Filed under: Bid Protest, Court of Federal Claims, FAR, Federal Acquisition Regulation, GAO, Jurisdiction, OCI, Past Performance, small business, task or delivery order, Timliness Rules | Tags: bid protest, Court of Federal Claims, FAR, GAO, Government Accountability Office, Heather Kilgore Weiner, Michael Golden, Past Performance, task order jurisdiction, timliness
With more contractors fighting over procurements, it is important for companies that conduct business with the federal government, or that are thinking about conducting business with the federal government, to understand the bid protest process. Such an understanding is necessary for businesses that want to be competitive in the federal marketplace. 
Across the board, the volume of bid protests is up, way up. Both the Government Accountability Office (GAO) and the United States Court of Federal Claims have seen huge increases in their protest dockets over the past couple of years. As the Obama Administration moves forward with its goal of cutting wasteful spending on contracts and getting better value for the taxpayer dollar, there is no doubt that this bid protest frenzy will likely continue.
This coming Wednesday, April 25, 2012, Michael R. Golden and Heather Kilgore Weiner, Pepper Hamilton LLP, are presenting a Webinar entitled “Bid Protest Explosion – An Overview of Federal Bid Protests.” Topics will include an overview of the different bid protest forums including agencies, GAO and the Court of Federal Claims, and the pros and cons of each forum, as well as a discussion on how to decide whether to protest or intervene in a protest. In addition, this webinar with discuss common issues related to pre-award and post-award bid protests, the importance of a government debriefing and the implications of the statutory Competition in Contracting Act (CICA) stay of contract performance and temporary restraining orders.
For more information about this Webinar or to sign up, click here.
Additional questions, feel free to contact Michael R. Golden
(202-220-1244) or Heather Kilgore Weiner(202-220-1212)
Filed under: FAPIIS, FAR, FAR 52.209-9, Federal Awardee Performance and Integrity Information System, FOIA, Freedom of Information Act | Tags: •Administrative Agreements, •Defective Pricing Determinations, •Non-responsibility Determinations, •Recipient Not Qualified Determinations, •Terminations for Default, Contractor Fault, contractor performance data, Exemption 1, Exemption 3, FAPIIS, FAR, FAR 52.209-9, Federal Acquisition Regulation, Federal Awardee Performance and Integrity Information System, FOIA, Freedom of Information Act, national defense or foreign policy, on-line clearinghouse, seven calendar days
The Federal Awardee Performance and Integrity Information System (FAPIIS) – the Government’s new on-line clearinghouse for contractor performance data – is already undergoing changes that will require contractors to respond.
As we reported in a previous post, the FAPIIS system creates a clearinghouse for contractor-related data, including past performance evaluations; nonresponsibility determinations; default terminations; criminal, civil, and administrative proceedings in connection with federal contracts; suspensions and debarment information; administrative agreements; and contracts terminated for fault. Contracting officers began to insert the new FAPIIS clause (FAR 52.209–9) into contracts on January 24, 2011, and the system went “live” on April 15, 2011.
However, on January 3, 2012, a final rule was released that fine-tunes the ways in which companies must respond to information the Government posts to FAPIIS. As we reported previously, companies must diligently scrutinize their FAPIIS entries to avoid the inadvertent disclosure of inaccurate or confidential information. Under the new rule, companies will now have seven calendar days in which to review information proposed for public release on FAPIIS and to make a formal objection to the posting.
The types of information that the Government could post to FAPIIS include:
- Terminations for Default
- Non-responsibility Determinations
- Recipient Not Qualified Determinations
- Defective Pricing Determinations
- Administrative Agreements, and
- DoD Determinations of Contractor Fault
Under the new procedure, all information posted by the Government will be subject to a 14-day waiting period before it becomes publicly available on FAPIIS. The Government will provide notice to the contractor when the new information has been put on the FAPIIS system, at which point the contractor will then have 7 calendar days (not working days) to object to the public release. The information will not be available to the public until the end of the 14-day period.
If the contractor objects, it must cite to the FAPIIS FAR reporting clause and request removal of the information. Importantly, the contractor must also explain how the information falls under one of the disclosure exemptions to the Freedom of Information Act (FOIA) that protects the information from public release. Some of the most frequently used FOIA exemptions include:
- The information relates to classified matters of national defense or foreign policy (Exemption 1)
- The information is protected by another law that specifically exempts the information from public release (Exemption 3)
At the end of the day, as we have previously advised, contractors must be proactive in monitoring their past performance and other conduct that may bear upon their responsibility, including all of the information concerning the contractor and its past performance that is contained in any government database or in news articles, or that is obtainable by an Internet search of the contractor. This way, contractors can act immediately to correct any information that may be inaccurate or misleading.
Filed under: Campaign Finance Rule, Federal Elections, PAC, Political Action Committee | Tags: campaign finance, Citizens United, election, federal office, influencing federal elections, PAC, political action committee, political candidate, political party, USAID, Wagner v. Federal Election Commission
Under federal law, government contractors are prohibited from contributing to any candidate, political committee, or political party in connection with an election for federal office. This limitation applies to corporations and individuals who hold federal government contracts.
