In the case of Veterans Technology, LLC and MDW Associates, LLC (MDW), small business size status was endangered by a high level of subcontracting with a small business. The SBA’s Office of Hearings and Appeals (“OHA”) applied a rule of thumb to disqualify an awardee as a small business. The Court of Federal Claims (COFC) intervened and reversed the determination. This case illustrates two important issues: (1) Size determinations are subject to SBA rules, and sometimes principles not in those rules that are adopted by SBA’s OHA. (2) If an adverse size determination leads to loss of a contract award, the COFC can review the decision, and if warranted, overturn it. Continue reading “Think You’re A Small Business? Maybe Not. Watch Out for Hidden SBA Rules.”
After the proposal due date, the rule is that late changes or revisions are not accepted, with certain narrow exceptions spelled out in regulation. However, GAO has carved out its own exception when key personnel become unavailable. Such was the case when the YWCA of Greater Los Angeles protested a recent Labor Department award. GAO held that after proposal submission, an agency cannot accept a replacement for a key person who becomes unavailable without opening discussions with all offerors in the competitive range. The case highlights some of issues that arise for offerors when personnel changes occur after proposals are submitted. Continue reading “What Happens When There Are Changes to an Offer After the Submission Deadline?”
In two recent cases, disappointed contractors protested when agencies failed to request clarifications or open discussions. Both Defense Base Services and Level 3 argued that the issues with their proposals could have been remedied if given the chance. GAO denied both offerors’ protests. Yet when Level 3 persisted at the COFC, the judge concluded that an agency’s failure to request clarifications constituted an abuse of discretion. The cases illustrate the difference in the way GAO and the COFC view clarifications and discussions, and shed insight for offerors under similar circumstances.
In a recent case, the Army got dinged in the Court of Federal Claims (COFC) despite – indeed, because of – the agency’s efforts to correct a problematic procurement. 58 offerors bid for the Army’s recompete of its Army Desktop Mobile and Computing contract vehicle, but only 9 proposals were deemed technically acceptable. When 21 of the disqualified bidders protested, the Army took “corrective action.” It reopened the competition, allowing all offerors to submit revised proposals and new prices. But the COFC found that the proposed corrective measure was overbroad. The court’s ruling demonstrates that agencies need to tailor corrective action to procurement’s unique problems.
Sometimes the Government seeks the best overall value, and at times simply lowest cost. But even when low price is determinative, the bidder must still meet minimum technical qualifications. In a recent case, Level 3 Communications lost a major contract with the Dept. of Defense to Verizon, whose bid exceeded theirs by nearly $40 million. Level 3 was disqualified for what it thought were trivial reasons. When Level 3 protested, it got no relief from GAO, but the Court of Federal Claims came to their rescue.
Contracts with the Federal Government represent big bucks for technology companies. According to ITDashboard.gov, government agencies spent a whopping $82.8 billion on information technology investments in FY2016, a number that’s poised to grow in the next two years. It’s no wonder, then, that technology companies take government contracts seriously. So when tech giant Palantir Technologies could not get the Army to consider its commercial IT system, they protested. And ultimately, the Court of Federal Claims decided in their favor.
For losing contractors, the question of whether to protest is a tricky one. Contractors often move to protest when the requirements seem to favor one competitor over another, or when the rules of the procurement are unclear. But there’s an important difference between an agency displaying an abuse of discretion and simply utilizing the flexibility written into the Federal Acquisition Regulation (FAR). Two recent cases shed light on where that distinction may lie.