GSA e-Buy “Purges” May Be Improper, Says Federal Court

Posted on October 26, 2012 by Steven Koprince

The GSA e-Buy website may have improperly failed to preserve critical solicitation records, according to the U.S. Court of Federal Claims.

In Laboratory Corp. of America v. United States, No. 12-622C (2012), the court has asked the government to explain why it should not face sanctions for so-called “spoliation” of evidence, arising from the inability to access archived e-Buy materials. The court also suggested that the procuring agency might have used e-Buy to improperly attempt to modify a solicitation without issuing a formal amendment.

SBA 8(a) Mentor-Protege Joint Ventures: SBA OIG Questions Oversight

Posted on October 25, 2012 by Steven Koprince

SBA 8(a) mentor-protege joint ventures suffer from inadequate oversight and may not adequately benefit 8(a) protege firms, says the SBA Office of Inspector General. In a recently-released report, the SBA OIG criticized the SBA’s oversight of 8(a) mentor-protege joint ventures, finding that there is no way to ensure that 8(a) protege’s substantially benefit from the 8(a) mentor-protege joint venture program.

Some highlights from the 37-page report follow.

HUBZone Price Preference: GAO Confirms Application to GSA Leases

Posted on October 25, 2012 by Steven Koprince

The HUBZone price preference applies to GSA leasehold acquisitions, according to a GAO decision confirming a prior bid protest ruling.

In General Services Administration–Reconsideration, B-406040.2 (Oct. 24, 2012), the GSA asked the GAO to reconsider its decision in The Argos Group, LLC, B-406040 (Jan. 24, 2012), in which the GAO initially held that the HUBZone price evaluation preference applies to GSA lease acquisitions. The GAO–with the SBA’s support–confirmed its prior ruling, holding that the GSA cannot evade the HUBZone price preference when it issues a competitive procurement to acquire a lease.

Teaming Agreements and Proprietary Information: A Cautionary Tale

Posted on October 24, 2012 by Steven Koprince

Are you taking adequate steps to protect your proprietary and confidential information from misuse by teammates?

If your teaming agreement or non-disclosure agreement requires you to mark proprietary information with a “protected” legend, the answer may be “no.” Although many standard teaming agreements and non-disclosure agreements require protective legends in order to protect confidential information, contractors sometimes fail to apply the appropriate legend. And when that happens, at least according to a recent decision of the U.S. Court of Federal Claims, the contractor may have no basis to complain that the teammate stole its confidential information.

Price Realism: Agency Improperly Used Unacceptable Proposals for Comparison

Posted on October 23, 2012 by Steven Koprince

Earlier this week, the International Cycling Union announced that it would strip Lance Armstrong of his seven Tour de France titles, stating that overwhelming evidence existed that Armstrong had won those titles by doping. For cyclists who play by the rules, it is only fair that they not be forced to chase Armstrong’s Tour record, which he apparently achieved in an unacceptable way (and you can count me among those who think Roger Maris and Hank Aaron have pretty strong claims to baseball’s single-season and career home run marks, too).

When it comes to sporting records, comparing a clean athlete to a cheater seems unfair. Similarly, in the government contracting world, using unacceptable proposals as a basis of comparison for other proposals’ price realism is improper, according to a recent GAO bid protest decision. In Lifecycle Construction Services, LLC, B-406907 (Sept. 27, 2012), the GAO sustained the protest because of significant errors in the agency’s evaluation of the protester’s price realism–including comparing that price to the prices of three unreasonably high-priced proposals.

WOSB Downgraded for Reliance on Teammate’s Experience

Posted on October 22, 2012 by Steven Koprince

Small government contractors often rely on teammates and subcontractors to demonstrate relevant experience. But as one recently-published GAO bid protest decision shows, some procuring agencies may take a dim view of such reliance.

In Quasars, Inc., B-405747 (Dec. 7, 2011), the agency found that a woman-owned small business’s reliance on a teammate for relevant experience was risky, because that teammate might leave, depriving the team of the necessary expertise. The GAO found nothing unreasonable in the agency’s evaluation.

Government Rejects Contractor’s Bills for Flowers, Hunting Club, Jazz

Posted on October 18, 2012 by Steven Koprince

Roses are red, violets are blue–and a government contractor can’t bill Uncle Sam for either one, according to a recent decision of the Armed Services Board of Contract Appeals.

In Thomas Associates, Inc., ASBCA No. 57795 (2012), the ASBCA rejected a contractor’s claim that it was entitled to stick the government with a variety of costs I will charitably describe as “questionable,” including a hunting club membership, jazz ensemble, a lavish Christmas party, and yes, flowers given to employees, ostensibly to boost morale.