PROTESTS SUSTAINED by pengxiuhui

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									NCMA 25th Annual Government Contract Management Conference               December 4-5, 2006
21st Century Federal Contract Management: Challenges and Opportunities   Sheraton Premiere at Tysons Corner
                                                                         Vienna, VA
                                                                                                              1   1
GAO PROTESTS SUSTAINED

        Breakout Session # 408
          D. Anthony Weeks, J.D.
              Attorney-at-Law
                     &
  Charlene Duncan, Sr. Contracts Specialist
    Pacific Northwest National Laboratory
          Wednesday, April 25, 2007
             10:40 – 11:40 A.M.


                                              2
                   Bid Protest Statistics for Fiscal Years 2001-2005
                                        FY 2005           FY 2004          FY 2003          FY 2002           FY 2001

    Cases Filed                      1,356 (down 9%1)   1,485 (up 10%)   1,352 (up 12%)   1,204 (up 5%)    1,146 (down 6%)

    Cases Closed                          1,341             1,405            1,244            1,133              1,098
    Merit (Sustain + Deny)
                                           306               365              290             256                311
         Decisions

    Number of Sustains                      71                75               50              41                 66

    Sustain Rate                           23%               21%              17%             16%                21%

    Effectiveness Rate (reported)2         37%               34%              33%             33%                33%

    ADR3 (cases used)                      103               123              120              145               150

    ADR Success Rate4                      91%               91%              92%             84%                84%


    Hearings                          8% (41 cases)     9% (56 cases)    13% (74 cases)   5% (23 cases)   12% (63 cases)

1From the prior fiscal year.                                2005 GAO Bid Protest Annual Report to the Congress
2 Based on a protester's obtaining some form of relief from the agency, as reported to GAO.
3 Alternative Dispute Resolution.
4 Percentage resolved without a formal GAO decision.



                                                                                                                             3
               Nature of Issues


• Federal Supply          • Scope of Discussions
  Schedule Orders
                          • Past Performance
• Sole Source Awards
                          • Proposal Evaluations
• Procedural
  Irregularities          • Recovery of Protest
• Organizational            Costs
  Conflicts of Interest
  (OCI)



                                                   4
   Federal Supply Schedule Orders

• Matter of: Wyse Technology, Inc., B-
  297454, 2006 Comp. Gen. Proc. Dec. P23,
  January 24, 2006
  – Unless agency has reason to believe otherwise it may rely
    upon offeror’s reps. & certs.
  – Failure to ―expressly‖ execute offeror’s reps. & certs.
    requires rejection as non-responsive offer.
  – Protests alleging that a Brand Name does not comply with
    solicitation requirements may be filed after award.




                                                                5
Federal Supply Schedule Orders

• Matter of: Tarheel Specialties, Inc., B-
 298197, 298197.2, July 17, 2006
  – The Agency identified required services
    specifically and with particularity
  – Contracting Officer sought to acquire services
    from the GSA Federal Supply Schedule (FSS)
  – The specifically identified services were not within
    the vender’s FSS contract with GSA.


                                                           6
Federal Supply Schedule Orders

• Matter of: Advanced Technology Systems,
 Inc., B-296493.6, October 6, 2006
  – FAR 8.405-2(d): ―the [o]rdering activity is responsible for
    considering the level of effort and the mix of labor proposed
    to perform a specific task being ordered‖
  – Protest was sustained when the agency failed to sufficiently
    document its confidence level that the Awardee’s quote
    reflected a reasonable price.
  – SEE: GAO Audit Report, Contract Management: Not
    Following Procedures Undermines Best Pricing Under
    GSA’s Schedule (GAO-01-125, Nov. 2000); see: 68 Fed.
    Reg. 19,294, 19,296 (Apr. 18, 2003)



                                                                    7
             Sole Source Awards

• Matter of: M.D. Thompson Consulting,
 LLC; PMTech, Inc., B-297616, B-297616.2,
 2006 Comp. Gen. Proc. Dec. P41, February
 14, 2006
  – A synopsis must provide an ―accurate description‖ 41 U.S.C.
    416(b); 15 U.S.C. 637(f)
  – Description of the supplies or services must be "clear and
    concise." FAR 5.207(c) & (d).
  – A synopsis must provide a meaningful opportunity to
    demonstrate their ability to provide what the agency seeks to
    purchase.



