Jump to content

Recommended Posts

Under a Multiple Award IDIQ can the government state that vendors who choose to provide a proposal do so with the understanding that they waive their right to protest the award decision to GAO? In this scenario we are assuming that the TO exceeds the $25M threshold. The RFP would state that protests must be submitted to the agency or COFC.

Link to comment
Share on other sites

This has been tried in the past and wasn't very successful.  I know of one instance where it was legally challenged and the agency prevailed.  Then Congressional representatives got involved and strongly objected since it appeared as the government strong armed companies to waive their rights.  The agency backed down and withdrew that condition.

Link to comment
Share on other sites

2 minutes ago, formerfed said:

This has been tried in the past and wasn't very successful.  I know of one instance where it was legally challenged and the agency prevailed.  Then Congressional representatives got involved and strongly objected since it appeared as the government strong armed companies to waive their rights.  The agency backed down and withdrew that condition.

Thanks for your insight. Do you recall if in that instance the govt. was still allowing protest to the agency and COFC? We don't want to deny all rights to protest - just GAO.

Link to comment
Share on other sites

18 minutes ago, Retreadfed said:

Why do you want to take away GAO bid protest rights?  Have you thought about the effect this can have on competition for the contracts and the quality of work you may get?

I'm not sure how this directly relates to competition or performance. Are you saying that contractors will perform poorly if they can't protest to GAO? Also, this is already in place for TOs under $25M. This would just expand the rule that is already in place to over all of our TOs (many of which exceed $25M).  

Link to comment
Share on other sites

8 minutes ago, justinramani said:

I'm not sure how this directly relates to competition or performance. Are you saying that contractors will perform poorly if they can't protest to GAO?

What I am saying is that if you make this a condition for receiving an IDIQ contract, you may not get that many offers in response to the RFP.  As a consequence, you may not get the best firms to be contractors.  You still have not said why you want to take away this right.  Because congress decided not to permit protests of task orders below $25M is not a good reason for agencies to decide to try to take away the right in regard to TOs in excess of $25M.  Congress did a balancing of interest in regard to economy and convenience for agencies and the interest of contractors to ensure that they were not subjected to improper actions by the government.

Link to comment
Share on other sites

LOL, no.

FAR 33.104 - Procedures for protests to GAO are found at 4 CFR Part 21 (GAO Bid Protest Regulations). In the event guidance concerning GAO procedure in this section conflicts with 4 CFR Part 21, 4 CFR Part 21 governs.

FAR 16.505 - ii) Protests of orders in excess of the thresholds stated in 16.505(a)(10(i)(B) may only be filed with the Government Accountability Office, in accordance with the procedures at 33.104.

The Contracting Officer has no authority here.  

If I am wrong, and a CO can make exemptions to other regulations, please let me know so I can have offerors start waiving their SBA-mandated right to protest small business representation.  It will make my life easier.

 

Please, please, please protest this - to GAO.  I would be genuinely delighted to read GAO's bid protest decision about whether an agency can require offerors to waive their right to a GAO bid protest. 

Link to comment
Share on other sites

1 hour ago, justinramani said:

Thanks for your insight. Do you recall if in that instance the govt. was still allowing protest to the agency and COFC? We don't want to deny all rights to protest - just GAO.

In that instance the agency didn’t exclude COFC.  But they encouraged agency level protests since they eliminated GAO.

Another related thing I remembered concerned multiple award BPAs against GSA Schedule contracts.  The solicitation stated the government sought companies who would collaborate and work in partnership in meeting government program objectives.  This was one of the major evaluation factors and companies had to address in proposal submission.  The agency stressed frequent protests demonstrated the reverse in companies and offerors needed to detail all protests made in the past and circumstances.   I’ll try to see how that’s working and will post anything I find out.

Link to comment
Share on other sites

 

1 hour ago, General.Zhukov said:

LOL, no.

If I am wrong, and a CO can make exemptions to other regulations, please let me know so I can have offerors start waiving their SBA-mandated right to protest small business representation.  It will make my life easier.

Please, please, please protest this - to GAO.  I would be genuinely delighted to read GAO's bid protest decision about whether an agency can require offerors to waive their right to a GAO bid protest. 

Very professional. I hope you aren't responsible for developing others since you clearly don't condone thinking outside the box.

Link to comment
Share on other sites

44 minutes ago, formerfed said:

In that instance the agency didn’t exclude COFC.  But they encouraged agency level protests since they eliminated GAO.

Another related thing I remembered concerned multiple award BPAs against GSA Schedule contracts.  The solicitation stated the government sought companies who would collaborate and work in partnership in meeting government program objectives.  This was one of the major evaluation factors and companies had to address in proposal submission.  The agency stressed frequent protests demonstrated the reverse in companies and offerors needed to detail all protests made in the past and circumstances.   I’ll try to see how that’s working and will post anything I find out.

Thank you for moving this conversation along in a thoughtful manner.

