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Found 21 results

  1. A pair of large contracts for administrative services with the Centers for Medicare & Medicaid Services (CMS) are great but two pairs are better. In a recent case, National Government Services, a company holding multiple contracts with CMS, protested when agency rules prevented them from competing for several more. Ultimately, the agency was able to successfully defend the limitations written into their solicitation, and the case provides a template for other agencies that may find themselves in similar circumstances. Read the full article at Petrillo & Powell's Patterns of Procurement.
  2. A competitor protested when an Energy Department (DoE) contract awardee proposed an unusual plan for processing radioactive liquid waste. Given the apparent riskiness of the winner’s proposition, it’s not surprising that GAO sustained the protest. What is surprising (and remains a mystery) is how the agency assessed the winning proposal’s technical approach as sound. Read on to learn how one protestor succeeded because of an agency’s murky evaluation. Read the full article at Petrillo & Powell's Patterns of Procurement.
  3. When the Department of Defense (DoD) sought restrictions on bid protests, Congress made them commission a study to validate their case. That study, authored by the RAND Corporation, looks at bid protests during the 9-year period from 2008-2016. The study indicates a significant increase in the number of bid protests over that time period. That trend alone bolsters the DoD’s case. But a further look at the extensive data from RAND’s study suggests otherwise, and provides critical insights for Defense contractors. Read the full article at Petrillo & Powell's Patterns of Procurement.
  4. GAO decision B-308969, Interagency Agreements--Obligation of Funds under an Indefinite Delivery, Indefinite Quantity Contract, May 31, 2007 indicates that it is the responsibility of the agency to immediately issue an obligation order off an IDIQ contract meeting the amount of the required minimum purchase. My agency is often competing and awarding IDIQ contracts in the FY prior to the anticipated and advertised POP. Therefore award is often in May -August for POP start date October 1 aligning with the Fiscal Year. In this case is it really appropriate to issue a minimum order at the point of award. In actuality the appropriate FY funding doesn't even exist yet.
  5. It sounds simple. In Lowest Price Technically Acceptable (LPTA) procurements, the agency determines the best value proposal by identifying those that are technically acceptable and then selecting the one with the lowest price. But there’s a wrinkle when this technique is used for a cost-reimbursement contract. Smartronix’s recent protest at GAO illustrates that proposing the lowest cost doesn’t always win you the contract, even when you’re technically acceptable. Specifically, contractors if the proposed cost is too low, the Government can adjust it upwards. Read on to learn more about this problem and how to avoid it. To read the full article, visit Petrillo & Powell's Patterns of Procurement.
  6. In a best value procurement, being roughly as good as the competition and offering a slightly lower price doesn’t necessarily mean you’ll win the contract. Such was the case for DynCorp, which offered a lower price and a comparable CPARS score to the incumbent, L-3 Communications. When DynCorp lost the re-competition for Air Force logistics support, they protested at GAO. But savviness on the part of the agency saved the award. To read the full article, visit Petrillo & Powell's Patterns of Procurement.
  7. Federal contractors often hire former agency employees. But rules exist that can place limitations on the business activities of past officials who seek to work with the agency by which they were previously employed. So what happens when a bidder thinks that a competitor has an unfair advantage because it has hired such a former official? A recent protest decision sheds some light on how agencies and GAO proceed when facing such a perceived conflict of interest. Read the full article at Petrillo & Powell's Patterns of Procurement.
  8. Gordon Shumway

    BANNED! Again...

