Did the FAR Plan For COVID-19? Yes, Sort of

There are not many people or organizations that can say they anticipated the spread of this pandemic disease that is confining million to their homes as part of stay in place orders and self quarantines.

Though the FAR Council did not foresee that the coronavirus and COVID-19 would trap contractors in their homes, it did anticipate that from time to time events completely out of the control of contractors may conspire to affect the performance of contracts—though perhaps not to this magnitude.

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GAO to Agency: Offerors are More than Just a CPARS-Generated Rating Percentage

GAO recently sustained protest to an agency’s FAR Part 13 procurement that relied exclusively on CPARS-generated assessment chart rating percentages to evaluate vendors’ past performance. The agency’s goal was to “maximize competition” by considering all past work, rather than just relevant work. While there is no FAR Part 13 regulatory prohibition on doing so, GAO found the CPARS charts incomplete and misleading and the evaluation inconsistent with the terms of the solicitation.

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DoD Proposes Updating DFARS With 15-Day “Prompt Payment” Rules

The Department of Defense awarded contracts to an average 30,806 small businesses each year in fiscal year 2016, 2017, and 2018. A proposed rule to update the DFARS may lead to these same businesses receiving payments from the government, or prime contractors, within 15 days of invoicing.

The proposed rule is found at 84 FR 25225. It was published on May 31, 2019 and comments close on July 30, 2019 if you’d like to put in your two cents.

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Landmark ASBCA Decision Means Government Can be Bound to Commercial Computer Software Licenses It Hasn’t Even Seen

The FAR generally favors the Government clients’ entitlement to data and software rights in federal procurements. This has commonly—and understandably—led to disgruntled contractors who didn’t realize what they were truly giving up when they opted to use their own software in performance of contracts without including regulation-compliant markings and protections.

But recently—thanks to a first-of-its-kind decision by the ASBCA—it seems the tide may have turned in favor of protecting these contractor-inventors from the standard Government windfall in its data rights acquisitions.  Let’s take a closer look.

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GAO: Failure To Explain Prejudice Doomed Otherwise Successful Protest

Imagine that you’re a manufacturer of appliances, and respond to a solicitation seeking one of your appliances (on a brand name basis). You, of course, propose to provide your appliance. But you lose out on an award to an offeror that submits an offer for a different appliance that admittedly does not comply with the solicitation’s minimum requirements.

In this situation, you’d probably be fairly upset. And as a recent GAO decision acknowledged, you’d likely have a successful basis of protest—that is, if you could establish that you were prejudiced by the government’s award decision, and if you understood what exactly the GAO means by “prejudice.”

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Undisclosed Agency File Size Limit Sinks Offeror’s Proposal

An offeror’s proposal was properly rejected as late because the proposal exceeded the agency’s email file size limit.

In a recent bid protest decision highlighting the importance of not submitting electronic proposals at the last minute, the GAO held that a small business’s proposal was late because the emails transmitting the proposal exceeded 10 MB–even though the solicitation didn’t mention a file size limit.

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GAO: “Brand Name Only” Restrictions Must Be Justified

Competition is the touchstone of federal contracting. Except in limited circumstances, agencies are required to procure goods and services through full and open competition. In this regard, an agency’s decision to limit competition to only brand name items must be adequately justified.

GAO recently affirmed this principle in Phoenix Environmental Design, Inc., B-413373 (Oct. 14, 2016), when it sustained a protest challenging the Department of the Interior, Bureau of Land Management’s decision to restrict its solicitation for herbicides on a brand name basis.

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