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GAO-10-534SP:
United States Government Accountability Office:
Washington, DC 20548:
GAO Bid Protest Overview:
Updated December 2009:
Bid Protest Statistics for Fiscal Years 2005-2009, Primary & Secondary:
Cases Filed[1]:
FY 2009: 1,989 (up 20%);
FY 2008: 1,652[2] (up 17%)[3];
FY 2007: 1,411 (up 6%);
FY 2006: 1,327 (down 2%);
FY 2005: 1,356 (down 9%).
Cases Closed:
FY 2009: 1,920;
FY 2008: 1,582;
FY 2007: 1,393;
FY 2006: 1,274;
FY 2005: 1,341.
Merit (Sustain + Deny) Decisions:
FY 2009: 315;
FY 2008: 291;
FY 2007: 335;
FY 2006: 249;
FY 2005: 306.
Number of Sustains:
FY 2009: 57;
FY 2008: 60;
FY 2007: 91;
FY 2006: 72;
FY 2005: 71.
Sustain Rate:
FY 2009: 18%;
FY 2008: 21%;
FY 2007: 27%;
FY 2006: 29%;
FY 2005: 23%.
Effectiveness Rate (reported)[4]:
FY 2009: 45%;
FY 2008: 42%;
FY 2007: 38%;
FY 2006: 39%;
FY 2005: 37%.
ADR[5] (cases used):
FY 2009: 149;
FY 2008: 78;
FY 2007: 62;
FY 2006: 91;
FY 2005: 103.
ADR Success Rate[6]:
FY 2009: 93%;
FY 2008: 78%;
FY 2007: 85%;
FY 2006: 96%;
FY 2005: 91%.
Hearings[7]:
FY 2009: 12% (65 cases);
FY 2008: 6% (32 cases);
FY 2007: 8% (41 cases);
FY 2006: 11% (51 cases);
FY 2005: 8% (41 cases).
[1] All entries in this chart are counted in terms of the docket
numbers ("B" numbers) assigned by our Office, not the number of
procurements challenged. Where a protester files a supplemental
protest or multiple parties protest the same procurement action,
multiple iterations of the same "B" number are assigned (Le„ .2, .3).
Each of these numbers is deemed a separate protest for purposes of
this chart.
[2] Of the 1,989 cases filed in FY 2009, 168 are attributable to GAO's
recently expanded bid protest jurisdiction over task orders (139
filings), A-76 protests (16 filings), and Transportation Security
Administration protests (13 filings). These 168 filings represent 50%
of the total increase in filings from FY 2008 to FY 2009 (337 filings).
[3] From the prior fiscal year.
[4] Based on a protester obtaining some form of relief from the
agency, as reported to GAO.
[5] Alternative Dispute Resolution.
[6] Percentage resolved without a formal GAO decision.
[7] Percentage of fully developed decisions in which GAO conducted a
hearing.
[End of table]
Report to Congress on Bid Protests Involving Defense Procurements
[Footnote 1]:
Hill Report Origin and Scope:
Report responded to the direction, contained in the report on the
Duncan Hunter National Defense Authorization Act (NDAA) for Fiscal
Year 2009, Pub. L. No. 110-417 (2008) (H.R. Rep. No. 110-652, at 394-
95, May 16, 2008), from the Committee on Armed Services, House of
Representatives to the Comptroller General, to:
* review bid protests of DOD activities filed with GAO during the last
5 years.
* assess extent to which bid protests may be increasing, the extent to
which frivolous and improper protests may be increasing, and causes of
any identified increases.
* recommend any actions that Congress, or the executive branch, could
take to disincentivize frivolous and improper bid protests on the part
of industry.
Findings:
* found that the number of DOD protests filed in FY 2008 (611
protests) increased by 118 protests, from the number of DOD protests
filed in FY 2007 (493 protests). However, the percentage of DOD
protests closed within 30 days in FY 2008 (52.9%), remained roughly
the same as the percentage of DOD protests closed within 30 days in FY
2007 (59.2%).
* existing process provides balanced approach to adjudicate and
resolve challenges to U.S. government procurements.
* Despite increase in bid protest filings in FY 2008--driven in part
by statutory expansions of GAO's bid protest jurisdiction--number of
protests challenging DOD contract awards in last 5 years is relatively
low when viewed historically.
