Protest | The Contracting Education Academy

November 29, 2018 By cs

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

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 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/

July 27, 2018 By cs

Acquisition reforms survive in Defense authorization bill

Contractors hoping to protect their right to file bid protests got much of what they wanted in the conference report for the fiscal 2019 National Defense Authorization Act, which also contained several provisions to streamline the Pentagon’s acquisitions.

In reconciling the two chambers’ bills, House members accepted a Senate provision to require the Defense secretary to study the frequency and effects of bid protests related to the same contract award filed at both the Government Accountability Office and the Court of Federal Claims.

Some contractors had previously objected to a Pentagon request for curbs on protests some consider “frivolous” by giving companies a deadline for filing a second one. Instead, Defense must conduct the study within 180 days and also establish a data collection system “to better track and analyze bid protest trends in the future,” a joint explanatory statement said. For contracts of less than $100,000, the Pentagon must establish by Dec. 1 an expedited bid protest process.

Keep reading this article at: https://www.govexec.com/contracting/2018/07/acquisition-reforms-survive-defense-authorization-bill/150005

Just how bad are debriefings?

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

Contractors hoping to protect their right to file bid protests got much of what they wanted in the conference report for the fiscal 2019 National Defense Authorization Act, which also contained several provisions to streamline the Pentagon’s acquisitions.

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