GAO: Unequal Exchanges With Offerors by Agency Leads to Sustained Protest

An agency providing an opportunity to substantially revise a proposal can seem too good to be true. And sometimes, it is. It is a fundamental principle of procurement law that offerors must be treated equally. When one offeror is given an opportunity to “fix” the deficiencies in its proposal, but the other offeror is not, that is fundamentally unfair.

As one offeror found out, despite submitting everything to the agency as it was asked, GAO still sustained the protest.

Continue reading

Proposal Points of Contact: Don’t Rely on Automatic Email Response, GAO Decision Warns

Agencies commonly ask offerors to designate a point of contact for communications about the proposal. But what happens if the person the offeror identifies is unavailable when the agency reaches out?

A recent GAO bid protest decision is a cautionary tale and suggests some best practices for offerors.

Continue reading

In VA Tiered Evaluation, Small Business Couldn’t Protest SDVOSB Discussions

After the Supreme Court’s unanimous Kingdomware decision affirmed the VA’s statutory obligation to prioritize SDVOSBs in its contracting, the VA authorized the use of so-called “tiered evaluations.” In a typical VA tiered evaluation, various categories of offerors can submit proposals, but SDVOSB proposals are considered first, then VOSB proposals, and so on.

Recently, a non-SDVOSB small business protested the VA’s decision to open discussions with the only SDVOSB offeror to submit a proposal–discussions that allowed the SDVOSB to win the contract. But according to the GAO, the small business couldn’t file a valid protest because the small business wasn’t in the same tier.

Continue reading

Protester Argues the Agency Played “The Price Is Right” During Discussions

Negotiating with the federal government regarding pricing can sometimes feel like trying to win an RV from Bob Barker. Such was the experience of one protester. The government recommended a price increase during discussions and the contractor raised its price. The price increase, however, ultimately cost the offeror the award.

The agency’s conduct was subsequently protested before GAO, but GAO was not receptive.

Continue reading

COFC Clarifies When Agency Must Seek Clarification

Agencies have some discretion to seek clarification of a question after reviewing a proposal. But when must the agency do so? GAO allows agencies substantial discretion in choosing whether or not to seek proposal clarifications. But the Court of Federal Claims has a dramatically different standard than GAO for reviewing when an agency must seek clarification for a proposal.

A recent Court of Federal Claims decision confirms (as in a 2016 decision) that agencies should seek clarification for obvious proposal errors. But according to the court, there is a difference between an obvious proposal error and a calculated decision on the contractor’s part. This decision was about how to tell the difference.

Continue reading

GAO: Agency Conducted Price Realism Analysis and Misled Protester

Unless a solicitation for a fixed-price contract provides that the agency can conduct a price realism analysis, it can’t. Even so, agencies sometimes perform this analysis without alerting prospective offerors of the possibility.

If they do, however, the ground is fertile for a protest.

Continue reading

GAO: No Set Aside Required Where Offerors’ Prices Too High

An agency was justified in canceling a small business set-aside solicitation–and reissuing the solicitation on an unrestricted basis–where the agency determined that the prices offered by small businesses were too high.

In a recent bid protest decision, the GAO confirmed that while the FAR’s “rule of two” set-aside requirement provides a powerful and important preference for small businesses, it doesn’t require an agency to pay more than fair market value for products or services.

Continue reading