Government Contract Attorney Lawyers Bid Protest Claims Disputes Changes REA Terminations Delays: Government Contract Attorneys Lawyers Protests Claims Protests Disputes

Court Sanctions Government For Backdating Market Analysis

On April 25, 2017, the Court of Federal Claims released a decision in Gallup, Inc. v. The United States, No. 16-1656C, which sanctioned the United States Special Operations Command ("Government") for providing a key document in the administrative record that was backdated.  The document contained a market analysis to justify setting aside the procurement for small businesses.  The Government indicated that this document was created before the solicitation was issued for public bid.  The Contracting Officer also provided a "Certification of Contracting Office" affirming that "after careful review, the following documents constitute the record of administrative actions."

It turned out that the Market Analysis was created after the protest was filed, but backdated to cover this up.  The Contracting Officer admitted this was a "huge mistake" to the Court:

[W]hen I received the pre-filing notice about December 13th, I said, uh-oh, if [Gallup] really file[s], I need to make sure my record [is] in good shape. […] I realized I had the [chart] with nothing that consolidated that or nothing that summarized that and I prepared the [Memorandum for Record] at that time, sir. I now know that [] was a huge mistake and I am deeply sorry that this has come to this. . . . [T]he timing was wrong.

The Court sanctioned the Government for providing a inaccurate and misleading document in the administrative record.  The Government did not oppose the appropriateness of sanctions and told the Court it will take action to prevent this from happening again, promising to "issue guidance to its contracting office emphasizing the importance of completeness, accuracy, and integrity of preparing records and accompanying certifications."

The Contracting Officer certainly learned her lesson here.

Contractor’s Failure to Redact its Proposal was a Fatal Mistake

On January 3, 2017, the Court of Federal Claims denied a bid protest over a contractor's failure to provide a redacted copy of its proposal.  The solicitation required offerors to redact their names and proposed subcontractors.  The purpose of redacting was to promote an unbiased technical evaluation of proposals.  The contractor argued that its failure to redact was a "minor informality or irregularity" that the Government should have waived.  The Court held that unlike FAR Part 14 sealed bidding procedures, in commercial item and negotiated procurements, the Government has the discretion to waive, or not to waive, minor informalities. See, FAR 52.212-1(g) which states that the agency "may ... waive informalities and irregularities in offers received."  Additionally, the Court found that the failure to redact was not a minor oversight, but "deliberate and designed to give it an advantage (or at least to remove some perceived disadvantage)."

Lesson Learned:  The Government does not have to waive minor informalities if the procurement is not administered under FAR Part 14, Sealed Bidding.  Strictly follow a solicitation's redaction instructions.

Strategic Business Solutions, Inc. v. United States of America, United States Court of Federal Claims, No. 16-81C (January 3, 2017)


GAO Dismisses Protest as Untimely

The GAO dismissed a protest as untimely because the Protestor failed to file comments to the Agency Report within 10 days. Although the Protestor emailed his comments to the GAO lawyer handling the case within 10 days, the GAO held that this did not count. The GAO indicated that the Protestor should have filed its comments at pursuant to Rule 21.0(f).

This is a harsh result, in my opinion.  After all, the GAO lawyer received the comments on time.  The lesson learned here is to email your protest comments to and the GAO attorney handling the case.

GLF Consulting, B-412316.3 (December 21, 2016)


GAO Gets Back Jurisdiction to Decide Civilian Task and Delivery Orders Valued Above $10M

For a brief period of time this year, the GAO lost jurisdiction to hear protests over civilian task and delivery orders above $10M. This left contractors with no remedy to challenge the manner in which the Government evaluated proposals for award of civilian task or delivery orders. Thankfully, this jurisdiction has been restored by the 2017 National Defense Authorization Act.  On the other hand, the Act increases the jurisdictional threshold for non-civilian task orders from $10M to $25M, which will narrow the GAO's jurisdiction involving task/delivery orders for military procurements.

2017 National Defense Authorization Act

Proposal’s Exception to Solicitation Requirements was a Fatal Mistake

In the GAO protest of Kratos Defense & Rocket Support Services, Inc. (August 23, 2016) the GAO sustained a protest where a proposal stated that it assumed the Government would provide on-site work space and equipment, even though during the solicitation process the Government said that such support would not be provided. The GAO noted that, as a matter of law, “a proposal that takes exception to a solicitation’s material terms and conditions should be considered unacceptable and may not form the basis for an award. Material terms of a solicitation are those which affect the price, quantity, quality, or delivery of the goods or services being provided.”