                                                                    8
              Sole Source Awards

• Matter of: Bausch & Lomb, Inc., B-298444,
 September 21, 2006
  – When an agency utilizes other than competitive procedures
    based on unusual and compelling urgency, the agency,
    ―shall request offers from as many potential sources as is
    practicable under the circumstances.‖
  – Under no circumstances may noncompetitive procedures be
    used due to lack of advanced planning by contracting
    officials or concerns related to funds available to the agency.




                                                                      9
           Sole Source Awards

• Matter of: Matter of: eFedBudget
 Corp.; B-298627, November 15, 2006
  – Agencies should consider purchasing additional
    rights to proprietary software in order to
    subsequently promote competition.
  – Agencies must consider whether the costs
    associated with such a purchase to increase
    competition, or some other alternative, outweighs
    the anticipated benefits of competition.


                                                        10
       Procurement Irregularities

• Matter of: Crane & Company, Inc., B-
 297398 2006 Comp. Gen Proc. Dec.
 P22; January 18, 2006
  – Solicitation may not contemplate specification
    specifically prohibited by statute.
  – An agency may engage in multiyear contracting
    only where the agency has (1) no-year funds
    covering the entire term of the contract or (2)
    specific authority.

                                                      11
        Procurement Irregularities

• Matter of: MMI-Federal Marketing Service
  Corp., B-297537, 2006 Comp. Gen. Proc.
  Dec. P38, February 8, 2006
  • Once put on notice, agency record must reflect that agency
    affirmatively found compliance with material solicitation
    requirement.
  • Protest is sustained where the agency relies on inadequate
    information to satisfy concerns regarding offeror’s
    compliance with solicitation requirements.




                                                                 12
         Procurement Irregularities

• Matter of: Fabritech, Inc., B-298247, B-
  298247.2, 2006 Comp. Gen. Proc. Dec. P.
  112, July 27, 2006
  – Evaluation of offeror’s proposed approach (qualification
    requirement) must be distinguished from offeror’s capability
    to perform (responsibility).
  – If agency intends to insert a ―qualification requirement‖ the
    FAR 52.209-1 must be inserted into solicitation.
  – SBA makes all small business ―responsibility‖
    determinations.



                                                                    13
       Procurement Irregularities

• Matter of: MadahCom, Inc., B-298277,
 2006 Comp. Gen. Proc. Dec. 119,
 August 7, 2006
  – Where a solicitation is challenged as unduly
    restrictive of competition, the agency has the
    responsibility of establishing that the specification
    is reasonably necessary to meet its needs.




                                                            14
 Organizational Conflict of Interest (OCI)

• Matter of: Alion Science & Technology
 Corporation, B-297022.3, January 9, 2006
  – ―Impaired Objectivity‖ OCI is created when a contractor’s
    judgment and objectivity may be impaired due to the fact that
    contract performance has the potential to affect other
    financial interests of the contractor.
  – OCI Mitigation Plan requires identification of OCI activities
    prior to performance; that they be rationally segregated; and
    that fire-walled subcontractor be capable of successfully
    performing the identified OCI activities.




                                                                    15
 Organizational Conflict of Interest (OCI)

• Matter of: Alion Science & Technology
 Corporation, B-297342, January 9, 2006
  – If the nature of the contract activities, both within tasks and
    between tasks, are so interrelated that it does not appear
    that the agency or offeror can expect to meaningfully (1)
    identify potential conflicts prior to the time the specific
    activities are performed, (2) rationally segregate such
    conflicted portions of the contract, and (3) successfully
    perform those requirements with ―fire walled‖ subcontractors,
    then the OCI may not be mitigated.




