Tag Archives: GAO bid protests

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

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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

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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

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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

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

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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.

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GAO Annual Bid Protest Report Shows 51% Effectiveness Rate

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In 2020, the GAO Bid Protest effectiveness rate crossed the 50% threshold, higher than we’ve seen it in any recent year.  Overall, cases filed went down a mere 2% year over year.

GAO issues its yearly report as a requirement under statute. Congress is particularly concerned with knowing 1) which federal agencies didn’t follow GAO’s recommendations in bid protests and 2) if GAO did not issue a decision in 100 days. As like most years, GAO was “pleased” to report that all agencies followed its recommendations, when given, and that it timely (within 100 days) decided all bid protests.

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SBIR Program: Agencies Have Broad Discretion Over Phase III Awards, GAO Confirms

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A federal agency has broad discretion to make a sole source award under Phase III of the Small Business Innovation Research program.

In a recent bid protest decision, the GAO confirmed that an agency may make a Phase III award when the contract “derives from, extends, or completes efforts made under prior funding agreements under the SBIR program.” What’s more, an agency has “relatively limited requirements to justify a phase III award,” and considerable discretion when it comes to determining whether a new contract fits this definition.

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