    Latvian Connection is at it again. This time GAO dropped a 2 year ban on ol' Keven. Next up, according to the decision, could be a permanent ban. http://www.gao.gov/products/B-415043.3
  9. Sometimes multiple contractors earn spots on Indefinite Delivery, Indefinite Quantity (IDIQ) contracts, which allow for an undetermined quantity of supplies or services during a fixed period of time, as outlined in FAR. But what happens when winning contractors have reservations about the competitors who earn contracts alongside them? DaeKee Global Co. found itself in such a situation, and reacted by protesting the terms of the solicitation. Read on to learn how GAO and the COFC responded to such protests, and what this means for contractors concerned about their bedfellows in IDIQ contracts. To read the full article, visit Petrillo & Powell's Patterns of Procurement.
  10. After the proposal due date, the rule is that late changes or revisions are not accepted, with certain narrow exceptions spelled out in regulation. However, GAO has carved out its own exception when key personnel become unavailable. Such was the case when the YWCA protested a recent Labor Department award. GAO held that after proposal submission, an agency cannot accept a replacement for a key person who becomes unavailable without opening discussions with all offerors in the competitive range. The case highlights some of issues that arise for offerors when personnel changes occur after proposals are submitted. Read the full article at Petrillo & Powell's Patterns of Procurement.
  11. In two recent cases, disappointed contractors protested when agencies failed to request clarifications or open discussions. Both Defense Base Services and Level 3 argued that the issues with their proposals could have been remedied if given the chance. GAO denied both offerors’ protests. Yet when Level 3 persisted at the COFC, the judge concluded that an agency’s failure to request clarifications constituted an abuse of discretion. The cases illustrate the difference in the way GAO and the COFC view clarifications and discussions, and shed insight for offerors under similar circumstances. Read the full article at Petrillo & Powell's Patterns of Procurement.
  12. An offeror protested an award by the U.S. Forest Service when the agency’s solicitation appeared to favor a competitor, but the protest was denied at GAO. The Simplex Aerospace decision, in comparison to the recent case of PSI, raises the question of whether disappointed contractors are better served by filing protests with GAO or the Court of Federal Claims. Does the decision of where to file really mean the difference between a win and a loss in the world of Government contracts? Read the full article at Petrillo & Powell's Patterns of Procurement.
  13. 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. To read the full article, visit Petrillo & Powell's Patterns of Procurement.
  14. Sometimes the Government seeks the best overall value, and at times simply lowest cost. But even when low price is determinative, the bidder must still meet minimum technical qualifications. In a recent case, Level 3 Communications lost a major contract with the Dept. of Defense to Verizon, whose bid exceeded theirs by nearly $40 million. Level 3 was disqualified for what it thought were trivial reasons. When Level 3 protested, it got no relief from GAO, but the Court of Federal Claims came to their rescue. More at Petrillo & Powell's Patterns of Procurement.
  15. As a recent big acquisition by the Department of Education (ED) for IT services shows, GAO takes the integrity of the procurement system very seriously. The case sheds light on how agencies and contractors should respond when they believe the integrity of the procurement process may be threatened. Specifically, contractors may need to self-report breaches of the integrity rules, affected competitors need to act promptly to preserve their rights, and agencies must investigate problems and take appropriate action to ensure a fair procurement. View the full article at Petrillo & Powell's Patterns of Procurement.
  16. For losing contractors, the question of whether to protest is a tricky one. Contractors often move to protest when the requirements seem to favor one competitor over another, or when the rules of the procurement are unclear. But there’s an important difference between an agency displaying an abuse of discretion and simply utilizing the flexibility written into the Federal Acquisition Regulation (FAR). Two recent cases shed light on where that distinction may lie. Professional Service Industries,Inc. v. United States, et al., 129 Fed. Cl. 190 (2016) SSI, B-413486, et al., Nov. 3, 2016. View the full article here.
  17. GAO will launch a new, web-based, electronic bid protest filing system, and require protestors to pay a filing fee of $350. http://www.gao.gov/legal/bid-protest-notices/about Does anyone think this will significantly affect the number or quality of GAO protests? PepeTheFrog imagines that any effects will be minimal because $350 is not much of a deterrent for filing. What does the forum think? Excerpt from GAO daily bid protest digest, 2016-04-26: "New Process Coming: This summer, GAO will establish a secure and easy-to-use web-based electronic bid protest filing and dissemination system (EPDS). EPDS will also provide automatic notice of a protest to the agency. Once it is live, all protesters will be required to use the system to file new protests, and there will be a $350.00 filing fee. Funds from the filing fee will be used to pay for the operation and maintenance of the system. This new process necessitates changes in GAO's Bid Protest Regulations found at 4 C.F.R. part 21."
  18. Latavian Connections, B-413442 has just been banned from protesting for 1 year. I've personally dealt with some of these when I was in policy. Here are a few interesting tidbits. http://www.gao.gov/products/B-413442#mt=e-report
  19. The authority of the GAO to hear bid protests regarding civilian agency task and delivery orders over $10 Million will expire on Sep. 30, 2016, unless the Congress acts to eliminate or extend the sunset provision of 41 USC 4106(f)(3). I support 41 USC 4106(f)(3) as it is now written. I support the sunset provision for protests to GAO on task and delivery orders for civilian agencies. The task and delivery order ombudsman process of 41 USC 4106(g) will never become meaningful unless the sunset is allowed to occur -- and I want the ombudsman provision to become meaningful; therefore, I want the sunset to occur. Accordingly, I oppose Section 502 of H.R. 4341, Defending America’s Small Contractors Act of 2016, because Sec. 502 would eliminate the sunset. Sunsets are beautiful, don’t you think? Below is the pertinent text from H.R.4341 and 41 USC 4106: Defending America's Small Contractors Act of 2016 H.R. 4341 Sec. 502. Protecting task order competition. Section 4106(f) of title 41, United States Code, is amended by striking paragraph (3). Orders 41 USC 4106 (f) Protests. (1) Protest not authorized. A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for: (A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or (B) a protest of an order valued in excess of $10,000,000. (2) Jurisdiction over protests. Notwithstanding section 3556 of title 31, the Comptroller General shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B). (3) Effective period. Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016. (g) Task and Delivery Order Ombudsman. (1) Appointment or designation and responsibilities. The head of each executive agency who awards multiple task or delivery order contracts under section 4103(d)(1)(B) or 4105(f) of this title shall appoint or designate a task and delivery order ombudsman who shall be responsible for reviewing complaints from the contractors on those contracts and ensuring that all of the contractors are afforded a fair opportunity to be considered for task or delivery orders when required under subsection (c). (2) Who is eligible. The task and delivery order ombudsman shall be a senior agency official who is independent of the contracting officer for the contracts and may be the executive agency’s advocate for competition.
  20. An Agency Level Protest was filled with our office on March 15, 2016. Yesterday, April 13, 2016, (prior to the Agency decision) the Agency received notice from the Contractor that a GAO Protest had been filled. My Question... Should a protestor file with GAO while an Agency protest is pending, is the Agency then absolved from issuing a decision? I will continue to look in Part 33 as well as 4 CFR Part 21, etc.; however, I have yet to find this scenario addressed. My gut tells me that once a protest is filled with GAO, any pending Agency decision would now be irrelevant (for lack of a better word this early in the morning).
  21. My Procurement Exec and one Attorney believe GAO recently used the so-called "10%" rule to determine a contract modification was within scope and therefore denied a protest. Neither has been able to produce anything other than their own recollection. Everything I have found in my previous and recent research indicates they are seriously mistaken. So if anyone out there has seen anything from GAO to support their statements, please post a link.
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