GAO Bid Protest Attorneys: GAO Bid Protests Lawyer

On August 19, 2019, the GAO denied a protest over the qualifications of the contractor’s proposed key personnel.  ARServices, Limited, B-417561.2 (August 19, 2019)  The RFP stated that key personnel resumes would be evaluated on “whether the individual’s qualifications and experience are relevant to the requirements set forth in the PWS.” The RFP defined an unacceptable rating for the key personnel subfactor as one where the “[p]roposal does not meet [the] requirements of the solicitation, and thus, contains one or more deficiencies, and/or risk of unsuccessful performance is unacceptable.” It further stated that such proposal would be unawardable.

With respect to an applications developer, the RFP state he or she must have “at a minimum: a Bachelors of Arts or Science in [a] business related discipline (logistics, industrial engineering, management, economics, finance, information technology) and at least two years’ recent experience within a [Department of Defense] organization.”  Here, the key personnel did not have this exact experience,  He had a Bachelor of Science degree in marine biology and working on a master’s degree in information systems. That did not cut it.

The GAO upheld the Agency’s rejection of the contractor’s proposal as unacceptable, holding that “[w]here a solicitation states that the qualifications of key personnel will be evaluated, and a proposal fails to demonstrate that key personnel hold qualifications that the solicitation requires them to possess, the proposal may be evaluated as unacceptable. ICI Servs. Corp., B-411812, B-411812.2, Sept., 21, 2015, 2015 CPD ¶ 288 at 5.

Lesson Learned: Make sure your key personnel meet the minimum requirements in the solicitation.  A miss could result in a rejection of your proposal.  Also, even though the Government may have approved a key personnel for a position before, does not meant that the Government will do so in a future solicitation.

ARServices, Limited, B-417561.2 (August 19, 2019)

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On October 5, 2018, the GAO denied a protest challenging the award of a bridge contract related to the Air Force’s Network-Centric Solutions-2 (NETCENTS-2) IDIQ procurement. The Air Force was not satisfied with the incumbent’s performance during the base year and decided not to exercise the option to allow it to continue work. This left the Air Force in a predicament. To continue IT services previously provided by the incumbent, Technica Corporation, until a new contract award could be made, the Air Force issued a sole source “bridge contract” to Leidos Innovation Corporation, a large business. The Air Force justified this sole source procurement based on “urgent circumstances.” The GAO upheld the Air Force’s decision and found that “the agency’s need for the services is of an urgent nature, and that providing a fair opportunity to all NETCENTS-2 vendors would result in unacceptable delays.” This case illustrates the significant discretion an agency has when justifying a sole source procurement based on urgent and compelling circumstances.

Technica Corporation, B-416542 (October 5, 2018)

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The GAO rules on timeliness are like trapdoors.  If your protest is late, the GAO is quick to dismiss it.  A recent GAO case illustrates this. In Exceptional Software Strategies, Inc., B-416232 (July 12, 2018) the protestor  challenged the Government’s decision to exclude it from the competitive range.  Generally, this type of protest must be filed within 10 days after the contractor received notice that it was excluded from the competitive range.  However, there is an exception to this rule. Specifically, if a debriefing is required, the contractor can file a GAO protest within 10 days after the debriefing occurred. In the Exceptional Software case, the protestor filed a protest within 10 days after the debriefing.  The GAO still found that the protest was untimely, however.

The GAO held that even though the Government gave a debriefing it was not a “required” one because the contractor did not request the debriefing within 3 business days after being notified that it was excluded from the competitive range. This is where it gets tricky. The contractor filed its request for a debriefing on the third business day at 4:59 pm.  One would think that is timely. But no, the GAO cited Federal Acquisition Regulation § 33.101, which defines “filed” as “unless otherwise stated, the agency close of business is presumed to be 4:30 p.m., local time.” The GAO found that nothing in the solicitation, or elsewhere in the record, designates the business hours of NSA, and as such, the 4:30 pm deadline applied to the request for a debriefing.  And because the debriefing request was late, it was not a “required” one.  This meant the contractor did not have extra time to protest and had to do so within 10 days after it was excluded from the competitive range.