                                                                      16
    Organizational Conflict of Interest (OCI)

•   Matter of: Greenleaf Construction Company, Inc., B-
    293105.18,B-293105.19, 2006 Comp. Gen. Proc. Dec. P19,
    January 17, 2006
    – Installment sale of OCI offending company by Awardee is
      inadequate if payments linked to success of the purchaser of the
      company.
    – Submission of an OCI mitigation plan that adversely affects
      capability to perform a proposal previously submitted and accepted
      by the Contracting Officer requires amendment of the proposal.
    – Record must reflect a rational basis for finding of Capability (best
      value to the Government) vs. SBA Responsibility Determinations.




                                                                             17
  Organizational Conflict of Interest (OCI)

• Matter of: Celadon laboratories, Inc, B-
  298533; November 1, 2006.
  – Where specific and colorable allegations of a real OCI are
    brought to the attention of the agency, it is required to
    specifically determine whether OCI exists.
  – Simply asking the evaluators to self-certify that no OCI exists
    without independent verification may be found inadequate,
    notwithstanding agency regulations allowing the same.




                                                                      18
            Scope of Discussions

• Matter of: Al Long Ford, B-297807, 2006
  Comp. Gen. Proc. Dec. P67, April 12, 2006
  – Meaningful discussions require that offeror be advised of
    weaknesses, deficiencies, or excesses in its proposal that
    must be addressed in order for the offeror to be in line for
    award.
  – When agency discovers or recognizes a material issue after
    discussions have closed that should have been raised during
    discussions in order for the discussions to be meaningful,
    discussions must be reopened and continued.




                                                                   19
             Scope of Discussions

• Matter of: T Square Logistics Services
  Corporation, B-297790.4, April 26, 2006
  – If agency downgrades offer due to past performance, it must
    advise the Offeror of that finding during discussions in order
    for the discussions to be meaningful.
  – Agency incorrectly assumed that evaluation of ―past
    performance‖ merely related to data that could not be
    changed thus elevating the need for raising the issue during
    discussions.




                                                                     20
            Scope of Discussions

• Matter of: CIGNA Government Services,
 LLC, B-297915.2, May 4, 2006
  – When an Agency’s communications result in material
    changes being made to the Awardee’s final proposal, then
    discussions have occurred.
  – Material changes do not include correction of errors but do
    include changes to the total level of effort Awardee
    represented would be provide under the contract or other
    new material information not previously included.




                                                                  21
            Scope of Discussions

• Matter of: University of Dayton Research
 Institute, B-296946.6, 2006 Comp. Gen.
 Proc. Dec. P102, June 15, 2006
  – A previously unacceptable proposal made acceptable as the
    result of communication with the offeror is generally
    considered a material change.
  – The mistake is minor when both the existence of the mistake
    and what was actually intended are clearly apparent from the
    face of the proposal.




                                                                   22
            Scope of Discussions

• Matter of: Advanced Systems
 Development, Inc., B-298411, B-298411.2,
 September 19, 2006
  – Fixed Prices are a material element of RFP if specifically
    required in the Solicitation.
  – Failure to disclose Agency’s raising of fixed prices and
    Awardee’s subsequent lowering its prices as a result of
    discussions was unfair to other Offerors.
  – Discussions may not be conducted in a manner that favors
    one Offeror over another.



                                                                 23
            Scope of Discussions

• Matter of: Multimax, Inc.; et.al B-298249.6;
  October 24, 2006
  – Formulas must be reviewed to assure that the prices at the
    extreme end of the ranges reflected reasonable pricing.
  – Methodology must provide a valid means for identifying
    ―outlier‖ (questionable) rates to be reasonable.
  – An agency may not mislead an Offeror—through the framing
    of a discussion questions or in response to an Offeror’s
    question—into responding in a manner that does not
    address the agency’s concerns.




