by Robert Antonio

July 14, 2008

One of the inside jokes we had as auditors for the Government Accountability Office (GAO) was the phrase:  "We're Here To Help."  Sometimes, the victim agency would spring that phrase on us when we first met with agency officials to announce our audit.  Maybe it wasn't so inside after all.  If you are involved during the issuance of solicitations or if you are involved during the source selection process, you may believe that GAO's Procurement Law attorneys are less helpful than the auditors.  If you do, you are wrong.  First, the Procurement Law attorneys know something about their subject area.  Second, in many of their decisions, they provide instruction in their rules of contracting.¹  Quite often they repeat the same rule over and over again in similar decisions.  Often they add to the rule.  That is what this article is about--helping you identify those rules.

For years, I have been posting excerpts from GAO's bid protest decisions with links to the decisions on Wifcon.com's Protests page.²  Additionally, I have used the Federal Acquisition Regulation (FAR) as the Table Of Contents.³  The reason for this is to group similar decisions together.  Similar decisions often provide a repetition of a GAO rule on a subject and provide you with a good basis to use it.  Although, the placement of decisions according to the FAR sometimes is subjective, I have tried my best to be consistent.  Additionally, you may see that a GAO rule supports a FAR section or closely coincides with it.  In effect, the FAR, through GAO decisions, is given life.

Whether you are a federal employee involved in contracting, a contractor employee involved in contracting, or an employee of a future offeror, you should be using these pages.  Did you say there are too many GAO decisions and they are too hard to understand?  That is not true.  First, GAO has been issuing less than 1 sustained or denied decision a day for the last 9 years.  Additionally, GAO's decisions are the easiest decisions to read.

The issue is whether you want to be at the top echelon of contracting professionals or whether you want to be referred to as a "journeyman."  I've never been comfortable with the word "journeyman" and no user of Wifcon.com should either.  Not convinced yet, well let's try this.

• You are a government contract specialist involved in a source selection.  Based on your analysis of bid protest decisions, you notice something in the process that could lead to a bid protest.  You talk to the source selection team about the issue and provide them with support for your concern.  The head of the source selection authority looks at you and says:  "You may have prevented months of delay in awarding the contract."
   
• You are a contractor employee involved in contracting.  Your firm is involved in a competition and you notice something in the process that draws your attention.  You go back to your computer and go through your analysis of bid protest decisions.  Ah-ha, you found what you are looking for and bring it to the attention of your firm.

This article is not going to make you a hero.  However, it will give you a start, if you are not using bid protest decisions already.  Additionally, it may take you some time and practice at it but it is worth it.  Our first step is to look at a decision and to identify a rule.  Below is a recent decision.  The left column shows the sections of the decision.  The right column explains the sections and labels it as either:  "Decision Specific" or "The Rule And Its Application To The Specific Case."  We are after the latter.

SECTIONS OF A GAO BID PROTEST DECISION

The above is one rule in one decision.  However, GAO often states its rules repeatedly in similar decisions.  These similar decisions may include a statement of the "rule" and some additional rules related to the overarching rule.  Yes, that is why bid protest decisions are listed according to the FAR.  You can identify rules from similar decisions and add them to your knowledge base.

A FEW RULES ON CANCELING A REQUEST FOR QUOTATION 

By using more than one decision under a FAR section, it is fairly easy to develop a number of rules for a specific issue.  In Tables 1 and 2, we will do just that.

Table 1, shows a set of rules dealing with cancellation of a Request for Quotation (RFQ) from three decisions.⁴

Table 1:  Rules on Cancellation of RFQs From Three Decisions

Overarching Rule: A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. Example of Reasonable Basis A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs, or where there is a material increase in the services needed to satisfy the agency’s requirements.   A reasonable basis to cancel exists when a new solicitation presents the potential for increased competition or cost savings. Example of When A Solicitation Can Be Cancelled an agency may cancel a RFQ no matter when the information precipitating the cancellation first arises, even if it is not until quotations have been submitted and evaluated and   may cancel no matter when the information precipitating the cancellation first arises, even if it is not until offers (or, as here, quotations) have been submitted and evaluated.