* GAO bid protest process significantly reduces potential disruptions
to DOD procurements as a result of three factors:
1. GAO consistently closes more than 50 percent of all protests
involving DOD procurements within 30 days of filing;
2. remaining DOD protests must be, and are, resolved within 100 days
of filing; and;
3. CICA permits agencies to proceed with contract performance even
before protest is resolved when goods or services are urgently needed,
or when proceeding is in the best interests of the United States.
Recent GAO Decisions:
I. Evaluations And Source Selections[Footnote 2]:
* Relaxation of Requirements:
The S.M. Stoller Corp., B-400937 et al., March 25, 2009, 2009 CPD ¶
193 (contracting officials may not announce in the solicitation that
they will use one evaluation scheme and then follow another without
informing offerors of the changed plan and providing them an
opportunity to submit proposals on that basis. Protest was sustained
where an agency improperly waived or relaxed its requirements for the
awardee and the protester established a reasonable possibility that it
was prejudiced by the agency's actions).
* Unstated Evaluation Criteria:
Public Commun. Servs., Inc., B-400058; B-400058.3, July 18, 2008, 2008
CPD ¶ 154 (the evaluation of protester's technical proposal was
unreasonable, and protest thus was sustained where the certain
features viewed as missing from protester's proposal were not required
by the solicitation, and the record showed that the offerors were not
evaluated equally).
* Unequal Treatment:
Ahtna Support and Training Servs., LLC, B-400947.2, May 15, 2009, 2009
CPD 1119 (protest was sustained where the agency evaluated the awardee
and the protester unequally by crediting the awardee, but not the
protester, with the experience of its subcontractor, even though the
agency viewed both firms' subcontractors as having relevant
experience).
* Agency Failed to Follow Evaluation Criteria:
Ashbury Int'l Group, Inc., B-401123; B-401123.2, June 1, 2009, 2009
CPD ¶ 140 (protest that agency misevaluated awardee's proposal was
sustained where record showed that, while solicitation provided that
agency would conduct extensive testing on submitted product samples,
it failed to conduct testing on awardee's product, as revised
following discussions, and instead accepted awardee's unsubstantiated
representation that it would provide a product that met solicitation
requirements).
Northrop Grunman Infor. Tech., Inc., B-400134.10, Aug. 18, 2009, 2009
CPD ¶ 167 (protest that agency failed to properly evaluate the
awardee's proposal was sustained where (1) contrary to the evaluation
scheme announced in the solicitation, the agency failed to evaluate
staffing under all of the Mission Capability subfactors, and (2) the
solicitation stated that proposals would be evaluated on "the extent
to which" they exceeded a requirement, and proposals that were
substantially different nevertheless were rated the same).
Health Net Fed. Servs., LLC, B-401652.3; B-401652.5, Nov. 4, 2009,
2009 CPD ¶ 220 (protest challenging evaluation of protester's proposal
in procurement for TRICARE managed health care support services was
sustained where the record showed that the agency did not consider the
network provider discounts associated with protester's existing
TRICARE network, in accordance with the solicitation). See also Humana
Military Healthcare Servs., B-401652.2 et al., Oct. 28, 2009, 2009 CPD
¶ 219.
Port of Bellingham, B-401837, Dec. 2, 2009, 2009 CPD ¶ _(protest
sustained where agency had no reasonable basis to determine that
awardee's proposed pier was located outside a designated floodplain
area and that it therefore complied with the solicitation's
limitations regarding lease of property located within a base
floodplain).
* Unsupported Evaluation and Selection Decision:
T-C Transcription, Inc., B-401470, Sept. 16, 2009, 2009 CPD ¶ 172
(protest challenging the award of contracts for transcription services
at multiple locations was sustained where the record showed that: (1)
the evaluation of the protester's proposal under the most important
technical factor was internally inconsistent and unreasonable;
(2) the agency relied on a single overall adjectival rating and on
prices in making its selection decision, and the overall rating failed
to capture the differences between the relative ratings of the
offerors's proposals, or to reflect a reasonable conclusion that
proposals with the same overall rating were technically equal; and (3)
the agency tradeoff decision included only the two awardees and did
not consider the protester for award, even at locations where the
protester's proposal was rated higher than the awardee's proposal).
II. Price And Cost Evaluations:
* Price and Cost Evaluations Must Meaningfully Consider Price:
Public Commun. Servs., Inc., B-400058; B-400058.3, July 18, 2008, 2008
CPD ¶ 154 (protest challenging the evaluation of offerors' pricing was
sustained where the solicitation required offerors to propose eight
international calling rates, and the agency evaluated only one rate as
a surrogate for the others without a reasonable basis to do so).
