protest | The Contracting Education Academy

November 14, 2019 By cs

Bid protests hit 10-year low

Companies filed 16% fewer bid protests in fiscal 2019 than the year prior.

According to data released last Thursday by the Government Accountability Office (GAO), vendors filed 2,198 protests in fiscal 2019, 16% fewer than were filed in the previous year. Fiscal 2019’s total represented 22% fewer protests than GAO’s 10-year high-water mark—the 2,789 filed in fiscal 2016.

According to GAO, the agency closed 2,200 cases in fiscal 2019 and sustained 77 of the 587 total decisions decided on merit. Fiscal 2019’s 13% sustain rate—wherein GAO agrees with the bid protestor—was its lowest since fiscal 2015. A large number of bid protests are resolved when agencies agree to take corrective action rather than GAO carrying the protest to full conclusion.

Keep reading this article at: https://www.nextgov.com/cio-briefing/2019/11/bid-protests-hit-10-year-low/161168/

October 16, 2019 By cs

COFC finds no jurisdiction over SpaceX’s OTA protest

The Court of Federal Claims dismissed SpaceX’s OTA bid protest finding that the court lacks subject matter jurisdiction over this OTA protest.

In a recently released decision, the COFC held that the court did not have Tucker Act jurisdiction to resolve a bid protest challenging the award of Other Transaction Agreements (OTAs).

In this case of first impression, SpaceX challenged the Air Force’s award of three OTAs for launch services. SpaceX acknowledged that the Air Force’s prototype OTAs were not “procurement contracts” under the Tucker Act. However, SpaceX noted that, following the government’s investment in the development of launch system prototypes under the OTA, the Air Force plans to procure launch services via a competitive procurement during Phase two of the program. As a result, SpaceX argued that the OTA was awarded “in connection with” the Phase two procurement, and therefore subject to Tucker Act jurisdiction.

The court rejected this argument, finding that the OTA award was not “in connection with a procurement or proposed procurement,” as contemplated by the Tucker Act. The court noted that the OTA and procurement competitions involved separate and distinct solicitations with different acquisition strategies, different start dates, and different goals. The court also noted that the Phase two Procurement will not be limited to the companies awarded the prototype OTAs.

Keep reading this article at: www.mondaq.com/article.asp?articleid=848220

June 26, 2019 By AMK

GAO highlights ‘responsibility’ exception to ‘late is late’ rule

Recent GAO protest decision highlights the case law-derived exception to the “late is late” rule for responsibility-related proposal documents.

TAKEAWAYS

The FAR “late is late” rule requires rejection of untimely filed proposal documents, except in limited circumstances.

Under GAO case law, proposal documents relating to a contractor’s responsibility may be submitted any time prior to award, regardless of contrary statements in the solicitation.

A recent GAO protest decision confirms that agencies are required to evaluate responsibility documents received after the proposal deadline and before award or earlier down-select evaluation.

Under the Federal Acquisition Regulation (FAR) “late is late” rule, a government contractor’s proposal must be received by the government by the time stated in the solicitation. If a proposal document is even one second late, it cannot be accepted by the government. The FAR provides very limited exceptions to this rule. Specifically, it states that where a proposal is received before the award and the contracting officer determines that accepting it will not delay the procurement, the government may accept the untimely proposal if: (1) it was received electronically at the initial point of entry to the government infrastructure at least one working day before the proposal submission deadline, or (2) if it was under government control before the proposal submission deadline, or (3) if only one proposal was received. These narrow FAR-based exceptions apply infrequently.

Government Accountability Office (GAO) case law, however, provides another exception to the “late is late” rule, for responsibility-related proposal documents. GAO has long held that solicitation requirements regarding present responsibility of the contractor, governed by FAR Subpart 9.1, may be satisfied at any time before award and that a solicitation cannot convert a matter of responsibility into one of proposal acceptability. This means that if a contractor submits responsibility-related documents after the deadline for receipt of proposals, the government must evaluate those documents if they are relevant to the government’s determination of the contractor’s responsibility. The government is not obligated to give offerors an opportunity to provide missing documents that relate to responsibility, but it may not refuse to consider information that it has in its possession, even if it was received after the proposal submission deadline.

Keep reading article at: https://www.jdsupra.com/legalnews/gao-highlights-responsibility-exception-58695/

January 4, 2019 By AMK

Someone is waging a secret war to undermine the Pentagon’s huge cloud contract

As some of the biggest U.S. technology companies have lined up to bid on the $10 billion contract to create a massive Pentagon cloud computing network, the behind-the-scenes war to win it has turned ugly.

In the past several months, a private investigative firm has been shopping around to Washington reporters a 100-plus-page dossier raising the specter of corruption on the part of senior Defense Department and private company officials in the competition for the JEDI cloud contract. But at least some of the dossier’s conclusions do not stand up to close scrutiny.

The dossier insinuates that a top aide to Defense Secretary Jim Mattis worked with Mattis and others to steer the contracting process to favor Amazon Web Services, or AWS — and enrich the aide. The aim of the dossier seems clear: to prevent the deal from going solely to AWS, the odds-on favorite in part because it operates the CIA’s classified commercial cloud. Far less clear, however, is who backed its creation and distribution.

It’s an unusually hardball form of backroom maneuvering in the world of lucrative but rigidly controlled defense contracting. The firm that prepared the dossier, RosettiStarr, shopped it to various Washington reporters earlier this year. Defense One was given a copy in May. At the time, RossettiStar President and CEO Rich Rosetti declined to reveal who funded the firm’s efforts.

Former defense officials told Defense One they received inquiries about the allegations from the Wall Street Journal, the Washington Post, Reuters, and the Intercept. For months, the accusations went unaired by news outlets, including Defense One and Nextgov, sister publications in Atlantic Media’s Government Executive Media Group.

But in the past few weeks, some of the information in the dossier has surfaced in various publications. Now that the dossier’s targets have been publicly accused, they are speaking out. In exclusive interviews with Defense One and Nextgov, they vehemently deny any wrongdoing and seek to turn the spotlight on their mysterious accusers.

Keep reading this article at: https://www.defenseone.com/technology/2018/08/someone-waging-secret-war-undermine-pentagons-huge-cloud-contract/150685/

November 29, 2018 By AMK

Poor debriefings spur bid protests

Just how bad are debriefings?

Pretty bad and possibly getting worse.

That’s the general conclusion of Washington Technology’s Insider Report on post-award debriefings and bid protests.

As the findings show, poor debriefings often lead to bid protests. So while bid protests often are criticized, they are really a symptom of a problem and not the main problem.

Generally, companies don’t want to protest. The research showed that a nearly three-quarters felt protests damaged the long-term relationship, but nearly the same percentage said they would protest again.

That tells us how important quality debriefings are. Companies want is to hear from their customers how their proposal fell short. This kind of feedback can change how companies do business, what kind of solutions they develop and even who they team with.

Keep reading this article at: https://washingtontechnology.com/blogs/editors-notebook/2018/10/debriefing-special-report.aspx