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On April 25, 2017, the Court of Federal Claims released a decision in Gallup, Inc. v. The United States, No. 16-1656C, which sanctioned the United States Special Operations Command (“Government”) for providing a key document in the administrative record that was backdated.  The document contained a market analysis to justify setting aside the procurement for small businesses.  The Government indicated that this document was created before the solicitation was issued for public bid.  The Contracting Officer also provided a “Certification of Contracting Office” affirming that “after careful review, the following documents constitute the record of administrative actions.”

It turned out that the Market Analysis was created after the protest was filed, but backdated to cover this up.  The Contracting Officer admitted this was a “huge mistake” to the Court:

[W]hen I received the pre-filing notice about December 13th, I said, uh-oh, if [Gallup] really file[s], I need to make sure my record [is] in good shape. […] I realized I had the [chart] with nothing that consolidated that or nothing that summarized that and I prepared the [Memorandum for Record] at that time, sir. I now know that [] was a huge mistake and I am deeply sorry that this has come to this. . . . [T]he timing was wrong.

The Court sanctioned the Government for providing a inaccurate and misleading document in the administrative record.  The Government did not oppose the appropriateness of sanctions and told the Court it will take action to prevent this from happening again, promising to “issue guidance to its contracting office emphasizing the importance of completeness, accuracy, and integrity of preparing records and accompanying certifications.”

The Contracting Officer certainly learned her lesson here.

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The GAO dismissed a protest as untimely because the Protestor failed to file comments to the Agency Report within 10 days. Although the Protestor emailed his comments to the GAO lawyer handling the case within 10 days, the GAO held that this did not count. The GAO indicated that the Protestor should have filed its comments at protests@gao.gov pursuant to Rule 21.0(f).

This is a harsh result, in my opinion.  After all, the GAO lawyer received the comments on time.  The lesson learned here is to email your protest comments to protests@gao.gov and the GAO attorney handling the case.

GLF Consulting, B-412316.3 (December 21, 2016)

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For a brief period of time this year, the GAO lost jurisdiction to hear protests over civilian task and delivery orders above $10M. This left contractors with no remedy to challenge the manner in which the Government evaluated proposals for award of civilian task or delivery orders. Thankfully, this jurisdiction has been restored by the 2017 National Defense Authorization Act.  On the other hand, the Act increases the jurisdictional threshold for non-civilian task orders from $10M to $25M, which will narrow the GAO’s jurisdiction involving task/delivery orders for military procurements.

2017 National Defense Authorization Act

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In  Red River Waste Solutions, LP, B-411760.2 (January 20, 2016), the GAO upheld Red River’s protest that waste management solicitation pricing evaluation should not be priced on a “per ton” basis because it was unclear whether this is in line with “customary commercial practices.”

FAR requires that contracts for the acquisition of commercial items “shall, to the maximum extent practicable, include only those clauses . . . determined to be consistent with customary commercial practice.” FAR § 12.301(a)(2). In establishing acquisitions for commercial items, FAR § 10.002(b) requires market research by the acquiring agency to address, among other things, customary practices regarding the provision of the commercial items.  Consistent with this approach, FAR § 12.302(c) bars the tailoring of solicitations for commercial items in a manner inconsistent with customary commercial practice unless a waiver is approved in accordance with agency procedures. Verizon Wireless, B-406854, B-406854.2, Sept. 17, 2012, 2012 CPD ¶ 260 at 5-6.  .  .  .

The GAO rejected the agency’s market research in the Red River Waste Solutions because:

• Fort Polk’s review of other Army refuse contracts was irrelevant because Government Contracts do not reflect customary commercial practices;
• In response to a Sources Sought Notice published on the Federal Business Opportunities website, four of seven responses suggested the CLIN structure be monthly, and three (3) respondents had no comments to tonnage-based pricing; and
• Fort Polk did not document its contact with an upstate New York refuse company representative, or the basis for his opinion that tonnage-based pricing was suitable.

In view of these defects, GAO accepted protester’s argument that such contracts are not generally priced on a per-ton basis because costs are driven by the number, frequency, and distance between stops, not by the amount, or weight, of refuse collected during such stops. Accordingly, GAO required the agency to (1) conduct adequately documented market research regarding per-ton pricing in commercial refuse contracts; (2) obtain a properly executed waiver of the FAR requirements; or (3) revise the solicitation to eliminate per-ton pricing.