                                                                 24
                Past Performance

• Matter of: KIC Development, LLC, B-
 297425.2, 2006 Comp. Gen. Proc. Dec. P27,
 January 26, 2006
  – Although the relative merits of past performance are within
    the agency’s discretion, evaluation must be reasonable and
    consistent with the evaluation criteria.
  – Whether offeror will be able to comply with solicitation
    requirement is a responsibility determination.
  – A proposal that fails to conform to solicitation requirements
    on its face must be rejected.



                                                                    25
               Past Performance

• Matter of: United Paradyne Corporation, B-
 297758, March 10, 2006
  – GAO will not substitute its judgment for documented,
    reasonably-based past performance ratings.
  – Evaluation must be conducted fairly, reasonably, and in
    accordance with the solicitation’s evaluation scheme and
    based on relevant information sufficient to make a
    reasonable determination of the Offeror’s past performance.
  – Calculation methodology that treats relevant and irrelevant
    past performance equally is unreasonable.




                                                                  26
            Proposal Evaluation
• Matter of: Computers Universal, Inc.,
 B-297552, 2006 Comp. Gen. Proc.
 Dec. P42, February 14, 2006
  – Even when conducting simplified acquisition, an
    agency must conduct the procurement consistent
    with a concern for fair and equitable competition.
  – Agency has a responsibility to reasonably exercise
    its discretion.



                                                         27
             Proposal Evaluation

• Matter of: Singleton Enterprises; B-
  298576; October 30, 2006
  – Solicitation language was latently ambiguous because it did
    not state that past performance evaluations would be limited
    to Offerors’ past performance. (See FAR 15.305(a)(2)(iii) –
    includes subcontractors, et. al.).
  – The ambiguity was latent because it was susceptible to more
    than one understanding and the Protestor’s claimed
    understanding of the language was reflected by the facts
    surrounding the its proposal.




                                                                   28
            Proposal Evaluation

• Matter of: Information Ventures, Inc.,
 B-297276.2, B-297276.3, B-297276.4,
 March 1, 2006
  – Agency must reconcile contradictory agency cost
    and technical evaluations.
  – Cost-reimbursement solicitation requires cost
    verification independent of offeror’s
    representations.



                                                      29
            Proposal Evaluation

• Matter of: Novex Enterprises, B-
 297660, B-297660.2, March 6, 2006
  – Agency RFP set forth two delivery schedules.
    Awardee proposed a third delivery schedule
    accompanied by a higher-priced proposal.
  – Protester’s proposal was compliant with
    Solicitation delivery schedule and reasonably
    priced.
  – Record failed to explain basis for selection of non-
    compliant proposal.


                                                           30
              Proposal Evaluation

• Matter of: Low & Associates, Inc., B-
  297444.2, April 13, 2006
  – Agency is required to perform its evaluation and make its
    source selection decision on the basis of the criteria and
    requirements stated in the solicitation.
  – Agency may not make an award and then immediately
    modify or waive material requirements.
  – Agency must be cautious in asserting patent ambiguity
    defense when subject to rational interpretation.




                                                                 31
              Proposal Evaluation

• Matter of: Metro Machine Corporation, B-
 297879.2, May 3, 2006
  – An agency may not mechanically apply its own estimates for
    labor hours or costs-effectively normalizing cost elements of
    an offeror’s proposal to government estimates - without
    considering the offeror’s unique technical approach.
  – Agency must recognize obvious and significant costs
    elements associated with actual performance of proposal
    notwithstanding application of agency estimates.




                                                                    32
             Proposal Evaluation

• Matter of: Magnum Medical Personnel, A
 Joint Venture, B-297687.2, June 20, 2006
  – GAO will consider whether evaluation was reasonable and
    consistent with the terms of the solicitation, applicable
    statutes and regulations.
  – Protestor must prove competitive prejudice denied it a
    substantial chance of award.
  – Record must reflect substantive differences in proposals and
    justify selection.




