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.
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: and Information Technology Act of 2006, Federal Supply Schedule, GAO, service-disabled veteran-owned small businesses, Veterans Benefits Act of 2006 | Tags: 38 U.S.C. § 8127(d), Aldevra, and Information Technology Act of 2006, B-405271, B-405727, bid protest, Federal Supply Schedule, FSS, GAO, Government Accountability Office, Health Care, Kingdomware Technologies, market research, SDVOSB, service-disabled veteran-owned small business, set-aside, Veterans Benefits
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.
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…)
Filed under: 8(a) Program, Bid Protest, CAGE code, DUNS number, FAR, Federal Acquisition Regulation, GAO | Tags: ambiguity, B-259686.2, B-271662, bid protest, CAGE code, Dick Enterprises, DUNS number, FAR 2.101, FAR 4.605(b), GAO, Government Accountability Office, Inc., Trandes Corp.
If you bid or propose on a Government contract, it is important not to create any ambiguity concerning your identity. The bidding rules are clear on this point — uncertainty as to the identity of an offering entity renders an offer technically unacceptable, since the ambiguity as to an offeror’s identity could result in there being no party bound to perform the obligations of the contract. See Dick Enterprises, Inc., B-259686.2, June 21, 1995, 95-1 CPD ¶ 286 at 2. The information readily available, such as records for incorporation and DUNS numbers, must reasonably establish that the differently-identified entities are in fact the same concern. See Trandes Corp., B-271662, Aug. 2, 1996, 96-2 CPD ¶ 57 at 2 . Moreover, as a general matter, the entity awarded the contract should be the entity that submitted the initial proposal. A recent GAO case reemphasizes the importance of this point.
Filed under: Code of Business Ethics and Conduct, Compliance, Department of Defense, DFARS, GAO | Tags: 2011, B-404833.4, certify, compliance, Corp., Defense Federal Acquisition Regulation Supplement, Department of Defense, DFARS, DFARS part 252.203-7005, DoD, ethics and conduct, November 18, revolving door, VSE
The Department of Defense (DoD) has finalized a new rule that requires defense contractors to certify compliance with the federal “revolving door” rules that restrict former DoD employees’ activities after they enter the private sector. Although contractors are already expected to ensure compliance with these laws and regulations under the existing contractor “business ethics and conduct” requirements, the new rule’s certification requirement introduces potentially severe consequences for failing to comply, and essentially shifts the responsibility to the contractor to ensure that its employees are abiding by the post-employment restrictions. The rule is implemented at Defense Federal Acquisition Regulation Supplement (DFARS) part 252.203-7005. (more…)
Filed under: Bid Protest, Corrective Action, eTouch, GAO, Other than Small, SBA, size standard, small business, Small Business Administration | Tags: B-404894.3, bid protest, corrective action, eTouch, GAO, Government Accountability Office, other than small, SBA, size protest, size status, Small Business Administration
A recent decision of the Government Accountability Office (GAO) reiterates an old lesson: if your company self-certifies as a small business, you should be sure of it. After all, if a contractor is found to be “other than small” it may not be given a second chance to qualify as “small,” even if the mistake is inadvertent.
In eTouch Federal Systems, LLC, contractors were invited to bid on a $320M IRS web design contract, which included a small business subfactor. B-404894.3, August 15, 2011. If the offeror classified itself as a small business, it was exempt from this requirement. In the alternative, offerors were evaluated as “unacceptable” if they did not qualify as “small” or offer a small business subcontracting plan in their proposal. eTouch – in the “good faith,” yet mistaken belief that it qualified as a small business – did not submit a small business subcontracting plan with its proposal. After eTouch was awarded the contract, a competitor filed a size protest with the Small Business Administration (SBA) challenging eTouch’s size status. (more…)
Filed under: Bid Protest, Court of Federal Claims, Executive Order, GAO | Tags: 901 North Fifth Street, B-404997, B-404997.2, bid protest, Executive Order 12072, GAO, Government Accountability Office, LLC, U.S. Court of Federal Claims
In a recent bid protest decision, the Government Accountability Office (GAO) declined to review the General Services Administration’s (GSA) compliance with an executive order that the protester argued prohibited GSA from awarding the contract. Although GAO routinely reviews the implementation of various procurement-related executive orders (for example, policies related to wage determinations, utilization of small business, and labor rights clauses), this case represents the GAO’s first clear statement regarding the general application of executive policies in bid protest proceedings. What impact will this have on protestors? (more…)