The lesson learned here is never take exception to a solicitation term in your proposal.  This could be a fatal mistake if it pertains to “price, quantity, or delivery of goods or services.”

Government Past Performance Evaluation Improper


In Patricio Enterprises Inc., B-412740 et al (May 26, 2016) the GAO held that the Government’s past performance evaluation was improper.  Offerors were required to submit up to five (5) past performance references. The protestor, Patricio, submitted five past performance references. Two of them receiving the highest ratings, “Very Relevant/Exceptional.”   The other three received lower ratings, including “relevant” as opposed to “very relevant.”  Based on these ratings, Patricio received on overall past performance evaluation of “Satisfactory Confidence.”  The awardee received a higher past performance evaluation of “Substantial Confidence.”

                            GID                                                    Patricio

Reference 1          Very Relevant/Exceptional              Very Relevant/Exceptional

Reference 2         Very Relevant/Exceptional              Very Relevant/Exceptional

Reference 3         Not Relevant                                  Very Relevant/Very Good

Reference 4         [none]                                           Relevant/Exceptional

Reference 5         [none]                                           Relevant/Exceptional

Overall Rating:   Substantial Confidence                     Satisfactory Confidence

In explaining why Patricio got a “Satisfactory Confidence” rating, the Government stated:

The Past Performance Evaluation Team decided that a SUBSTANTIAL performance confidence assessment would be warranted when ALL relevant past performance was determined to be VERY RELEVANT with EXCEPTIONAL quality ratings. Any other combination of relevancy and quality would result in a SATISFACTORY (or lower) performance confidence assessment.

Based on the above methodology, Patricio was penalized for providing more than two past performance evaluations.  If Patricio had just submitted References 1 and 2, it would have received the highest overall rating for past performance. The GAO held that this was unfair and sustained the protest.

The GAO noted that “the agency’s mechanical evaluation of past performance was unreasonable where the result was that additional relevant past performance references with exceptional and very good quality resulted in a downgraded past performance rating.  This holding is consistent with the GAO prior holding in Olympus Bldg. Servs., Inc., B-285351 (August 17, 2000), where the Government’s mechanical formula for scoring experience unreasonably penalized an offeror for including extra, less relevant references in addition to relevant ones.

Proposal Did Not Violate Limitation on Subcontracting Rule

In Express Medical Transporters, Inc., B-412692 (April 20, 2016), the GAO denied a protest alleging that a proposal was technically unacceptable for the alleged failure to comply with the limitation on subcontracting rule.  The VA issued a solicitation for patient transportation services.  It was set aside for small businesses.  The limitation on subcontracting regulation required that at least 50% of the cost of services be performed by the prime contractor.

The challenged proposal made several references to "independent contractors" who would serve as drivers.  The proposal also referred to employee drivers.  The GAO held that there is nothing wrong with subcontracting out work to independent contractors.  And most importantly, the proposal did not clearly indicate that the contractor did not plan on performing at least 50% of the services itself. The GAO therefore denied the protest.

This case illustrates the importance of not only complying with the limitation of subcontracting requirement, but also drafting a proposal that does not take exception to this rule.  In reaching its decision, among other items, the GAO pointed to the following proposal statements as proof that the contractor intended on complying with the limitation on subcontracting requirement:

  • We have a full and complete understanding of the VA transportation system and the requirements of the [RFP].
  • The Contract Compliance Manager position ensures that contract performance expectations, relevant FAR regulations identified in the contract, and general government regulations are adhered to. The compliance manager works closely with the contracting officer and their technical representative (COTR) to ensure that all contract provisions are met.

You may want to consider adding general statements of compliance with the Federal Acquisition Regulations in your proposal too.  Even better, state that you understand the Limitation of Subcontracting requirements and will comply with this rule.


GAO Finds Solicitation for Waste Management Services Defective

In  Red River Waste Solutions, LP, B-411760.2 (January 20, 2016), the GAO upheld Red River’s protest that waste management solicitation pricing evaluation should not be priced on a “per ton” basis because it was unclear whether this is in line with “customary commercial practices.”

FAR requires that contracts for the acquisition of commercial items “shall, to the maximum extent practicable, include only those clauses . . . determined to be consistent with customary commercial practice.” FAR § 12.301(a)(2). In establishing acquisitions for commercial items, FAR § 10.002(b) requires market research by the acquiring agency to address, among other things, customary practices regarding the provision of the commercial items.  Consistent with this approach, FAR § 12.302(c) bars the tailoring of solicitations for commercial items in a manner inconsistent with customary commercial practice unless a waiver is approved in accordance with agency procedures. Verizon Wireless, B-406854, B-406854.2, Sept. 17, 2012, 2012 CPD ¶ 260 at 5-6.  .  .  .

