Bid Protest Lawyer Blog

Size Matters-Ostensible Subcontractor Rule

Posted by Joseph Whitcomb on January 17, 2018

Primary and Vital Contract Requirements

Size Appeal of: Emergent, Inc., Appellant Re: Kapsuun Grp., LLC, SBA No. SIZ-5875, 2017 (Dec. 19, 2017)

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The Air Force issued an RFP for Linguist and Support Services (LASS) on November 30, 2016, in support of intel operations.  The procurement was an 8(a) set-aside.  The size standard for the NAICS in question was 7.5 million.  The contract required the awardee to perform all phases of collecting, interpreting, translating, and performing analysis of mission data. The contractor shall provide support as language mentors and trainers. The contractor shall furnish the required management, technology and personnel required to provide the requested linguist support as specified in this PWS.”  The protested awardee, Kapsuun Group (KG), and the contract predecessor, Premier Management Group (PMG), teamed up with Booz Allen Hamilton as team members to submit a proposal for and eventually perform this contract.  KG is also one of 3e subsidiaries of Chenega, an Alaskan Native Corporation and, pursuant to 13 CFR 121.103(b), is exempt from affiliation with Chenega

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Topics: Government Contracting, Bid Protest

GAO Determines that Lowest Price Is Not Enough

Posted by Joseph Whitcomb on January 15, 2018

Source Selection Authority’s Ignoring of Strengths and Weaknesses in Favor of Lower Price was Illegal

Matter of: Immersion Consulting, LLC, B-415155 (Dec. 4, 2017)

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The Matter of Immersion Consulting was GAO bid protest about and FSS solicitation for program management support for the Defense travel management office. Immersion Consulting and NetImpact both submitted proposals and were found to satisfy the requirements of the solicitation. However, in the Source Selection Evaluation Board (SSEB) found three strengths in Immersion’s proposal and two strengths and a weakness in NetImpact’s.

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Topics: Government Contracting, Bid Protest

De Facto Joint Ventures

Posted by Dan McAuliffe on September 20, 2017

 

Size Appeal of Olgoonik Diversified Services, LLC

SBA No. SIZ-5825 (2017)

 

This case concerns the Small Business Act of 1958. Recognizing the importance of free enterprise and competition, the Small Business Act requires the U.S. Government to assign a fair portion of contracts and purchases to small businesses. The Small Business Administration (SBA) and its Office of Hearings and Appeals (OHA) oversee the administration of the Small Business Act. The SBA uses size standards and the North American Industry Classification System (NAICS) to define what qualifies as a small business. 

Background on De Facto Joint Ventures

On June 5, 2016, the Department of State, Bureau of Overseas Buildings (DoS) submitted a two-phase Request for Proposal (RFP) for a “contractor to provide Design-Build Construction Services” for the Baghdad Embassy Compound. The Contracting Officer (CO) reserved this request for small businesses and classified as NAICS code 236220, under the category of “Commercial and Institutional Building Construction” and carrying a size standard of $36.5 million. 

 

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Topics: Bid Protest

Blanket Purchase Agreements

Posted by Joseph Whitcomb on September 6, 2017

 

Matter of Knight Point Systems, LLC, 2017 WL 2472225

 The Comptroller General of the United States decided this case. The Comptroller General is the head of the Government Accountability Office (GAO). Acting on behalf of Congress, the GAO handles a variety of fiscal, oversight, and accountability functions. 

Background of Blanket Purchase Agreements

On June 24, 2016, The Department of Homeland Security (DHS) submitted request for quotations (RFQ) number HSHQDC–16–Q–00195. The RFQ called for “enterprise computing services and cloud computing services.” The RFQ outlined the award of blanket purchase agreements (BPAs) to several companies for “infrastructure-as-a-service (IaaS) cloud services,” provided directly or using resellers. 

 The DHS specified that price would not be the most important factor in the award of the BPAs. The capacity of IaaS services offered was the first consideration. The DHS would weigh past experience and performance heavily. Finally, the DHS would use price to differentiate similar, technically acceptable bids. 

Knight Point Systems, LLC (Knight Point), Four Points, InfoReliance, and Govplace all submitted bids for this RFQ. 

The DHS evaluated all of the submitted bids. Four Points, InfoReliance and Govplace were the top three firms. Four Points received four “exceptional” ratings. InfoReliance and Govplace received three “exceptional” ratings and one “very good” rating each. Knight Point received three “very good” ratings and one “satisfactory” rating. 

 

On February 13, 2017, the DHS announced the award of BPAs to Four Points, InfoReliance and Govplace. 

Knight Point protested and challenged the technical evaluation process. The DHS downgraded Knight Point for to use only SaaS cloud services vendors listed by “brand name on its GSA schedule contract.” Knight Point argues that the DHS acted improperly, as no such requirement was outlined in the RFQ.