ACCESS Sys., Inc., B-400623.3, Mar. 4, 2009, 2009 CPD ¶ 56 (protest
was sustained in a competition for the issuance, on a best-value
basis, of a task order to a higher-priced vendor under 8(a)
Streamlined Technology Acquisition Resources for Services government-
wide acquisition contract, where the record neither showed meaningful
consideration of price in the agency's selection of the higher-priced
quotation, nor identified the superior capabilities of the awardee's
quotation that would justify paying the price premium associated with
it).
Health Net Fed. Servs., LLC, B-401652.3; B-401652.5, Nov. 4, 2009,
2009 CPD ¶ 220 (price realism evaluation was flawed where it did not
reasonably consider whether the awardee's staffing, as related to its
price/cost proposal, reflected a lack of understanding of the agency's
technical requirements or presented technical risk).
* Cannot Exclude Technically Acceptable Proposal Without Considering
Price:
Arc-Tech, Inc., B-400325.3, Feb. 19, 2009, 2009 CPD ¶ 53 (an agency
may not exclude a technically acceptable proposal from the competitive
range based on a lower technical rating than other proposals, without
also taking into consideration the proposal's price).
III. Discussions:
* Agency Must Treat Offerors Fairly, If Not Equally:
Ashbury Int'l. Group, Inc., B-401123; B-401123.2, June 1, 2009, 2009
CPD ¶ 140 (protest that agency failed to engage in meaningful
discussions with protester was sustained where record showed that
agency downgraded protester's proposal for failure to include
information that was not called for in solicitation, the information
was not the subject of discussions, and weaknesses assigned to
protester's proposal ultimately were the sole technical discriminator
between proposals; agency should have either amended solicitation to
reflect changed requirements, or conveyed new requirements to
protester during discussions).
The Analysis Group, LLC, B-401726; B-401726.2, Nov. 13, 2009, 2009 CPD
¶ (protest was sustained where agency allowed successful vendor to
make a material revision that made its quotation acceptable, but did
not provide protester similar opportunity to revise its quotation,
thereby improperly engaging in discussions only with successful
vendor).
* Discussions Must Be Meaningful:
Burchick Constr. Co., B-400342, Oct. 6, 2008, 2009 CPD ¶ 203 (agency
failed to conduct meaningful discussions where discussions were
limited to cost proposals and did not identify significant weaknesses
or deficiencies that the agency had identified in the protester's
technical proposal).
Tiger Truck, LLC, B-400685, Jan. 14, 2009, 2009 CPD ¶ 19 (discussions
cannot be meaningful if a vendor was not advised of the significant
weaknesses or deficiencies that must be addressed in order for its
quotation to be in line for award).
IV. Past Performance:
* Past Performance Evaluations Must Be Consistent With Solicitation:
Honeywell Tech. Solutions, Inc., B-400771; B-400771.2, Jan. 27, 2009,
2009 CPD ¶ 49 (once having decided to consider a particular contract
performed by the awardee, the agency was required to evaluate the
relevance of that contract consistent with the evaluation criteria in
the RFP, i.e., the degree of similarity in size, content and
complexity between an offeror's past performance information and the
RFP requirements. Here, there was nothing in the contemporaneous
record to suggest that the agency engaged in such an analysis).
Caddell Constr. Co., Inc., B-401596; B-401597; B-401598, Sept. 21,
2009, 2009 CPD ¶ 187 (the Omnibus Diplomatic Security and
Antiterrorism Act of 1986, 22 U.S.C. § 4852 (2000), established
statutory qualification requirements for construction firms seeking to
build a U.S. embassy, including a requirement that an entity seeking
contracts for diplomatic construction projects over $ 10 million must
have performed construction services "similar in complexity, type of
construction, and value to the project being bid." Agency
determination that vendor satisfied this requirement was unreasonable
where vendor's projects were not similar in complexity or value).
Health Net Fed. Servs., LLC, B-401652.3; B-401652.5, Nov. 4, 2009,
2009 CPD ¶ (protest was sustained where: (1) the agency credited the
awardee with past performance of its parent and corporate affiliates,
yet record established neither the entities involved with performing
the prior contracts submitted by the awardee, nor the roles that the
various entities would have in awardee's performance of the contract,
and (2) under past performance evaluation of the awardee, the record
showed that in assigning the awardee the highest past performance
rating, agency failed to consider, as contemplated by the
solicitation, the fact that awardee's past performance references were
very small in relation to the size of the contract to be awarded).
