In discussions, a procuring agency is not required to inform a prospective contractor that its costs are higher than those of its competitors, unless those costs are so high as to be unreasonable.
This important potential limitation on the scope of discussions was at issue in a recent GAO bid protest decision, in which the GAO held that an agency had not erred by failing to inform an offeror that its proposed costs were approximately $3 million higher than the awardee’s.
The SBA’s “successor-in-interest” affiliation rule provides that a government contractor can be affiliated with a dissolved or liquidated company, but only if the government contractor acquires “all, or nearly all” of the dissolved company’s assets and liabilities.
According to a recent commonsense decision of the SBA Office of Hearings and Appeals, the successor-in-interest affiliation rule does not apply when a government contractor acquires only some of the dissolved company’s assets and liabilities.
An agency may amend a solicitation after the deadline for receiving offers, so long as the amendment is not “so substantial as to exceed what prospective offerors reasonably could have anticipated” in submitting offers under the original solicitation.
This rule, which is codified at FAR 15.206(e), was at issue in a recent GAO bid protest decision, in which the GAO held that the amendment merely clarified the original solicitation and thus did not require cancellation.
Small government construction contractors often have difficulty obtaining required bonding–which sometimes causes them to turn to their subcontractors for bonding assistance.
But what if a subcontractor cannot (or will not) provide the necessary bonding assistance? According to a recent federal grand jury indictment, one California man took advantage of these situations by offering fraudulent bonds–at higher premiums–to government contractors. The man now faces the possibility of more than 30 years in prison.
“Everyone is entitled to his own opinion, but not his own facts,” said the late Senator Daniel Patrick Moynihan.
In a recently published bid protest decision, the GAO held that a procuring agency was not entitled to its own facts when it came to the contents of the protester’s proposal. Because the proposal contained the very items the agency claimed were missing, the GAO sustained the protest.
I am pleased to announce that I have joined with Guy Timberlake of the American Small Business Coalition and Larry Allen of Allen Federal Business Partners to produce a new Internet-based radio show called Position To Win: Policies, Protests and the Pursuit of Opportunities.
Every two weeks, Guy, Larry and I will offer our take on policy, legislative, and legal matters affecting small government contractors. In today’s segment, Guy discussed small business set-aside contracting dollars, Larry weighed in on the potential small business impacts of the pre-award protests of the GSA OASIS vehicle, and I talked about the recent bill to move SDVOSB verification from the VA to the SBA.
Guy and Larry are two of the most knowledgeable voices in the industry, and I’m happy to join them on Position To Win. I hope you’ll tune in.
GAO bid protests regarding a competitor’s compliance with the applicable limitation on subcontracting can be difficult to win.
As the GAO held in a recent bid protest decision, unless the competitor’s proposal “on its face” should have led the procuring agency to recognize that the limitation on subcontracting would be violated, the agency is free to assume that the offeror intends to comply. Of course, as was the case in the recent decision, it doesn’t hurt the protested company to specifically state that it will comply with the limitation on subcontracting.