corrective action | The Contracting Education Academy

February 25, 2020 By cs

Contractor successfully uses GAO pre-award protest to modify solicitation

When the terms of a solicitation run contrary to the regulations, challenging the solicitation in a pre-award protest may provide contractors the chance to shift the tide in their favor before bids are submitted and an award is made.

In January 2020, the Government Accountability Office (GAO) sustained a pre-award bid protest brought by Noble Supply & Logistics, Inc. that challenged the terms of a General Services Administration (GSA) solicitation. Noble Supply & Logistics, Inc., B-418141, 2020 WL 289546 (Jan. 16, 2020). Noble Supply argued the RFQ’s price evaluation methodology, as written, failed to provide for an evaluation of which offeror presented the best value and the lowest overall cost alternative, in violation of FAR part 8.

In the RFQ, GSA asked holders of GSA 51V Hardware Superstore Federal Supply Schedule (FSS) contracts to bid on four blanket purchase agreements (BPAs) to provide hardware products and services to four military branches. For its price evaluation factor, the RFQ stated that GSA would evaluate price quotations “to ensure that offered pricing, to include flat rates and tiered volume discounts, is fair and reasonable.” The RFQ then stated that GSA would not evaluate whether the award was the “lowest-priced technically acceptable” (LPTA), nor would it conduct a “best value tradeoff source selection methodology.” Thus, GSA would only evaluate the quotes for price reasonableness to determine whether prices were unreasonably high.

Noble Supply argued that this price methodology was contrary to 41 U.S.C. sections 152, 8.404(d) and 8.405-3(a), which require GSA to award BPAs to the awardee that provides the “best value and results in the lowest overall cost alternative.” GAO agreed, explaining that “consideration of the lowest cost is an imperative when using the FSS” and therefore GSA is required to “reach a determination regarding which FSS vendor meets the agency’s needs at the lowest overall cost.” Noble Supply & Logistics, Inc., B-418141, 2020 WL 289546, at *6 (Jan. 16, 2020).

Keep reading this article at: http://www.mondaq.com/Article/891604

June 19, 2019 By AMK

GSA out of compliance on improper payments, watchdog finds

Financial controls designed to minimize agency payments to undeserving parties are not being fully followed by the government’s landlord, the General Services Administration, according to a watchdog report released on Friday.

GSA in fiscal 2018 failed to comply with two of six requirements in the amended Improper Payments Act, said the agency’s inspector general. Specifically, the agency “did not publish an accurate improper payment estimate in its Fiscal Year 2018 Agency Financial Report and … [did not] publish accurate and complete improper payments data in its Fiscal Year 2018 Agency Financial Report,” said the report by the team under IG Carol Fortine Ochoa. “GSA’s risk assessment process is flawed and its procedures for the Do Not Pay initiative contain significant deficiencies and are ineffective.”

Federal law requires agencies with programs susceptible to significant improper payments to estimate and report on them annually to the Office of Management and Budget, in addition to implementing corrective actions. But if a program’s estimated and reported improper payments are below the statutory thresholds for a minimum of two consecutive years, the agency may request relief from the annual reporting requirements.

The IG reviewed GSA’s improper payments in rental of space and purchase cards in fiscal 2017 and 2018, having found $109 million in total improper payments in 2017, and then $16.7 million in 2018 in the rental of space program only. The new report’s review covered August 2018 through February 2019.

Keep reading article at: https://www.govexec.com/management/2019/06/gsa-out-compliance-improper-payments-watchdog-finds/157447

October 20, 2017 By AMK

Does agency’s ‘corrective action’ have any limits?

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.

When the Army sought proposals for a series of IDIQ contracts covering desktop computer computers, notebooks, tablets, printers, and beyond, offerors were to be assessed based on three factors. Those three factors were past performance, technical acceptability, and price. Offerors were required to demonstrate technical acceptability, the primary evaluative criteria, by filling out spreadsheet forms in the RFP.