V. Federal Supply Schedule (FSS) Purchase:
* Non-FSS Products and Services May Not Be Purchased Using FSS
Procedures:
Seaborn Health Care, Inc., B-400429, Oct. 27, 2008, 2009 CPD ¶ 197
(protest was sustained in FSS acquisition where request for quotations
required that competing vendors offer non-FSS services (specific on-
site supervisory personnel) as part of their quotations, since non-FSS
products and services may not be purchased using FSS procedures). See
also Science Applications Intl Corp., B-401773, Nov. 10, 2009, 2009
CPD ¶_.
* FSS Evaluations Must Be Reasonable:
AINS, Inc., B-400760.2; B-400760.3, June 12, 2009, 2009 CPD ¶ 142
(protest challenging agency evaluation of quotations received in
response to solicitation for establishment of a blanket purchase
agreement was sustained where record showed that some aspects of the
agency's evaluation of quotations were not supported by the record and
indicated unequal treatment of competing vendors).
Carahsoft Tech. Corp., B-401169; B-401169.2; June 29, 2009, 2009 CPD ¶
134 (protest challenging an order under an FSS contract for faceted
search capability software pursuant to a competition conducted under
Federal Acquisition Regulation (FAR) subpart 8.4 was sustained where
the agency unreasonably issued an order on the basis of a quotation
that failed to meet one of the minimum technical specifications of the
solicitation).
* Agency's Request For Vendor Price Reductions:
OPTIMUS Corp., B-400777, Jan. 26, 2009, 2009 CPD ¶ 33 (agency's
request for vendor price reductions in FSS acquisition conducted under
FAR part 8.4 did not constitute discussions, and therefore did not
trigger agency obligation to engage in meaningful discussions, as
would be required in a negotiated acquisition conducted pursuant to
FAR part 15; FAR part 8.4 expressly requires agencies to seek price
reductions in specified circumstances). See also USGC Inc., B-400184.2
et al., Dec. 24, 2008, 2009 CPD ¶ 9.
VI. Organizational Conflicts Of Interest (OCI):
* Contracting Officer Must Address OCIs:
L-3 Servs., Inc., B-400134.11; B-400134.12, Sept. 3, 2009, 2009 CPD ¶
171 (protest that agency unreasonably determined that the awardee did
not have a "biased ground rules" OCI was sustained where the record
showed that the awardee's subcontractor provided procurement
development services that put it in a position to affect the
subsequent competition in its favor; protest that agency unreasonably
determined that awardee did not have an "unequal access to
information" OCI also was sustained where the record showed that the
awardee's subcontractor had access to competitively useful, non-public
information, and the drafts of the mitigation plans intended to
prevent the disclosure of that information were not furnished to the
agency until after the conclusion of the performance of the work
covered by those plans).
Nortel Gov't Solutions, Inc., B-299522.5; B-299522.6, Dec. 30, 2008,
2009 CPD ¶ 10 (where offeror would be required to review and provide
input on designs proposed by itself under separate contract with same
agency, agency unreasonably failed to determine the extent of
offeror's OCI and unreasonably concluded that offeror's mitigation
plan was acceptable, where it did not avoid, mitigate, or neutralize
the OCI, and instead relied on agency's existing process that made
government responsible for final decisions).
The Analysis Group, LLC, B-401726; B-401726.2, Nov. 13, 2009, 2009 CPD
¶ (protest that successful vendor had "impaired objectivity" OCI was
sustained where record (1) showed that successful vendor's advice and
assistance could lead to agency's procurement of other products and
services offered by successful vendor, and (2) did not show that
agency adequately considered possibility of "impaired objectivity"
OCI, or whether such a potential OCI could be avoided, neutralized or
mitigated).
VII. Unfair Competitive Advantage:
Health Net Fed. Servs., LLC, B-401652.3; B-401652.5, Nov. 4, 2009,
2009 CPD ¶ 220 (protest that awardee's use of a former high-level
government employee in preparing its proposal created an appearance of
impropriety based on the unfair competitive advantage stemming from
the individual's access to non-public proprietary and source selective
information was sustained, where the contracting officer never
considered the matter—because the awardee did not bring it to his
attention—and the record showed that the individual had access to non-
public proprietary information concerning the protester's performance
of the incumbent contract, which appeared relevant to the challenged
procurement).
