GAO: Non-Procurement Regulations No Grounds for Protest

The grounds for GAO protests are numerous, ranging from vague terms in a solicitation to showing that an awardee’s proposal lacked needed information. However, they are not unlimited. One protester argued that the terms of a solicitation were inconsistent with regulations concerning mortgage insurance. Unfortunately for them, that isn’t something GAO will consider.

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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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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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Contractor’s Creative Staffing Proposal Leads to Elimination from Competition

In the competitive federal marketplace, businesses are always looking for ways to make their proposals more competitive. With millions of dollars at stake, it is no surprise that some competitors develop clever approaches to give their proposal a competitive edge.

As one competitor recently discovered, however, there is a point where an offer can get too clever, which may result in proposal elimination. Especially when an agency views the clever approach as violating a solicitation staffing requirement.

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It’s Not Up to Agency to Clarify Layout and Printing Errors in Proposals, Says GAO

It is well understood that offerors must submit proposals that meet the procuring agency’s requirements, including any page limitations set by the solicitation. But what if an offeror’s proposal contains an obvious layout and printing error that inadvertently puts required information outside the established page limits? Does the agency have a duty to seek clarifications or allow corrections?

GAO says no.

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Agency Should Have Investigated Proposal Contradictions, Says GAO

Preparing a proposal for a federal procurement is an involved process. On top of the extensive drafting and estimating work, proposals often require supporting documentation like licenses or certifications. But what happens when a proposal and its supporting documentation contradict one another?

As one contractor learned the hard way, this contradiction can have disastrous consequences.

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GAO: Proposal Strengths Must be Based on Solicitation Criteria, Not Merely Benefit to Government

Agencies often find unanticipated, innovative content in offerors’ proposals. And unsurprisingly, those proposals are often the ones selected for award. But a recent GAO decision reminds us that all strengths an agency assigns must be supported by the stated evaluation criteria.

In other words, the solicitation must thoroughly inform offerors of these evaluation criteria, and the agency must equally evaluate offerors under them. An offeror’s proposal should not get extra credit for proposing things that are not anticipated by or logically encompassed in the solicitation.

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