The Call for Corrective Action

With 58 offerors competing, you would expect many proposals would be deemed acceptable, and that price would then become the primary determinative factor. But out of all the proposals submitted, only 9 were deemed technically acceptable, and all 9 contractors with technically acceptable proposals were given contract awards. It’s no surprise that 21 disappointed offerors filed protests at GAO. The protestors felt that they had technically acceptable items, but were thwarted by confusing aspects of the required spreadsheets, and had made honest mistakes in filling them out. Those who had guessed correctly how to tackle the ambiguous spreadsheets were rewarded, and those who’d guessed incorrectly lost out.

Keep reading this article at: https://petrillopowell.wordpress.com/2017/09/26/does-an-agencys-corrective-action-have-any-limits/

March 18, 2016 By AMK

GAO further clarifies its rule on differing technical re-revaluations

It is not surprising that after four protests of the same task order, three corrective actions by the agency, and four evaluations of technical proposals, the final evaluation ratings may differ from prior evaluations.

Such variations are not necessarily improper as the GAO made clear in a recent protest.

On January 29, 2016, the GAO released a decision denying a protest filed by MILVETS Systems Technology, Inc., B-409051.7; B-409051.9. The procurement history at issue in MILVETS was complicated, beginning with the release of the solicitation by the Department of Agriculture (“USDA”) in July 2013. In sum, two consecutive awards were made to MILVETS and each was protested, causing the USDA to take corrective action twice by reevaluating technical proposals.

After the second award to MILVETS was protested, the USDA assembled a new technical evaluation panel (“TEP”) and source selection authority (“SSA”) that had no knowledge of the first two evaluations. The new TEP reevaluated quotations and the new SSA awarded a task order to DKW Communications, Inc. MILVETS protested the third award, causing the USDA to take yet another round of corrective action by amending the solicitation and seeking revised quotations.

Keep reading this article at: http://govcon.mofo.com/protests-litigation/gao-clarifies-rule-on-differing-technical-reevaluations/

December 4, 2014 By AMK

GAO report reveals bid protests continue to increase

The U.S. Government Accountability Office (GAO) has released its annual report on bid protests filed during the year and their disposition. The latest report (B-158766, dated November 18, 2014) covers FY 2014.

The report reveals that the number of bid protests continue to be on the upswing while the number of protests ruled to have merit is declining. In addition, the overall “effectiveness rate” (i.e., where the agency involved grants some type of remedy or corrective action in response to the protest) remains flat.

Statistical details derived from the recent GAO report, compared to reports from the previous four years, can be seen in the chart below.

The number of cases filed in FY 2014 – 2,445 bid protests, 50 cost claims, and 66 requests for reconsideration – were up by 5% compared to FY 2013. Of the total cases filed, only 556 were decided on their merits, and only 72 (or 13%) were sustained.

The most prevalent reasons for sustaining protests were: failure to follow evaluation criteria, flawed selection decisions, unreasonable technical evaluations, and unequal treatment.

Alternative dispute resolution (ADR) was used in only 96 cases.

The GAO report reveals that while protesters faced a decreased likelihood of success on the merits in a final decision from the GAO, agencies appeared to be slightly more inclined to take corrective action than in years past. In the end, nearly half of all protesters were afforded some type of relief.

What these data do not specifically address is that the majority of protests do not reach a decision on the merits due to voluntary corrective action. Corrective action is commonly taken voluntarily by agencies because of flaws in evaluating bids and proposals. This has implications for both potential protestors and agencies in post-award debriefings.

A copy of the GAO’s latest bid protest report can be downloaded here: GAO Bid Protest Annual Report to Congress – FY 2014

When the terms of a solicitation run contrary to the regulations, challenging the solicitation in a pre-award protest may provide contractors the chance to shift the tide in their favor before bids are submitted and an award is made.

Financial controls designed to minimize agency payments to undeserving parties are not being fully followed by the government’s landlord, the General Services Administration, according to a watchdog report released on Friday.

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.

The Call for Corrective Action

It is not surprising that after four protests of the same task order, three corrective actions by the agency, and four evaluations of technical proposals, the final evaluation ratings may differ from prior evaluations.

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