Tag Archives: bids and proposals

Awardee’s Bait And Switch Leads To Sustained Protest

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Ordinarily, whether an offeror’s proposed personnel actually perform under a contract is a non-protestable matter of contract administration. But GAO will consider the issue when an offeror proposes personnel that it did not have a reasonable basis to expect to provide during contract performance in order to obtain a more favorable evaluation. Such a “bait and switch” amounts to a material misrepresentation that undermines the integrity of the procurement and evaluation.

That’s exactly what happened in a recent protest, where the GAO disqualified the awardee from competition after determining that its proposal misrepresented the incumbent employees’ availability to continue working under the contract.

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Two Isn’t Greater Than Five, GAO Reminds Agency

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GAO sustained a protest recently where an agency had given higher past performance scores to a proposal with two relevant examples of past performance than a proposal with five relevant examples.

In Patricio Enterprises, Inc., B-412740 et al. (Comp. Gen. May 26, 2016), GAO said that an agency cannot mechanically apply an evaluation formula that produces an unreasonable result, such as allowing a proposal with fewer examples of relevant past performance to somehow earn a higher score than a proposal with more examples.

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Offeror Attempts To “Evade” RFQ Page Limit; GAO Sustains Protest

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An offeror’s apparent attempt to engage in a little proposal gamesmanship has resulted in a sustained GAO bid protest.

In a recent case, an offeror attempted to evade a solicitation requirement that proposals be no more than 10 single-spaced pages, by cramming its proposal into less than single-spacing.  The GAO wasn’t having it, sustaining a competitor’s protest and holding that the “spacing gamesmanship” had given the offeror an unfair advantage.

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GAO: Awardee’s Low Price Isn’t Too Low, Absent a Price Realism Evaluation

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In a fixed-price procurement, an agency cannot reject an offeror for proposing a “too low” price unless the solicitation specifically contemplates a price realism evaluation.

This point is one of several interesting issues recently addressed by GAO in URS Federal Services, Inc., B-412580 et al. (Mar. 31, 2016). Another interesting issue—pertaining to an offeror’s protest of the awardee’s subcontractors’ size—will be addressed in a forthcoming post. But this post serves as a reminder of an important limitation to a protester’s ability to challenge an awardee’s price.

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Bare-Bones Organizational Chart Sinks Proposal

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When a procuring agency asks for details, an offeror better provide those details–or run the risk of exclusion from the competition.

Recently, the GAO has confirmed that offerors must provide sufficient detail or run the risk of being eliminated from a competition. First, came Res Rei Development, Inc., B-410466.7 (Comp. Gen. Oct. 16, 2015), where GAO held that an agency can find a proposal technically unacceptable when it essentially parrots the terms of the solicitation. Now comes LOTOS S.r.l., B-411717.5 (Comp. Gen. Nov. 19, 2015), where GAO found that the agency had reasonably excluded an offeror from the competition based in part on the offeror’s failure to provide a detailed organizational chart.

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Nonmanufacturer Rule: Post-Proposal Substitutions Don’t Work

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The nonmanufacturer rule requires, among other things, that the prime contractor supply the end items of a small business manufacturer, or obtain a SBA waiver of that requirement.  Compliance with the nonmanufacturer rule is determined as of the date of the final proposal–and a subsequent switch in manufacturers won’t be recognized by the SBA.

In a recent decision, the SBA Office of Hearings and Appeals held that the SBA had erred by evaluating a prospective prime contractor’s nonmanufacturer rule compliance because the small business end manufacturer in question had not provided a quotation to the prime until well after the prime’s proposal had been submitted.

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GAO To Contractors: Use Your Own Words

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In a recent decision, the GAO played seventh-grade English teacher, reminding offerors to use their own words to get full proposal-writing credit.

In the case of Res Rei Development, Inc., B-410466.7 (Oct. 16, 2015), the agency found a proposal unacceptable because, in its view, the offeror had simply restated the terms of the solicitation. The GAO agreed with the agency’s decision, writing that a proposal that merely restates the requirements of the solicitation without adding detail and insight into how the offeror would manage and execute the contract can be found unacceptable.

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