 

Table 2, shows pertinent parts of the "Analysis" sections of the 3 decisions and identifies the rules that are shown in table 1.

Table 2:  Developing Rules From GAO Decisions
Decision Excerpt	Rule & Application To Case
A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. Surgi-Textile, B-289370, Feb. 7, 2002, 2002 CPD para. 38 at 2. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs, or where there is a material increase in the services needed to satisfy the agency’s requirements; in such cases, cancellation of the solicitation and issuance of a revised solicitation is appropriate. Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD para. 141 at 3.  (Deva & Associates PC, B-309972.3, April 29, 2008, p. 3)	Rule A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. Applied To Case A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs, or where there is a material increase in the services needed to satisfy the agency’s requirements; in such cases, cancellation of the solicitation and issuance of a revised solicitation is appropriate.
A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ; in this regard, so long as there is a reasonable basis for doing so, an agency may cancel a RFQ no matter when the information precipitating the cancellation first arises, even if it is not until quotations have been submitted and evaluated. Quality Tech., Inc., B-292883.2, Jan. 21, 2004, 2004 CPD para. 29 at 2-3; DataTrak Consulting, Inc., B-292502 et al., Sept. 26, 2003, 2003 CPD para. 169 at 5. (National Conference Services, Inc. and Direct Marketing Productions, Inc. d/b/a Technology Forums, Inc., B-311137, April 25, 2008) (pdf)	Rule A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ; Applied To Case in this regard, so long as there is a reasonable basis for doing so, an agency may cancel a RFQ no matter when the information precipitating the cancellation first arises, even if it is not until quotations have been submitted and evaluated.
A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ, Surgi-Textile, B-289370, Feb. 7, 2002, 2002 CPD para. 38 at 2, and may cancel no matter when the information precipitating the cancellation first arises, even if it is not until offers (or, as here, quotations) have been submitted and evaluated. A-Tek, Inc., B-286967, Mar. 22, 2001, 2001 CPD para. 57 at 2-3. A reasonable basis to cancel exists when a new solicitation presents the potential for increased competition or cost savings. Robertson Leasing Corp., B-275152, Jan. 27, 1997, 97-1 CPD para. 49 at 3. Therefore, cancellation of a solicitation is proper where the solicitation materially overstates the agency’s requirements and the agency desires to obtain enhanced competition by relaxing the requirements. Id. Here, Para Scientific’s own argument that its alternative products were technically equal to the agency’s requirements supports the reasonableness of the agency’s decision to cancel the solicitations, given that the solicitations were written as brand-name only requirements. Because the record reflects that the solicitations’ brand-name only requirements may have been overly restrictive, and because the agency identified multiple other flaws in the two solicitations, we find that the agency’s decision to cancel the solicitations was proper. (Para Scientific Company, B-310742.2; B-310903, February 14, 2008) (pdf)	Rule A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ, Applied To Case and may cancel no matter when the information precipitating the cancellation first arises, even if it is not until offers (or, as here, quotations) have been submitted and evaluated. A reasonable basis to cancel exists when a new solicitation presents the potential for increased competition or cost savings.
Source:  Wifcon.com's Bid Protest Decisions—"Textbook-on-a-Page"—FAR 15.206 (e): Cancellation of solicitation.

 

WHAT IS THE "ACID TEST" TO DETERMINE IF DISCUSSIONS WERE HELD?

If you looked at FAR 15.206(e), you may have noticed that GAO's rules are similar to this bit of the FAR.  Well, remember, much of the process you see in the FAR is based on GAO bid protest decisions. 

In Tables 3 and 4, we will work with the difference between clarification and discussions. Table 3 shows GAO's "Acid Test" for discussions. 

In Table 4, GAO provides sections of the FAR and its previous decisions to explain its reasoning.  Again, GAO gives life to the FAR and adds to it.

