Agency pulls a fast one at GAO … and gets caught

After a protest was filed at the GAO, a procuring agency delayed implementing the mandatory statutory suspension of work, then amended the awardee’s contract to permit the awardee to fully perform before the suspension actually kicked in.
Then the agency got caught.

GAO-GovernmentAccountabilityOffice-SealIn a recent decision, the GAO sustained a protest because the agency had circumvented the GAO’s bid protest process.  But while the agency got busted–a good thing–the penalty it will pay is less than satisfactory.

The GAO’s decision in SCB Solutions, Inc.–Reconsideration, B-410450.2 (Aug. 12, 2015) involved a Dept. of Veterans Affairs (VA) RFQ for personal identity verification cards.  The RFQ was issued via the GSA’s eBuy system to holders of GSA Schedule 70 contracts.  The RFQ stated that award would be made on a lowest-priced, technically-acceptable (LPTA) basis.

VA sealThe RFQ called for the issuance of a single, fixed-price delivery order for 400,000 PIV cards.  The PIV cards were to be provided in five production runs of 80,000 each.  Within 30 days of award, the contractor was to deliver a test run of 100 cards.  After the agency accepted the test run, the contractor was to deliver the remainder of the first production run; delivery of the other production runs would follow.

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GAO faults ‘unreasonable market research’ for failure to set aside contract for SDVOSBs

In an August 20, 2015 ruling, the U.S. Government Accountability Office (GAO) found that the Department of Veterans Affairs (VA) conducted insufficient market research in connection with an acquisition and therefore had no grounds for denying set-aside status to the contract.

VA sealThe VA issued an RFP on April 27, 2015, as a small business set-aside, requesting proposals to provide fire and life safety A/E services for Veterans Integrated Service Network (VISN) 20 region medical centers located in Washington, Oregon, Idaho, and Alaska.

Fire Risk Management, Inc. (FRM), of Bath, Maine, protested the bid based on the VA’s failure to set aside for service-disabled veteran-owned small business (SDVOSB) concerns.  FRM asserted that the VA’s decision not to set aside the acquisition for SDVOSBs was based on unreasonable market research.

In defending its decision, the VA stated its belief that it would not receive proposals from at least two responsible SDVOSB concerns that could meet the requirements in the RFP at a fair market price.  But the GAO disagreed, concluding that the VA’s determination that there was not a reasonable expectation that offers would be received from at least two SDVOSB firms that are capable of performing the required work was not supported by the record.

The GAO found that the VA’s contract record did not support the agency’s determination to limit its market research to firms only within the VISN 20 region.  The GAO took note of the fact that the VA’s contract specialist, in a database search specifically directed by the contracting officer, found more than 127 profiles of SDVOSB concerns nationwide “matching the criteria.”  The GAO concluded that had the agency expanded its market research beyond the VISN 20 region it would have discovered numerous SDVOSB A/E concerns doing fire protection work.

In its decision, the GAO recommend that the VA’s contracting officer conduct a proper market survey in accordance with the agency’s requirements for this procurement to ascertain whether there is a reasonable expectation that at least two or more responsible SDVOSB concerns will submit proposals at fair market prices.   The GAO also recommend that the VA reimburse the FRM for the reasonable costs of filing and pursuing the protest, including reasonable attorneys’ fees.  The protester’s certified claim for costs, detailing the time spent and the costs incurred, must be submitted to the VA within 60 days after receipt of the GAO’s decision.

The text of the GAO’s full decision can be found at:



No protests after $9 billion Pentagon contract

When Leidos and its partners, Cerner and Accenture Federal, secured a monster Pentagon health records contract worth up to $9 billion in late July, eyes turned to losing bidders IBM and Computer Sciences Corp., expecting a bid protest.

pentagon-sealThat hasn’t happened.

Protestors have 10 days after a contract award or debriefing from the awarder to file a bid protest with the Government Accountability Office. That timeline can be extended if parties agree to it during the debriefing, but sources tell Nextgov such an agreement didn’t happen.

Protestors can also file protests directly to the U.S. Court of Federal Claims, even after a protest period. While GAO receives some 2,500 bid protests annually, the Court of Federal Claims only gets around 100 – and about half of those only landed in court after previously being handled by GAO.

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Agency’s discussions only with awardee were improper, says GAO

When a procurement agency opens discussions with one offeror, it must open discussions with all offerors within the competitive range.

GAO-GovernmentAccountabilityOffice-SealIn a recent bid protest decision, the GAO held that a procuring agency conducted improper discussions when it limited discussions to only one offeror.

The GAO’s decision in International Waste Industries, B-411338 (July 7, 2015) involved a solicitation for the delivery of a solid waste incinerator to Joint Base Pearl Harbor Hickham. The solicitation notified offerors that the government planned to procure the incinerator using simplified acquisition procedures.  Award was to be made to the lowest priced, technically acceptable offeror.

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Commercial item provisions in Schedule contracts upheld in bid protest appeal

CGI Federal has prevailed in a bid protest fight it took to the U.S. Court of Appeals, and the court’s ruling has implications beyond a single company.

The Professional Services Council filed an amicus brief supporting CGI because the issue dealt with the need for GSA schedules to follow the same commercial item provisions as any other type of government contract.

This sequence of events that raised the issue began in February 2014 when CGI Federal and HealthDataInsights Inc. filed pre-award protests on a Center for Medicaid and Medicare contract to collect overpayment. Both companies were incumbents when CMS released the solicitation for the new contract.

CGI and HealthDataInsights argued that CMS had changed the solicitation in a way that restricts competition and violates current laws and regulations—specifically that it does not follow the commercial practices laid out in part 12 of the Federal Acquisition Regulation.

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