GAO | The Contracting Education Academy

October 17, 2018 By cs

Pragmatism wins the day in GAO Buy American protest

Last month, the Government Accountability Office (GAO) issued a bid protest decision regarding the application of Buy American Act (BAA) requirements to a solicitation for construction. In this decision, GAO rejected the agency’s determination that an offeror’s bid was nonresponsive because the offeror failed to provide certain required information for the evaluation of a potential BAA exception.

A summary of the decision and our takeaways are below.

Passed in 1933 during the Great Depression, the BAA was designed to support United States labor and manufacturing by establishing certain federal government procurement requirements related to the purchase of domestic supplies and the incorporation of domestic materials into construction projects in the United States.

With respect to construction projects, FAR subpart 25.2 requires contractors to incorporate “domestic construction materials,” unless the contracting officer determines that an exception applies or the requirements are otherwise waived by the Trade Agreements Act (TAA), as implemented in FAR subpart 25.4.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/10/pragmatism-wins-day-gao-buy-american-protest/

October 16, 2018 By cs

GAO sharpening its blade on OTA review

The Government Accountability Office’s (GAO) recent decision in Blade Strategies, LLC, B-416752, 2018 WL 4584111 (Comp. Gen. Sept. 24, 2018), clarifies the GAO’s jurisdiction and standard of review for protests of other transaction agreements (OTAs), and also serves as a good reminder that all protests challenging an aspect of an agency’s solicitation — including the agency’s choice of an OTA over a procurement contract — must be filed prior to the time for receipt of initial proposals.

Generally, the GAO’s bid protest jurisdiction does not extend to the review of awards made under an agency’s “other transaction” authority; however, the GAO will review a timely protest that an agency is improperly using an OTA rather than a procurement contract. See 4 C.F.R. § 21.5(m).

As we have discussed on this blog, the GAO’s standard of review for this question seemingly has evolved over time. Traditionally, the GAO would evaluate whether an agency was attempting to “acquire (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government,” in which case a procurement contract would be required in accordance with the Federal Grants and Cooperative Agreements Act (FGCAA). See Rocketplane Kistler, B-310741, Jan. 28, 2008, 2008 CPD P 22.

This was necessary “to ensure that an agency [was] not attempting to avoid the requirements of procurement statutes and regulations” by exploiting its other transaction authority. Id.

However, in two recent decisions, MorphoTrust and Oracle, the GAO disregarded whether the OTA was designed to purchase goods or services for the Government’s direct benefit or use, and instead looked only to “whether the agency’s use of its discretionary authority was proper, i.e., knowing and authorized.” Oracle America, Inc., B-416061, May 31, 2018, 2018 CPD P 180; MorphoTrust USA, LLC, B-412711, May 16, 2016, 2016 CPD P 133 (holding that “although the FGCAA provides applicable guidance to all federal agencies when the choices are limited to (1) procurement contracts, (2) grants, or (3) cooperative agreements, it provides no guidance when determining when an agency may properly use its other transaction authority”).

The difference between these standards is stark: one prevents an agency from issuing an OTA where it should issue a procurement contract instead, while the other simply looks to whether Congress has bestowed an agency with sufficiently broad other transaction authority.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=742996

October 12, 2018 By cs

GAO reviews agency actions in the wake of Equifax data breach

It’s easy to forget that roughly a year ago, Equifax was hacked, which compromised the personal information of roughly 145.5 million individuals.

The scope of the breach was concerning for a number of reasons, not the least of which was the fact that Equifax was providing identity verification services for three federal agencies at the time it was attacked.

In a recent report, GAO reviewed how these agencies responded to the attack. While not making any specific recommendations at this time, GAO’s report does highlight the extent to which federal agencies were not fully prepared for cyberattacks on private contractors.

Prior to the Equifax breach, the IRS, the Social Security Administration, and USPS contracted with Equifax to provide identity verification services. These agencies relied on Equifax’s databases to verify the identities of individuals applying for various services. For example, the IRS used Equifax servers to verify identities for tax return purposes.

Following the Equifax cyberattack, agencies took a variety of steps to assess the situation and make proactive changes to their contracts with Equifax. Foremost was notifying impacted individuals. While there was no breach of agency systems in connection with the Equifax attack, there was nevertheless concern that impacted individuals may have had an increased risk for identity theft. Accordingly, one of the first actions taken by the impacted agencies was to notify impacted individuals.

Keep reading this article at: http://smallgovcon.com/uncategorized/gao-reviews-agency-actions-in-the-wake-of-equifax-data-breach/

October 11, 2018 By cs

2nd protest filed against Pentagon’s proposed single cloud acquisition

IBM filed a bid protest Wednesday against the Pentagon’s $10 billion Joint Enterprise Defense Infrastructure cloud contract.

The pre-award protest, filed with the Government Accountability Office (GAO) on Oct. 10, 2018, comes just two days before the Oct. 12 deadline for the Pentagon to accept bids from cloud service providers. IBM officials told Nextgov they still plan to submit a bid for JEDI, but the company’s protest takes issue with the Defense Department’s decision to award JEDI to a single cloud service provider.

“JEDI’s primary flaw lies in mandating a single cloud environment for up to 10 years,” said Sam Gordy, General Manager for IBM Federal, in a blog post announcing the protest. “Leading global enterprises want clouds that are flexible, provide access to the best applications from multiple vendors, and can smoothly transition legacy systems. JEDI is a complete departure from these best practices.”

Oracle, another JEDI competitor, protested the JEDI solicitation in August on similar grounds. Oracle has subsequently filed a series of amended protests in the months since under legal seal, with a final decision expected from GAO by mid-November.

Keep reading this article at: https://www.nextgov.com/it-modernization/2018/10/ibm-files-bid-protest-against-pentagons-jedi-contract/151908/

October 4, 2018 By cs

Agencies need in-house techies to know how to buy good tech, GAO reiterates

Spend enough time around personnel from tech-in-government organizations like 18F and the U.S. Digital Service, and you’ll hear them say something like this: Their teams save the taxpayers money not just by building things, but also by being in the room during large-scale tech acquisitions and knowing the right questions to ask or how to call a salesman’s bluff.

It’s a simple value proposition, leaders say, but a powerful one.

According to a recent Government Accountability Office report, the federal acquisitions workforce writ large needs more of that expertise.

Asked to survey how the acquisition landscape has changed in the past decade, GAO found various improvements in the form of workforce planning and training. But ultimately, it decided, “finding workers with the technical knowledge for complex IT purchases is still difficult.”

Keep reading this article at: https://www.fedscoop.com/federal-agencies-tech-expertise-acquisition-gao-report/

It’s easy to forget that roughly a year ago, Equifax was hacked, which compromised the personal information of roughly 145.5 million individuals.

IBM filed a bid protest Wednesday against the Pentagon’s $10 billion Joint Enterprise Defense Infrastructure cloud contract.

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