The GAO rejected the agency’s market research in the Red River Waste Solutions because:

  • Fort Polk’s review of other Army refuse contracts was irrelevant because Government Contracts do not reflect customary commercial practices;
  • In response to a Sources Sought Notice published on the Federal Business Opportunities website, four of seven responses suggested the CLIN structure be monthly, and three (3) respondents had no comments to tonnage-based pricing; and
  • Fort Polk did not document its contact with an upstate New York refuse company representative, or the basis for his opinion that tonnage-based pricing was suitable.

In view of these defects, GAO accepted protester’s argument that such contracts are not generally priced on a per-ton basis because costs are driven by the number, frequency, and distance between stops, not by the amount, or weight, of refuse collected during such stops. Accordingly, GAO required the agency to (1) conduct adequately documented market research regarding per-ton pricing in commercial refuse contracts; (2) obtain a properly executed waiver of the FAR requirements; or (3) revise the solicitation to eliminate per-ton pricing.

Red River Waste Solutions, LP, B-411760.2 (January 20, 2016)

GAO Protest Untimely Even Though Filed Within 10 Days After Debriefing

In Protect the Force, Inc.--Reconsideration File: B-411897.3 (September 30, 2015)the Government notified offerors that it would change a CLINS' maximum quantity to a maximum dollar amount instead. The agency asked offerors to confirm within 5 hours whether their previous prices were still valid, which the protestor did.

The protestor requested a debriefing and filed a protest within 10 days thereafter. The Government moved to dismiss the protest because it was filed more than 10 days after the Government notified offerors of the CLIN change. The protestor countered that the debriefing regulation permitted it to wait and file the protest within 10 days after the debriefing.

The GAO dismissed the protest as untimely even though it was filed within 10 days after the debriefing. The GAO held that the protest challenged the “ground rules” of the solicitation and that the protestor should have filed within 10 days after the Government notified it of this change. The GAO noted that early filing of a protest challenging the terms of a solicitation promotes fundamental fairness in the competitive process and is consistent with its prior decisions:

In conclusion, we recognize now--and recognized in our 2008 Armorworks decision--that our bid protest regulations might be read to permit timely filing of an issue involving an alleged solicitation impropriety until up to 10 days after a required debriefing. Nonetheless, we find that such a conclusion is inconsistent with the intended meaning of our regulation; inconsistent with our prior decision precisely on point; and inconsistent with the principles enunciated by the Federal Circuit in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313-14 (Fed. Cir. 2007), which recognized that requiring the early filing of challenges to alleged solicitation improprieties would promote fundamental fairness in the competitive process by preventing an offeror from taking advantage of an effort to restart the procurement process, potentially armed with increased knowledge of its competitors’ position or information. Accordingly, we conclude that the requester has failed to show that our prior decision contains an error of fact or law.

The lesson learned in this GAO protest is to always file a protest challenging the solicitation terms before proposals are due.  For changes to the solicitations made after proposals are submitted, the protest must be filed within 10 days of the change.

Certification Not Required Prior to Award

In the protest of Bode Aviation, Inc., B-411265 (June 26, 2015), the protestor argued that the solicitation required that all bidders "have certification for the contract aircraft at the time of the bid proposal.” The GAO disagreed.

The GAO began with the general rule that, unless the solicitation requires bidders to provide proof of qualifications or certifications prior to award, "such requirements constitute performance provisions rather than preconditions for award." In this case, the solicitation contained the following provision regarding certification:

Contractors shall hold a current Federal Aviation Administration (FAA) Air Carrier or Operating Certificate. Aircraft offered shall be listed by make, model, series, and registration number on the Operator’s 14 CFR [Code of Federal Regulations] 135 Operating Certificate.

The GAO found that the above clause did not mean the bidder had to have a certificate at the time it submitted its proposal, only that the bidder would  need to be certified at the time of contract performance.  The GAO therefore denied the protest because it does not have jurisdiction over post-award performance issues.

This case demonstrates that the solicitation must clearly state that a certification requirement must exist at the time of proposal submission; otherwise, it will be construed as a requirement that can be subsequently satisfied after contract award.

If you are facing an issue over certification, the answer depends on the particular language in your solicitation.  Read it carefully.


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