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General Services Administration; SBD Alliant, LLC--Reconsideration and Modification of Remedy B-417126.5, B-417126.6: Aug 23, 2017.

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I intended to post this as a separate topic because it is unique.  However, I forgot.  It was mentioned in another topic and I will try to copy that post below .  You can think post about it, if you wish.

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Agency and awardee requests for reconsideration of a prior sustain decision are denied because the analysis and conclusions reached in the prior decision did not contain an error of law, or consideration of facts that were not available to the parties during the course of the prior protest. Instead, the arguments made in the underlying protest, by the protester, the agency, and the awardee, were based on a requirement that was deleted from the solicitation by an amendment, but the agency now advises that it did not provide our Office with the complete text of the amendment, and instead omitted the page which made the change because representatives of the agency forgot about the change. In addition, there is no dispute that the complete text of the amendment was available to all parties during the course of the procurement, or that the parties pursued and defended the protest based on the incomplete text of the amendment. Since the legal basis for our decision stands, we do not change the underlying analysis, but since the agency had already amended the solicitation prior to the recommendation in our prior decision, we modify the prior decision to withdraw our previous recommendation that the agency reevaluate these proposals and make a new selection decision. We also withdraw the recommendation that the protester be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys’ fees.

 

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I think it's important to point out that that the contractor -- not the contracting officer -- is responsible for determining whether its contract is subject to SCA. In my experience, too many contractors rely on the CO attaching a wage determination to the contract as an indication of whether or not SCA applies. That can be an expensive mistake.

Originally posted by Joel Hoffman

Here is an interesting example where, in a GAO protest, the protestor protested on the basis of evaluation criteria that had been deleted by an amendment before the evaluation and selection decision.  Both the government and (winner) intervenor defended the evaluation without realizing that the specifically protested criteria had been deleted.  Thus there would have been no basis for the protest.    

The Government’s response to the protest had omitted the page in the Amendment that deleted the restrictive evaluation language.

So, GAO had sustained the protest based upon the  pre-amendment requirements. GAO had recommended re-evaluation as well as reimbursement of protestors costs to file the protest. 

Government and intervenor requested re-consideration upon realizing that the Amendment had already deleted the restriction that protestor said had been violated. Government provided the second page of the amendment that should have been part of the initial protest response.

All three parties had previous knowledge of the actual, amended evaluation criteria but failed to realize in their arguments that there had been no violation. Upon reconsideration, the GAO said that its initial decision was correct, based upon the facts in the protest. But GAO withdrew its recommendations for re-evaluation of proposals and reimbursement of the protestor’s costs. 

A whole protest, defense by both the government and intervenor and decision based upon the wrong solicitation requirements. 

Sheesh!!  Total waste of everybody’s time and resources as a result of NOBODY involved in the protest knowing  the solicitation requirements. 

Wonder how the KO, who issued the amendment and the source selection team who evaluated the proposals didn’t  discover that the lawyers were defending the wrong terms of the solicitation and arguing the wrong (made up??) justification for the evaluation. 

https://www.gao.gov/assets/710/701097.pdf

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How embarrassing is that to all three parties??? Ding Dong School...

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that's worse than that case where contractor and government squabbled through litigation about a request for equitable adjustment (REA)...PepeTheFrog recalls it went to the Court of Federal Claims, after the contracting officer denied the REA...Court of Federal Claims judge pointed out that everyone was wrong because this was not a claim and therefore not subject to the Court of Federal Claim's jurisdiction

 

anyone remember this case and have the citation? 

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Yes, I remember.

It seemed contradict case law popular a few years ago. It seemed that REA’s were being considered claims, even if not in dispute, unless they require a contractor certification to be considered a claim. 

 

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If you think this was bad, you should track the history of the A-21 litigation, particularly the way it ended at the Supreme Court.

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