A work around to this law exits for corporations – that is, corporations may effectively bypass this prohibition by establishing and administering a separate segregated fund for the purpose of influencing federal elections (i.e., a political action committee or “PAC”). However, no such alternative is available for individuals who hold government contracts. This disparity has led to the filing of a suit in the U.S. District Court for the District of Columbia challenging the constitutionality of this campaign finance rule as applied to individuals. (more…)
Filed under: Bid Protest, Federal Acquisition Regulation, GAO, Timliness Rules, Uncategorized | Tags: B-406170, bid protest, CCR, Central Contracting Registry, competitive range, Court of Federal Claims, FAR 15.505(a), GAO, Government Accountability Office, Hawker Beechcraft Defense Company LLC, significant issue, timliness
A recent Government Accountability Office (GAO) bid protest decision illustrates the strict timeliness rules that companies must follow in order to have their protests heard at GAO and the consequences when a company fails to adhere to these rules. In Hawker Beechcraft Defense Company LLC, B-406170, December 22, 2011, the Department of the Air Force (Air Force) excluded Hawker Beechcraft Defense Company’s (Hawker) proposal from the competitive range after conducting discussions with Hawker. According to media sources, this Air Force contract for light air support aircraft is valued at nearly $1 billion.
On November 1, 2010, the Air Force sent Hawker notice of its exclusion from the competition by certified mail to Hawker’s designated point of contact at the address contained in Hawker’s proposal. The certified return receipt showed the signature of the Hawker employee that received the notice by November 4. However, it was not until November 15th that Hawker contacted the contracting officer to request a pre-award debriefing. Hawker advised the contracting officer that the Notice of Exclusion had been received on November 15th. The next day, the contracting officer denied the request for a debriefing as untimely because Hawker had failed to comply with the requirement of Federal Acquisition Regulation (FAR) 15.505(a), which provides that an offeror may request a pre-award debriefing within 3 days after receiving notice of exclusion from the competition on November 4th. On November 23, Hawker protested to GAO its exclusion from the competition. (more…)
Filed under: Bid Protest, FAR 52.215-(c)(3)(i), GAO, Late Proposal Rules, Timliness Rules | Tags: B-405745, bid protest, Contracting Officer, FAR 52.215-(c)(3)(i), Final Proposal Revision, FPR, GAO, Government Accountability Office, late proposal rules, timliness
A recent U.S. Government Accountability Office (GAO) case reminds us of GAO’s strict stance on when a contractor may (or may not) rely on the advice of a Contracting Officer.
In NCI Information Systems, Inc., B-405745, Dec. 14, 2011, the deadline for the submission of Final Proposal Revisions (FPR) was “by close of business on 31 August 2011.” The Contracting Officer advised one of the offerors – Harris IT Services (Harris) – in an email that “[U]ntil 5:00 PM Central Time is acceptable as meeting the close of business deadline.” Relying on the Contracting Officer’s written statement, Harris “timely” submitted its FPR to the Contracting Officer prior to 5PM Central Time on the required date. After evaluation, the Agency determined that Harris’ FPR offered the best value to the Government and selected Harris for award. Subsequently, however, another offeror protested the Agency’s award to Harris claiming that Harris was ineligible for award because it missed the deadline set for receipt of FPRs. GAO agreed that Harris was ineligible for award, and as is discussed below, explained why Harris’ reliance on the Contracting Officer’s written statement was misplaced. (more…)
Filed under: Federal Supply Schedule, GAO, service-disabled veteran-owned small businesses, and Information Technology Act of 2006, Veterans Benefits Act of 2006 | Tags: bid protest, FSS, Government Accountability Office, GAO, set-aside, service-disabled veteran-owned small business, SDVOSB, Kingdomware Technologies, B-405727, Aldevra, B-405271, Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U.S.C. § 8127(d), Federal Supply Schedule, market research
The Government Accountability Office (GAO) recently sustained two bid protests filed by service-disabled veteran-owned small businesses (SDVOSB) on account of the Department of Veterans Affairs’ (VA) failure to determine if the contracts could be set-aside for SDVOSB firms. The cases are Kingdomware Technologies, B-405727 (December 19, 2011) and Aldevra, B-405271, B-405524 (October 11, 2011).
In both cases, GAO found that the VA’s decision not to conduct market research concerning the availability of SDVOSB firms violated a 2006 federal statute that requires VA contracting officers to:
. . . award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.
Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U.S.C. § 8127(d) (2006). (more…)
Filed under: Bid Protest, GAO, OCI, Procurement Integrity, Revolving Door | Tags: B-404833.4, bid protest, former Government employee, GAO, Government Accountability Office, hard facts, Personal Conflicts of Interest, procurement integrity, revolving door, VSE Corporation
A recent GAO protest decision illustrates the challenges for a company, as well as contracting officers, in addressing a company’s hiring of a former Government employee who has some connection with the procurement. Those looking for clear rules and easy answers in this area will be disappointed.
VSE Corporation, B-404833.4, issued by GAO on November 21, 2011, highlights the difficulties in assessing the effect of the hiring of a former Government employee who has had involvement in the procurement. GAO concluded that, notwithstanding the contracting officer’s investigation of the potential personal conflict of interest, the contracting officer’s determination that VSE’s hiring of the former Government employee as a consultant on a procurement with which he had previous involvement was based on assumptions, rather than hard facts, and relied on an incorrect understanding of the statutes and regulations that apply to post-government employment activities. (more…)