 

Table 4:  Two Decisions On The "Acid Test"
Decision Excerpt	Rule & Application To Case
The protester argues that the agency’s request for clarification of the basis for the offerors’ rebate amounts constituted discussions because this information was necessary to determine their proposed prices, and that the SBA’s initiation of discussions in one area obligated the agency to conduct discussions regarding all significant weaknesses in offerors’ proposals.  As previously noted, the contracting officer asked both offerors to clarify whether their rebate amounts were on a monthly or an annual basis, but did not otherwise communicate with them regarding the content of their proposals. The contracting officer sought clarification of the basis for the rebate amounts after being advised by the chairperson of the technical evaluation team that since the RFP included language providing that “[t]he rebate will be made to SBA monthly,” RFP at 3, the rebate amounts entered by the offerors on their price schedules should be considered monthly amounts. The contracting officer apparently questioned whether the two offerors had indeed interpreted the RFP in this manner.  Section 15.306 of the FAR describes a spectrum of exchanges that may take place between an agency and an offeror during negotiated procurements. Clarifications are “limited exchanges” between the agency and offerors that may allow offerors to clarify certain aspects of proposals or to resolve minor or clerical errors. FAR sect. 15.306(a)(2). Discussions, on the other hand, occur when an agency indicates to an offeror significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to enhance materially the proposal’s potential for award. FAR sect. 15.306(d)(3); IPlus, Inc., B-298020, B‑298020.2, June 5, 2006, 2006 CPD para. 90 at 3. The “acid test” for deciding whether discussions have been held is whether it can be said that an offeror was provided the opportunity to modify or revise its proposal Computer Sciences Corp. et al., B-298494.2 et al., May 10, 2007, 2007 CPD para. 103 at 9.  (Colson Services Corporation, B-310971; B-310971.2; B-310971.3, March 21, 2008) (pdf)	The “acid test” for deciding whether discussions have been held is whether it can be said that an offeror was provided the opportunity to modify or revise its proposal Computer Sciences Corp. et al., B-298494.2 et al., May 10, 2007, 2007 CPD para. 103 at 9.
FAR sect. 15.306 describes a spectrum of exchanges that may take place between an agency and an offeror during negotiated procurements. Clarifications are “limited exchanges” between the agency and offerors that may allow offerors to clarify certain aspects of proposals or to resolve minor or clerical errors. FAR sect. 15.306(a)(2). Discussions, on the other hand, occur when an agency indicates to an offeror significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to enhance materially the proposal’s potential for award. FAR sect. 15.306(d)(3). When an agency conducts discussions with one offeror, it must conduct discussions with all other offerors in the competitive range. FAR sect. 15.305(d)(1). The “acid test” for deciding whether discussions have been held is whether it can be said that an offeror was provided the opportunity to revise or modify its proposal. Park Tower Mgmt. Ltd., B-295589, B-295589.2, Mar. 22, 2005, 2005 CPD para. 77 at 7; Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CDP para. 79 at 5. The substance of Washington’s proposal regarding the coarse ground beef requirement, i.e. shelf life from pack, price, and delivery, remained unchanged. Instead, the agency suspected, and Washington confirmed, that the term “case ready” had been misapplied to the proposal item describing Washington’s commitment to meet the requirements for “coarse” ground beef. These exchanges were clarifications and not discussions, as they were “limited exchanges” that resolved a minor or clerical error. Washington was not given an opportunity to materially change its proposal because it was clear that the terms and details of the proposal for coarse ground beef did not change, but rather the label applied to those terms and details was corrected. Because all of the evidence in the proposal as submitted indicated that this was a mistaken label, we conclude that the agency reasonably inquired and received clarification from Washington. (National Beef Packing Company, B-296534, September 1, 2005) (pdf)	The “acid test” for deciding whether discussions have been held is whether it can be said that an offeror was provided the opportunity to revise or modify its proposal. Park Tower Mgmt. Ltd., B-295589, B-295589.2, Mar. 22, 2005, 2005 CPD para. 77 at 7; Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CDP para. 79 at 5.
Source:  Wifcon.com's Bid Protest Decisions—"Textbook-on-a-Page"—FAR 15.306 (a): Clarifications and award without discussions.

