GAO: Solicitation Cannot Require a Protégé Have the Same Experience as its Mentor

SBA regulations prohibit agencies from requiring the same past performance record from both mentor and protégé entities.  The regulations explicitly prohibit this type of requirement.

In a recent GAO decision, it sustained the protest where an agency required all members in a joint venture to submit the same past experience examples in their proposal.

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Past Performance Isn’t Always a Required Evaluation Factor, Says GAO

For companies trying to break into the government market for the first time, past performance can seem a bit like the old chicken-and-egg conundrum. Sometimes it can appear like a company can’t win a government contract without a strong record of past performance–but can’t build a past performance record without contracts! And with the government’s continued movement away from lowest-price, technically acceptable evaluations, past performance seems increasingly important.

But that doesn’t mean the government always has to consider past performance as an evaluation factor. Instead, as a recent GAO bid protest decision confirms, procuring agencies have broad discretion to omit past performance in appropriate cases.

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GAO Finds Agency’s Technical Evaluation Inadequate, but Refuses to Invalidate Award

Leasing office space in a flood plain seems like a bad idea. Most people want an office with a view, but not a view of their office desk floating down a first-floor hallway. In a recent protest decision, GAO said that the agency failed to adequately document its evaluation, despite its own solicitation requirements.

But even when your protest is sustained, GAO may still recommend the award remain in place. How can that be? Follow along, while I lead you through what you need to know.  

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GAO Concludes Expired SAM Registration in Invitation for Bid Cannot be Rejected as Nonresponsive

A company that is nonresponsive to an Invitation for Bid (IFB), or any solicitation for that matter, will usually be rejected for consideration for award. All too often, when a nonresponsive finding is made, there is no coming back.

A recent decision from GAO shines light on what it means to be “nonresponsive” and “not responsible.” GAO confirmed that SAM registration submitting annual certifications are matters of responsibility, not responsiveness.

What is the difference? Let’s look at the two terms and their practical effect on a company’s ability to cure deficiencies.

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Agency Reasonably Accepted Awardee’s 91% Price Premium, GAO Says

When it comes to “best value” evaluations, agencies ordinarily have broad discretion to accept higher-rated, higher-priced proposals.

How broad is that discretion? Well, in one recent case, the GAO held that an agency reasonably accepted the awardee’s higher-rated proposal, despite a whopping 91% price premium.

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Limitations on Subcontracting: Compliance Presumed Unless Proposal Clearly Shows Otherwise

America’s criminal justice system is founded on the principle that a defendant is innocent until proven guilty. And when it comes to compliance with the limitations on subcontracting, a similar principle applies.

In a recent bid protest decision, the GAO confirmed that a small business’s proposal does not need to affirmatively demonstrate compliance with the “LoS.” Instead, compliance is presumed, unless the proposal “on its face” should lead the procuring agency to conclude that the small business will not comply.

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Solicitation Ambiguities: Speak Now, or Forever Hold Your Peace

When a federal solicitation is vague, ambiguous or internally contradictory, it is common for offerors to hold their tongues. Instead of challenging the solicitation’s defects before proposals are due, many offerors decide to submit proposals and “see how it plays out.” Later, if the award goes to a competitor, these offerors may try to protest the solicitation’s defects.

It’s unsurprising that offerors can be reticent to rock the boat before an award is made. But a recent GAO bid protest decision demonstrates, complaining about the ground rules after award rarely works.

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