VIII. Protests:
Timeliness:
* Must Seek Timely Debriefing:
University of Mass. Donahue Inst., B-400870.3, July 15, 2009, 2009 CPD
¶ 173 (exception to timeliness rules based on receipt of a debriefing
was inapplicable where protester chose to delay debriefing regarding
the elimination of its proposal until after award; post-award protest
challenging agency's elimination of proposal, filed more than 3 months
after protester received notice of the proposal's elimination, was
untimely where protester received all of the information on which the
protest was based at the time the proposal was eliminated).
* If OCI is Known Prior to Closing Time, Protest May Not Be Delayed
Until After Closing:
Honeywell Tech. Solutions, Inc., B-400771; B-400771.2, Jan. 27, 2009,
2009 CPD ¶ 49 (post-closing time protest that awardee had an
impermissible OCI was untimely where (1) solicitation was issued on an
unrestricted basis, (2) protester was aware of the underlying facts
giving rise to the potential OCI (and knew awardee was participating
in the procurement), and (3) in response to protester's inquiry,
agency specifically informed protester that it did not believe awardee
had an impermissible OCI).
* Alleged Procurement Integrity Act Violation Must Be Timely Raised
With Agency:
Frank A. Bloomer—Agency Tender Official, B-401482, July 20, 2009, 2009
CPD ¶ 174 (protest alleging violation of Procurement Integrity Act was
dismissed where the protester did not report the alleged procurement
integrity violation to the contracting agency within 14 days after the
protester received the evidence that it believed showed a possible
violation; timely reporting was required as a condition precedent by
the statutory procurement integrity provisions and GAO's Bid Protest
Regulations).
* Post-Award Protest of Corrective Action Ground Rules Untimely:
Northrop Grunman Info. Tech., Inc., B-400134.10, Aug. 18, 2009, 2009
CPD ¶ 167 (protest of agency's decision not to consider revised
proposals in the reevaluation following corrective action was untimely
where filed after the issuance of the new award decision, where
protester knew or should have known, prior to award decision, of the
agency's intent not to consider proposal revisions).
* Significant Issue Invoked:
Tiger Truck, LLC, B-400685, Jan. 14, 2009, 2009 CPD ¶ 19 (significant
issue exception to GAO's timeliness rules applied where issue raised
was one of widespread interest to the procurement community and had
not been previously decided).
Costs:
* Must Document Cost Claim:
Solutions Lucid Group, LLC—Costs, B-400967.2, Oct. 1, 2009, 2009 CPD ¶
198 (protester's request for recommendation that it be reimbursed
$52,800 in protest costs was denied where protester failed to furnish
sufficient evidence to establish the number of hours worked and rates
of compensation for the individuals who worked on the protest).
* $150 Per Hour Attorneys' Fees Cap Adjusted:
Core Tech Int'l Corp.—Costs, B-400047.3, June 2, 2009, 2009 CPD ¶ 121
(request that GAO recommend reimbursement of attorneys' fees at a rate
higher than the statutory cap of $150 per hour based on increase in
cost of living was granted where claim filed with agency presented
reasonable basis for adjustment).
* GAO May Recommend Reimbursement of Costs for Protest of Foreign
Military Sale Award:
Absalam Aircraft Co.—Costs, B-401298.3, Nov. 5, 2009, 2009 CPD ¶ 208
(neither CICA, nor the Arms Export Control Act, bars GAO from
recommending that the agency reimburse a successful protester's costs
of filing and pursuing a protest challenging award under a procurement
conducted under the Foreign Military Sales program, and neither
statute bars the agency from making such reimbursement).
* Corrective Action:
American K-9 Detection Servs., Inc., B-400464.6, May 5, 2009, 2009 CPD
1107 (an agency's decision to limit discussions in implementing
corrective action in response to a protest was unreasonable and
inappropriate, since the limitation failed to account for other
significant weaknesses or deficiencies found in the proposals).
Jurisdiction:
* GAO Will Hear Protest of No-Cost Procurement of Services:
Armed Forces Hospitality, LLC, B-298978.2; B-298978.3, Oct. 1, 2009,
2009 CPD ¶ 192 (protest jurisdiction of the GAO extends to protest of
a no-cost contractual agreement for the provision of lodging services
to transient soldiers, as part of the Department of the Army's
privatization of Army lodging program, because the contract concerns a
procurement for services by a federal agency and results in a benefit
to the government).
