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.
Category Archives: GAO Bid Protests
GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.
Emailing Your Proposal? Don’t Wait Until The Last Minute
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.
Proposal Submission: Check Agency Security Requirements
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).
GAO’s Bid Protest Jurisdiction Encompasses OPIC Procurements
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
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.
Agency’s FedBizOpps Slip-Up Leads to Sustained GAO Protest
The GAO has made it clear that contractors are considered to have “constructive knowledge” of items agencies post on the FedBizOpps website. When agencies post on FedBizOpps, though, they must properly classify the posted information, or a GAO bid protest will be sustained, as was the case in TMI Management Systems, Inc., B-401530 (September 28, 2009).
Who Are You? Ambiguity as to Identity of Bond Principal Costs Joint Venture a Contract
“Who Are You?” asks Pete Townshend, the songwriter behind the tune a later generation would come to know as “The CSI Song.” It’s a good question when it comes to self-reflection (or catching criminals), but it’s not so great when the government is asking the same thing in reference to a bid bond.
An ambiguous bid bond can cost an otherwise successful offeror to lose a contract. And as the GAO’s decision in BW JV1, LLC, B-401841 (Dec. 4, 2009) demonstrates, it is especially important for offerors submitting as joint venturers or in other teaming arrangements to carefully consider their bid bond arrangements to eliminate any potential ambiguities.