Red River Waste Solutions, LP, B-411760.2 (January 20, 2016)

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In Glen Mar Construction, Inc., B-410603 (January 14, 2015), the GAO sustained a bid protest challenging the VA’s evaluation of pricing in a solicitation for construction of a primary care building at the VA Medical Center in Vancouver, Washington. The solicitation was based on FAR Part 14, with award to the lowest priced offer.

Bidders were required to provide pricing for the base construction project and nine optional line items that the VA might select at the time of award, or within 120 days of award. The VA made award based on pricing of the base contract work and all nine optional items. The GAO held that this was improper because the VA knew with reasonable certainty that it lacked sufficient funds to purchase all of the optional items.

The VA maintained that the following provision allowed it to evaluate the base bid and all options when performing a price evaluation:

Except when it is determined in accordance with FAR § 17.206(b) not to be in the Government’s best interests, the Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. Evaluation of options will not obligate the Government to exercise the option(s).

(FAR 52.217-5)

The GAO held that the VA did not have unbridled discretion to make award based on the base bid and optional items. The GAO noted that FAR explains that, “[a]n example of a circumstance that may support a determination not to evaluate offers for option quantities is when there is reasonable certainty that funds will be unavailable to permit exercise of the option.”
FAR § 17.206(b).

The GAO held that “where an agency includes FAR clause 52.217-5 in a solicitation, it should not base its price evaluation on options that the agency knows with reasonable certainty it will not exercise.”  Here, the VA acknowledged during the protest that it did not have sufficient funding to pay for all of the option items.  The GAO therefore sustained the protest.

Glen Mar Construction, Inc., B-410603 (January 14, 2015)

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The anecdotal evidence is everywhere; people believe that government agencies are bundling requirements into large contracts and IDIQs in a way that hurts small businesses. Indeed the proposed Contracting Data and Bundling Accountability Act of 2014 attempts to address this concern. And the SBA seems to agree. In fact, SBA has weighed in against GSA’s bundling of requirements in the protests against GSA’s controversial “OS3” office supplies procurement.   (B-409528)

The jurisdictional question and the technical definitions are important here. SBA watches over small business interests, and even has a hotline to report impermissible bundling, but, for the most part, GAO decides protests based on impermissible bundling.

The Small Business Act, defines “Bundling” to mean “consolidating 2 or more procurement requirements for goods or services previously provided or performed under separate smaller contracts into a solicitation of offers for a single contract that is likely to be unsuitable for award to a small-business concern.” See 15 U.S.C. § 632(o)(2). It requires agencies to “avoid unnecessary and unjustified bundling of contract requirements that preclude small business participation in procurements as prime contractors.” 15 U.S.C. § 631(j)(3) (2013).

Agencies are allowed to ‘bundle” and exclude small businesses participation, but they must justify doing so, with market research to determine that bundling was necessary and justified. FAR 7.107(a); 13 C.F.R. 125.2(d)(3). In the OS3 Procurement, GSA performed a bundling analysis which justified full and open competition by mitigating strategies which provide for limited awards to small businesses. SBA finds fault with the justification because it does not examine the negative impact on small businesses necessarily excluded by the acquisition strategy as required by 15 U.S.C. § 657q(c)(l).

GAO’s recent history with bundling cases is interesting. Over the last decade, GAO has sustained a few bundling cases (e.g., TRS Research, B-290644 (2002); Sigmatech, Inc., File: B-296401 (2005)), and rejected many. (See, Star Food Service, Inc. B-408535 (2013); CYIOS, Inc. B-402728.3 (2012); BlueStar Energy Solutions, B-405690 (2011); Nautical Engineering, Inc., B-309955 (2007); MFVega & Associates, LLC, B-291605.3 (2003); 2B Brokers et al., B-298651 (2006); AirTrak Travel et al., B-292101; B-292101.2; B-292101.3; B-292101.4; B-292101.5 (2003)). GAO’s treatment in these cases generally relies on the agency’s bundling analysis, with GAO accepting the agency’s analysis, or finding against the agency where it has failed to conduct one at all.

In the OS3 procurement, GSA conducted an extensive bundling analysis, but SBA has weighed in against it. We’ll be watching for GAO’s decision, and keep you posted.

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