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Topics: Bid Protest

Bid Protest and the Alternative Dispute Resolution

Posted by Dan McAuliffe on August 31, 2017

 

Reagent World, Inc. vs Department of Agriculture, 2017 WL 3114026

 

The Civilian Board of Contract Appeals (CBCA) decided this case. As part of the General Services Administration (GSA), the CBCA hears various cases concerning federal agencies in the executive branch. Under the Contract Disputes Act (41 U.S.C. 7101-7109), the CBCA conducts dispute resolution between government contractors and agencies. 

The CBCA was established on January 6, 2007, in accordance with Section 847 of the National Defense Authorization Act for Fiscal Year 2006. After its formation, the CBCA consolidated the authority of eight different governmental bodies – the contract appeal boards of the Departments of Housing and Urban Development, Interior, Labor, Energy, Transportation, Veterans Affairs and Agriculture, as well as the General Services Administration. 

The CBCA has authority to hear cases involving all federal government agencies, except for the Department of Defense, the National Aeronautics and Space Administration, the United States Postal Service, the Postal Regulatory Commission and the Tennessee Valley Authority. 

The CBCA also promotes the use of alternative dispute resolution (ADR) techniques to resolve disputes quickly, effectively and at low cost. Employing various practices to streamline regular case procedure, the CBCA encourages all parties to resolve conflicts out of court. 

Background on an Alternative Dispute Resolution

In 2015, the Department of Agriculture (DoA) awarded Contract AG6395C150058 to Reagent World, Inc. (Reagent World). The contract was classified under NAICS code 325412 for “Pharmaceutical Preparation Manufacturing.” The total value of this firm-fixed-price contract was $110,364. 

The period of performance for this indefinite delivery contract was specified as March 12, 2015 through March 31, 2020. An indefinite delivery contract allows the government to purchases goods or services on an unspecified schedule. Essentially, the government can award indefinite delivery contract when there is not a precise date for delivery or specific quantity listed. 

Sometime after performance began, a dispute arose concerning this contract. Reagent World appealed to the CBCA for review and a final determination. 

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Topics: Bid Protest

The Comptroller General

Posted by Dan McAuliffe on August 28, 2017

Matter of Red River Computer Company, Inc., 2017 WL 2617670

 

 

 

The Comptroller General (CG) of the United States decided this case. The Comptroller General is the head of the Government Accountability Office (GAO). Acting on behalf of Congress, the GAO handles a variety of fiscal, oversight and accountability functions.

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Topics: Bid Protest

Court of Federal Claims Bursts Bubbles

Posted by Brandon Selinsky on August 7, 2017

 

American Sanitary Products, Inc. v. United States

- 2017 WL 3124441

 The United States Court of Federal Claims decided this case. Established pursuant to Article I of the U.S. Constitution, this court deals mostly with monetary claims made against the U.S. government. This court commonly hears cases concerning government contracts and tax refunds, among other subjects. 

 

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Topics: Bid Protest

When is it okay to supplement the Agency record on a bid protest?

Posted by Joseph Whitcomb on July 9, 2017

Sonoran Technology V. United States

The Court of Federal claims recently found that while not favored, supplementation of the administrative record is allowed. The Air Force awarded the contract in question to SPG, which at the time of the award lacked a necessary facility clearance. After learning that SPG lacked the necessary facility clearance, the Air Force canceled its award to SPG and awarded to Sonoran. SPG initially filed a GAO bid protest, requesting that the company be referred to the SBA for a responsibility determination, but the GAO dismissed the protest. SPG then filed a protest with the US Court of Federal claims (COFC), which prompted the contracting officer to issue a corrective action and referred SPG to the SBA.  The contracting officer did not explain its reasoning for the corrective action.  However, the COFC dismissed SPG’s protest as a result of the corrective action.

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Topics: Bid Protest

GAO Reviews Bid Protests

Posted by Joseph Whitcomb on July 6, 2017

General Accountability Office Reviews

Bid Protests During Lapse

Recently, the General Accountability Office’s jurisdiction lapsed when a sunset provision that was established by the National Defense Authorization Act took effect. The lapse in jurisdiction ended when President Obama signed the General Accountability Office Civilian Task and Delivery Order Protest Authority Act into law and removed the sunset provision. The General Accountability Office is now tasked with determining how to respond to protests that occurred during the lapse in judgment. In two recent opinions, the Government Accountability Office declined to reconsider bid protests that the Office dismissed during its recent lapse in its jurisdiction. In another opinion, the General Accountability Office denied a protest filed for the first time following reinstatement of jurisdiction. There are many essential elements for individuals to understand concerning how a bid protest is made.

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New Rules for Federal Acquisition Regulation

Posted by Joseph Whitcomb on June 22, 2017

New Rules for Federal Acquisition Regulation

Federal Government contractors must comply with new privacy training procedures related to federal acquisition regulation due to a final rule passed by the United States Department of Defense, General Service Administration, and National Aeronautics and Space Administration. Federal contractors are now required to meet training obligations to address the protection of privacy with the Privacy Act of 1974 and the handling and safeguarding of personally identifiable information. These new regulations became effective on January 19, 2017. To make sure that an individual is in full compliance with these rules, it is often a good idea to contact a knowledgeable government contract attorney who can help to make sure that you are in full compliance.

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Topics: Bid Protest

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