                                                                   33
            Proposal Evaluation

• Matter of: Serco, Inc., B-298266, 2006
 Comp. Gen. Proc. Dec. P. 120,
 August 9, 2006
  – Agency failed to reconcile pass/fail technical
    evaluation with cost evaluation analysis. (see:
    Information Ventures Inc. supra)
  – Before making substantial cost realism
    adjustments, agency should ensure record reflects
    that offeror understands contract requirements.



                                                        34
            Proposal Evaluation

• Matter of: Intercon Associates, Inc.,
 B-298282, B-298282.2, 2006 Comp.
 Gen. Proc. Dec. P. 121, August 10,
 2006
  – Record must include a Consensus Source
    Selection Evaluation Report that reflects the basis
    for the evaluators’ concerns and how those
    concerns accurately and adequately relate to the
    solicitation’s evaluation criteria.



                                                          35
           Proposal Evaluation

• Matter of: SunEdison, LLC; B-298583,
 B-298583.2; October 30, 2006
  – The Awardee conditioned its proposal on the
    terms of a subsequent but currently non-existing
    contract. As a result, the Awardee’s proposal was
    ―conditional‖ and not responsive.




                                                        36
                Proposal Evaluation

• Matter of: Kellogg Brown &Root Services, Inc.; B-
  298694, B-298694.2, B-298694.3; November 16,
  2006
   – Evaluation of cost-reimbursement proposal requires cost realism
     estimate, not acceptance of an offeror’s proposed estimated cost.
   – Cost realism requires independent review and evaluation of specific
     elements of each offeror’s cost estimate.
   – Proposal costs elements must be realistic, reflect an understanding
     of the requirements, and consistent with the methods of
     performance and materials described in the proposal as
     appropriately adjusted.




                                                                           37
         Recovery of Protest Costs

• Matter of: T Square Logistics Services
  Corporation, B-297790.4, April 26, 2006
  – The willingness to issue an ―outcome prediction‖ ADR
    opinion supporting the protest is indication that it satisfies the
    "clearly meritorious" requirement for purposes of
    recommending reimbursement of protest costs.
  – Where the agency corrective action is taken in response to
    outcome-prediction ADR conducted after the agency report
    has been filed, the standard for cost reimbursement is
    presumed to have been met.
                        (case noted above)




                                                                         38
        Recovery of Protest Costs

• BAE Technical Services Inc.—Costs, B-
 296699.3, 2006 Comp. Gen. Proc. Dec. P.
 122, August 11, 2006
  – Costs arising from separate and independent basis for
    protest (facts and legal theory) are severable.
  – Costs arising from presenting multiple examples of the same
    basis for protest are not severable.
  – Agency may delay payment of cost claim pending
    disappointed Awardee appeal to COFC and when parties
    have rational basis for dispute requiring settlement by GAO.



                                                                   39
        Recovery of Protest Costs

• Matter of: Miramar Construction, B-
  298609; October 31, 2006
  – Allowing the Awardee to upwardly correct its bid requires
    rational bidder explanation, clear and convincing evidence
    supporting the claimed mistake, and agency rationale must
    be documented.
  – Note: GAO recommended that the Awardee be allowed to
    withdraw its bid ―if otherwise feasible‖ and award to the
    Protestor who was second low. (Who will complain??)




                                                                 40
              Protest Analysis
• Erroneous, Suspect or Questionable
 Protocol
  – Program, Policy or Fiscal Origin
  – Necessarily Procurement Related
• Procurement Reflects Problematic
 Protocol
  – Modification of Standard Procurement
    Practices
  – Lack of Rational Basis

                                           41
            Protest Analysis

• Nexus to Protestor
  – Nature of Harm
  – Basic Fairness, Best Value, Competition
• Nexus to Government
  – Best Value
  – Equal Access



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