Category Archives: GAO Bid Protests

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

GAO Bid Protests: Email Filings Must Use Correct Address

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If there’s anything worse than losing a GAO bid protest, it’s losing a GAO protest on a technicality.

One of the many conveniences GAO offers protesters is the ability to file protest-related documents by email.  But protesters must timely file their documents at the email address provided under the GAO’s regulations—protests@gao.gov–or their filings will be disregarded.  As one protester learned the hard way, even emailing the document to the individual email address of the GAO attorney deciding the protest isn’t a substitute for using protests@gao.gov.

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Large Contractor Downgraded for Inadequate Subcontracting Plan

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Many contractors, large and small, will tell you that the government is taking its small business obligations seriously these days.  The renewed emphasis on small business can be seen not only at the prime contracting level, where we are finally getting close to the 23% government-wide goal, but also at the subcontracting level.

Contracting agencies are closely scrutinizing large businesses’ subcontracting plans for small and disadvantaged businesses.  Case in point: the agency evaluation in L-3 STRATIS, B-404865 (June 8, 2011).

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GAO: Oral Advice Doesn’t Alter Solicitation Terms

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In negotiated procurements, contractors sometimes enter into discussions with agency representatives.  But contractors must understand that oral discussions don’t trump a solicitation’s terms.  If a government solicitation includes clear and specific requirements, the agency’s subsequent oral advice to the contrary doesn’t waive or alter the solicitation–a rule confirmed, to one contractor’s detriment, in a recent GAO bid protest decision.

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Emailing Your Proposal? Don’t Wait Until The Last Minute

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I hate waiting until the last minute to do things.  My wife knows that we need to get to the airport with plenty of time to spare before our flight takes off, or I start getting stressed.  When I have a filing deadline, I tend to submit my documents well in advance.  Sometimes, I have to wait for a client’s sign-off on a final draft, or a last tweak to an exhibit, as the minutes to the deadline tick away.  When that happens, people who know me well can see my blood pressure begin to slowly rise.

My way of doing things isn’t everyone’s.  For folks who “work best under pressure,” as they say, working right up until a deadline is par for the course.  But as one recent GAO bid protest decision highlights, emailing a proposal to a procuring agency at the last minute can be dicey because electronic deliveries are not necessarily instantaneous.  Filing shortly before the deadline closes, even by email, may result in a late proposal.

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Proposal Submission: Check Agency Security Requirements

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During my first summer in Washington, D.C. many years ago, I spent a hot, sticky Fourth of July on the National Mall, eating picnic food and watching the fireworks.  I’m sure a few security personnel were around, but I took no notice of them.  Flash forward to another Fourth on the Mall—this one post-9/11.  On that Fourth, everyone entering the Mall had to pass through security before celebrating America’s birth.  I remember mixed emotions—I was glad that the government was focusing on public safety, but frustrated about standing in a long security line just to reach the Mall.

Security is a reality of life these days, especially when dealing with the government.  That’s why if you plan to hand-deliver a proposal to a procuring agency, be sure to check the agency’s security requirements well in advance of your planned delivery time, or the proposal could be rejected as late.  One contractor learned this lesson the hard way, as described in the GAO’s bid protest decision in B&S Transport, Inc., B-404648.3 (Apr. 8, 2011).

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GAO’s Bid Protest Jurisdiction Encompasses OPIC Procurements

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The GAO has ruled that it has jurisdiction over bid protests filed on Overseas Private Investment Corporation (“OPIC”) procurements.

In MFM Lamey Group, LLC, B-402377 (Mar. 25, 2010), the GAO rejected OPIC’s argument that its procurements fall outside GAO’s jurisdiction.  GAO has jurisdiction over protests of procurements by a “federal agency.”  Although OPIC is a government-owned corporation, not an agency, GAO held that the definition of “federal agency” in the Competition in Contracting Act (“CICA”) includes wholly-owned government corporations, and thus gives the GAO bid protest jurisdiction over OPIC.

Unfortunately for the protester in the MFM Lamey Group case, the jurisdictional victory was the only win it got.  After holding that it had jurisdiction, the GAO went on to deny the protest.

Contradictory Discussions Question Should Have Been Protested Pre-Award

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Imagine that only days remain until your proposal is due, and your company receives a discussions letter from the agency.  Reading the letter, you’re confused—one of the agency’s instructions seems to directly contradict the solicitation.  What do you do?

If you’re like most contractors, the last thing on your mind is running to the GAO with a bid protest.  After all, you haven’t even submitted your proposal—the last thing you want to do is upset the agency before it even evaluates your offer.  So you take your best guess as to what the agency intends and submit your final proposal revision.  If the agency makes award to a competitor, you can protest at that time, right?

Wrong, according to a recent GAO bid protest decision.

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