While the federal government uses wage determinations for many occupations that contractors must abide by, things are different with professional occupations such as physicians, accountants, engineers, and (yours truly) attorneys. Contractors generally have more leeway with regard to how they pay their professional employees on a given contract. But it’s not unlimited. This is something that the National Oceanic and Atmospheric Administration (NOAA) didn’t address in its evaluation for a procurement, resulting in a successful GAO protest. In this post, we’ll look at the rules here and what went wrong.
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Some Assembly Required: GAO Addresses How Agencies Should Approach Trade Agreements Act Compliance
The Trade Agreements Act (TAA) (along with its cousin, the Buy American Act) is one of the more complex acts to deal with in federal government contracting. We have taken a look at the TAA before, noting that it does not apply to small business set-asides and discussing how it applies in its related FAR clause, FAR 52.225-5. One of the key requirements under the TAA, as shown in FAR 52.225-5, is that the product has been “substantially transformed…into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed” in one of the qualifying countries: the United States, various “qualifying countries”, and “designated countries”. (These countries are ones that the US has a trade agreement with, hence the law’s name) Of course, when agencies receive offers, they generally can’t go visit the assembly sites. This raises the question: When can an agency rely on a contractor’s offer and when must it do a little more digging?
Continue readingGAO Protest Sustain: Flawed Price Realism Analysis
We often see price realism in protests when the protester is making the claim that the awardee’s price, which was lower than the protester’s price, is low enough that the awardee would not be able to perform the work as solicited. Most often, GAO will determine that the agency’s price realism analysis was acceptable. However, in Criterion Corporation, B-422309 (Apr 16, 2024), the agency determined that the lowest priced offeror’s price was too low, and that the company could not possibly perform at the price offered. This led to the next lowest priced offeror receiving the award, and the lowest priced offeror protesting that decision, ultimately winning its argument.
Continue readingGAO: Each JV Partner’s Experience Must Be Considered
A common path for many federal contractors to bid on and perform a federal contract is through a joint venture (“JV”). Utilizing a JV can provide some great opportunities for two (or sometimes more) businesses to share resources and boost each others’ performance on a contract. Additionally, it can be a great tool for contractors to utilize both JV partners’ experience and to jointly gain more experience. There are even widespread SBA regulations requiring agencies to “consider” both JV partners’ experience in an evaluation. However, there has still been quite a bit of back and forth regarding how agencies are supposed to evaluate a JV’s experience, and specifically what it means to “consider” each JV partners’ individual experience, particularly in situations where only one JV partner submits the experience. In May of 2023, GAO issued a decision that provided at least some clarification on how an agency should consider each JV partner’s experience, and the impact of not doing so.
Continue readingBack to Basics: GAO’s Protest Timeliness Rules
Here in Kansas, it is certainly starting to feel like thunderstorm season–and one of my favorite seasons, I might add. But over in D.C., some may say it is starting to feel like protest season! That said, anyone familiar with the protest process at D.C.’s Government Accountability Office (GAO) is probably also quite familiar with the strict timeliness rules GAO applies to such protests. And frankly, even for the seasoned GAO protesters, a refresher on the timeliness rules can be quite beneficial–especially given the answer to when a certain type of protest is due is not always an easy calculation. So, let’s take it back to the basics and run through some of those rules here.
Continue readingGAO: Agency Can’t Combine Evaluation Factors After the Fact
Typically, agencies will provide a handful of evaluation factors, sometime more, in a solicitation. Common evaluation factors are technical, past performance, and cost. A recent protest decision looked at a solicitation that contained separate factors for 1) offeror’s technical capability and 2) staffing and management approach. The question was, can an agency combine its evaluation for two different factors? If it does mix the two evaluation criteria, is that enough to sustain a protest?
Continue readingBuy American? Agencies Must Carefully Document Market Research for Domestic Preference Compliance, says GAO
A recent GAO case on protest costs looked at whether costs were reimbursable centered around whether a Buy American Act waiver was properly applied in the procurement process. As you likely know, the Buy American Act is something many contractors (especially supply and construction contractors) must deal with in their contracting process, and getting a waiver or an exception often may be critical to a proposal. This case arose from a protest seeking costs, but it is still a great opportunity for contractors to better understand the limits of a waiver or exception of the Buy American Act and GAO’s expectations surrounding such an action.
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