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j_dude77

Prevailed in My First Protest to the COFC

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Congrats but before you award yourself that on the spot cash award perhaps you might want to take a step back for a moment of reflection and see that you probably had some help along the way to this decision? If this is indeed the case you may want to change the "my" to "our" in the title of this post. In my expereince a number of people put a great deal of time and effort to obtain these types of decisions and rarely, if ever, is it done by one person. A little expression of gratitude and thanks to everyone who was involved will go a long way especially if you work with these same folks again on another competitive buy.

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Congrats but before you award yourself that on the spot cash award perhaps you might want to take a step back for a moment of reflection and see that you probably had some help along the way to this decision? If this is indeed the case you may want to change the "my" to "our" in the title of this post. In my expereince a number of people put a great deal of time and effort to obtain these types of decisions and rarely, if ever, is it done by one person. A little expression of gratitude and thanks to everyone who was involved will go a long way especially if you work with these same folks again on another competitive buy.

Policy guy, I don't understand your problem. I don't know if the original post has been edited but it doesn't appear to me to be self-laudatory.

J_dude, the Government's alternative argument was that even if the HubZone preference did apply, the plaintiff was not prejudiced. The HZ firm's price was unreasonably high, based upon the Civil Works statute that only allows award up to 25% above the Goverment's estimate (that did not include profit). This Statute goes back years ago to compare the cost between in-house and by contract for dredging and other Civil Works projects. The Corps had their own work forces and there was political competition between industry and the Corps to be able to perform such work. The "25%" factor was based upon up to 15% cost variance between industry and in-house, then allowing 10% for profit that was considered justifiable for industry to include in their price. No profit is included in Civil Works Gov't estimates, because the estimates are theoretically based upon in-house Govt effort. I'm relatively certain of the methodology, because the regulations for award of Military Construction projects, also going way back, restrict the authority of a KO to award such contracts if the price exceeds "15%" of the Government's estimate. The Civil Works Construction prohibition is based upon Statute and the Military Construction restriction is based upon regulatory policy. I do remember a Dredging Protest to the Corps Board of Contract Appeals, 20 or more years ago, where the low bidder prevailed in showing that the Government's Estimate was unreasonably or mistakenly low. The low bidder also exceeded the 25% ceiling in that case.

I think that if the HubZone Act didn't apply, then the Alternative Defense would have been Moot. However, the Judge may have wanted to make a point regarding the lack of conflict between the two statutes. Even if the the 5% HZ preference were applied to determine which firm is the low bidder/proposer, the low bidder's price must not exceed the IGE by more than 125%, which is apparently the statutory upper limit of reasonableness.

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Joel,

In this case the protester did not challenge the IGE. Their argument was that the price preference not only made their bid lower than the lowest bidder, but also put their bid below the 25% threshold.

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Joel,

In this case the protester did not challenge the IGE. Their argument was that the price preference not only made their bid lower than the lowest bidder, but also put their bid below the 25% threshold.

???????? The Decision stated that AQUA Terra's bid price was 25.77% higher than the IGE. The Decision stated that this was not contested. And, when applying the price preference, you don't lower the SB's bid price. Don't you apply the prescribed percentage to increase the non-SB's price?

The protestor's bid would only have been less than 25% over the IGE if profit were subsequently added to the original IGE. Is that the basis of their argument that the bid was less than 25% over the IGE? I explained above that the 25% factor for Civil Works already includes a consideration for not including profit in the IGE. That is why the COFC would not require profit to be added to the IGE. (EDIT: For example, see footnote 4 at page 12 of the Decision.)

The similar measuring stick for awarding Military Construction contracts above the IGE is a 15% difference between a bid and the IGE. Government estimates for MC do include profit. Thus, the 10% difference between the yardsticks of 15% (MC) and 25% (CW) considers that profit would be included in a bid and in an IGE for MC but not in the IGE for Civil Works.

Again, the historic basis for that was that CW estimates have been based upon in-house cost and compared with industry prices to do the work. Even though the USACE has few remaining in-house resources these days, the law has remained the same.

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