctions, in which the agency appears to care more about the form of an offeror’s proposal than its substance.  In Engineering Management & Integration, Inc., B-400356.4 (May 21, 2009), the GAO sustained a protest of a Department of Education contract award, holding that the agency improperly elevated form over substance in its evaluation.

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GAO: Agencies May Request Size Recertification on Long-Term IDIQs

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Ordinarily, a business is “small” for purposes of a set-aside government contract if it falls below the applicable size standard (determined by NAICS code) on the date of its initial offer.  The same policy holds true on long-term indefinite delivery/indefinite quantity contracts: if a business is small for the initial IDIQ award, it is small for subsequent task orders—unless the procuring agency asks for recertification, and the contractor has grown in the interim.

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GAO: Post-Award Modifications Unfair; Protest Sustained

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An agency cannot make material changes to a solicitation after selecting a contractor for award without going back and giving all offerors the opportunity to compete on the revised solicitation.  In Diebold, Inc., B-404823 (June 2, 2011), the GAO sustained a bid protest because the agency failed to allow the protester to compete on the revised solicitation.

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GAO: SDVOSBs Preferred Over Veteran-Owned Businesses for VA Procurements

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Unlike most agencies, the Department of Veterans Affairs offers contracting preferences for businesses owned by veterans who are not service-disabled.  However, as the GAO confirmed in Buy Rite Transport, B-403729, B-403768 (Oct. 15, 2010), even at the VA, service-disabled veteran-owned small businesses are preferred over veteran-owned small businesses.

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