Link to comment
Share on other sites

41 minutes ago, justinramani said:

you clearly don't condone thinking outside the box.

Thinking outside the box to accomplish what?  Giving the government free reign to ignore the provisions of FAR 16.505 and the terms of the contract regarding how orders under multiple award IDIQ contracts will be issued?  Protests against such orders cannot be filed in the COFC.  Only orders above $25M can be protested to GAO.  If that is taken away, that leaves only an agency level protest.  This results in an Alice in Wonderland situation where "things mean what we [the agency] say they mean."  A contractor that trusts the government is this case would be insane.

Link to comment
Share on other sites

I’ll all in favor of thinking outside the box of homemade self-imposed limitations.  But I don’t think a contracting officer can take away a privilege (or a right?) that the Congress and the President granted through the passage of a public law.  Have proposals been submitted yet?

I also don’t think a contracting officer can grant a federal court the right to hear a bid protest.  Again, by act of Congress and the President, the COFC cannot hear bid protests (except for narrow CICA reasons not at play here).

Link to comment
Share on other sites

1 hour ago, justinramani said:

 

Very professional. I hope you aren't responsible for developing others since you clearly don't condone thinking outside the box.

More professionally stated-----

What I mean to say is that based on my reading of the FAR Parts 16 (Ordering) and 33 (Protest), there are two salient facts:

  1.      protests for orders over $25MM are the exclusive jurisdiction of the GAO per FAR 16
  2.      protest procedures, including whether/how rights to protest may be waived, are not in FAR - they are in an entirely different regulation, which supersedes the FAR.

These two facts mean that the orders in question are affirmatively subject to GAO protest unless GAO - not the contracting agency - says otherwise, and GAO has not said otherwise.  And what's more, I think this is a unassailable rock-solid statement. 

I give the example of how waiving small business representations to show how the same (incorrect, IMO) reasoning applied to the SBA leads to an obviously un-allowable situation.  Because who would bother with all that small business stuff if it could just be waived by the CO?

The remark about GAO bid protest decision is to show an internal inconsistency.   If contract-holders don't agree with the GAO waiver, to whom would they protest the solicitation if not to GAO? The FAR states only GAO handles such protests.    And if they decided to sign the waiver and then protest to GAO anyways, do you really think GAO would dismiss the protest? 

Link to comment
Share on other sites

2 minutes ago, General.Zhukov said:

More professionally stated-----

What I mean to say is that based on my reading of the FAR Parts 16 (Ordering) and 33 (Protest), there are two salient facts:

  1.      protests for orders over $25MM are the exclusive jurisdiction of the GAO per FAR 16
  2.      protest procedures, including whether/how rights to protest may be waived, are not in FAR - they are in an entirely different regulation, which supersedes the FAR.

These two facts mean that the orders in question are affirmatively subject to GAO protest unless GAO - not the contracting agency - says otherwise, and GAO has not said otherwise.  And what's more, I think this is a unassailable rock-solid statement. 

I give the example of how waiving small business representations to show how the same (incorrect, IMO) reasoning applied to the SBA leads to an obviously un-allowable situation.  Because who would bother with all that small business stuff if it could just be waived by the CO?

The remark about GAO bid protest decision is to show an internal inconsistency.   If contract-holders don't agree with the GAO waiver, to whom would they protest the solicitation if not to GAO? The FAR states only GAO handles such protests.    And if they decided to sign the waiver and then protest to GAO anyways, do you really think GAO would dismiss the protest? 

Thank you - I see where the FAR states that only GAO can hear TO protests over $25M. That answers my original question.

Link to comment
Share on other sites

More information received from the agency I mentioned earlier.  I checked and got agreement to provide a little more.

The RFP stressed importance of timely and responsible performance under the contracts. The program was vitally important to the agency and no delays could be tolerated.  The RFP laid out the task ordering process very succinctly - all contractors will receive full task order solicitation information and be considered objectively for awards.  The goal was collaboration and partnering (including between contractors performing at the same time).  All contract recipients must agree to work in that spirit and disagreements by contractors with the government  get resolved with the KO first.  If that isn't successful, the contractor agrees to arbitration using an ADR process.  Also the contractor agrees to not protest to GAO unless the issue involves some specifically defined parameters.  There was some ambiguous language too saying because of the criticality of the program, the agency may not consent to GAO recommendations.

Awards were made and an unsuccessful offeror at the contract level protested this condition as well as some others.  The companies attorney after doing research concluded this issue was untimely since it should have been protested earlier.  The agencies attorneys also stressed to their counterparts that the government wasn't taking away any legal rights since companies voluntary agree to use of ADP. In addition they stressed this was a negotiated agreement which companies consented to.

So the concept wasn't tested legally any further.  But the company teamed up with some other groups and brought it to attention of their Congressional representative.  The agency decided to back off and went with a different acquisition strategy at conclusion of the initial task orders.

Interesting approach.   

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...