 

Two examples should be enough to get you started.  However, there are some caveats to remember.

THINGS CHANGE

One thing that you need to remember is that things change.  For example, law and regulations can change that have an effect on a line of protest decisions.  For example, in May 2003, OMB Circular A-76, Performance of Commercial Activities was revised.  As a result, decisions made under the earlier Circular may no longer be appropriate under the current Circular.  Additionally, GAO may change its own bid protest regulations.  For example, in 2002, GAO changed its protest rules in regard to responsibility determinations.  See below.

Our Office generally will not consider a protest challenging an affirmative determination of responsibility, except under limited exceptions, because the determination that a particular contractor is capable of performing a contract is largely committed to the contracting officer’s (CO) discretion. 4 C.F.R. § 21.5(c) (2004). We recently revised our Regulations in this regard to add as a specified exception protests “that identify evidence raising serious concerns that, in reaching a particular responsibility determination, the [CO] unreasonably failed to consider available relevant information or otherwise violated statute or regulation.” Id. We explained in the preamble to the revision that it was “intended to encompass protests where, for example, the protest includes specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. 67 Fed. Reg. 79,833, 79,834 (2002); see Verestar Gov’t Servs. Group, B‑291854, B-291854.2, Apr. 3, 2003, 2003 CPD ¶ 68 at 4. (Wild Building Contractors, Inc., B-293829, June 17, 2004) (pdf) (italics provided)

A COURT IS A COURT IS A COURT

GAO's Procurement Law Group is not a court.  However, it does have its own authority under law to hear protests.  On the other hand, the Court of Federal Claims (COFC) is a court and has its own legal authority to hear protests.⁵

Our purpose here is not to discuss the differences between GAO and the COFC.  Our purpose is simply to provide a warning.  Remember, both forums have different rules and different authorities.  Although the COFC is not bound by any GAO decision, it may consider one in the development of its own.  For example, see how the COFC treats GAO decisions in the following excerpt.

Absent strong evidence that Maratech’s prices are so low that it is unlikely that the contractor can perform the contract at the offered price, the plaintiff is not likely to succeed in showing that the responsibility determination in this case was arbitrary and capricious. See id.; Government Contracts Consultants, B-294335, 2004 C.P.D. ¶ 202 (Sept. 22, 2004) (holding in similar circumstances before the GAO that a responsibility determination will not be set aside absent evidence that the contracting officer failed to consider available relevant evidence or violated a statute or regulation). While the GAO’s standard is obviously not binding on this court, it provides useful guidance in determining the circumstances in which an award should be set aside when a protestor questions a putative awardee’s prices as being too low. In view of the foregoing, the court finds that the allegations in the present complaint, even if proved, do not establish that the Air Force’s decision was arbitrary or capricious in conducting its price analysis or finding that Maratech was responsible. (CC Distributors, Inc., v. U. S.,  No. 05-571C, June 15, 2005) (pdf)  (italics provided)

In short, it is safer to apply GAO rules to GAO decisions.  One case illustrates this point clearly.  It is Geo-Seis Helicopters., v. U. S. and Presidential Airways, Inc., No. 07-155C, July 13, 2007.  Excerpts from that COFC decisions can be viewed here.

² In addition to GAO decisions, Wifcon.com's Protest pages also includes decisions of the Court of Federal Claims and the Court of Appeals for the Federal Circuit.  If the U. S. Supreme Court rules on an issue, its decision will be added.

³ Although the FAR is used as the main table of contents, contents for OMB Circular A-76 and GAO's Bid Protest Regulations also are used.

⁵ For purposes of this article, we'll forget about District Courts.