Public Commun. Servs., Inc., B-400058; B-400058.3, July 18, 2008, 2008
CPD ¶ 154 (GAO has jurisdiction to hear protest of the award of a no-
cost contract for provision of phone services to detainees in the
custody of the Bureau of Immigration and Customs Enforcement because
the contract concerns a procurement for services by a federal agency
and results in a benefit to the government).
* GAO Will Not Review Agency Management Decision:
Aleut Facilities Support Servs., LLC, B-401925, Oct. 13, 2009, 2009
CPD ¶ 202 (GAO will generally not review agency's decision to cancel a
solicitation to perform the work in-house because decision whether to
perform work in-house is generally a matter of executive branch
policy).
IX. Task And Delivery Orders:
Delex Sys., Inc., B-400403, Oct. 8, 2008, 2008 CPD ¶ 181 (the set-
aside provisions of Federal Acquisition Regulation (FAR) § 19.502-2(b)
apply to competitions for task and delivery orders issued under
multiple-award contracts).
Bay Area Travel, Inc., et al., B-400442 et al., Nov. 5, 2008, 2009 CPD
¶ 65 (FAR part 15 procedures do not, as a general rule, govern task
and delivery order competitions conducted under FAR part 16).
Page 11 GAO-10-534SP
* Task Order Jurisdiction:
Armorworks Enters., LLC, B-401671.3, Nov. 6, 2009, 2009 CPD ¶ 225 (GAO
does not have jurisdiction to consider protest challenging agency's
decision to issue three separate delivery orders for body armor
plates, where each of the delivery orders was valued below the
statutory threshold of $10 million, and the record does not support
protester's contention that agency's decision to procure the plates by
separate delivery orders was a deliberate effort to evade GAO's bid
protest jurisdiction).
ESCO Marine, Inc., B-401438, Sept. 4, 2009, 2009 CPD ¶ (here, in
connection with task order for dismantling ships, offerors were
required to sell the scrap resulting from the ship dismantling, were
permitted to retain the scrap sale proceeds, and were required to
offset their proposed prices with the scrap sale proceeds; the
calculation of value, for purposes of determining GAO's jurisdiction
to review a protest of the task order, was not limited to
consideration of offerors' proposed prices, but properly included
consideration of estimated ship scrap values).
Innovative Tech. Corp., B-401689 et al., Nov. 9, 2009, 2009 CPD ¶ (GAO
views the National Defense Authorization Act of 2008's authorization
for GAO to consider protests of task orders in excess of $10 million
as extending to protests objecting to the terms of the task order
solicitation. Therefore, the protest of alleged improprieties apparent
on the face of the task order solicitation, filed after issuance of
the task order, was dismissed as untimely under GAO's Bid Protest
Regulations because the protester knew or should have known, upon
receipt and review of the RFP, that the task order would be issued for
an amount in excess of $10 million, given that it was the incumbent
contractor and its initial proposal price exceeded $10 million).
X. OMB Circular A-76:
New Dynamics Corp., B-401272, July 8, 2009, 2009 CPD ¶ 150 (protest of
agency's decision to retain custodial services in-house based on
results of a standard public-private competition conducted pursuant to
OMB Circular No. A-76 was sustained where the agency did not
reasonably consider whether agency tender's material and supply costs
were realistic, as required by the solicitation and OMB Circular A-76).
Rosemary Livingston-Agency Tender Official, B-401102.2, July 6, 2009,
2009 CPD ¶ 135; Recon. Denied, Department of Navy-Recon., B-401102.3,
Aug. 6, 2009, 2009 CPD ¶ 162 (protest challenging evaluation of agency
tender in public-private competition under OMB Circular A-76 was
sustained where the record contained inconsistent statement by the
agency in its contemporaneous evaluation and inadequate documentation
of the agency's findings regarding the tender's shortcomings).
Frank A. Bloomer—Agency Tender Official, B-401482.2; B-401482.3, Oct.
19, 2009, 2009 CPD ¶ 203 (protest challenging a public-private
competition between an agency tender and a private sector proposal was
sustained where: (1) the agency unreasonably accepted the private-
sector offeror's revised fringe benefit ratios in its cost realism
analysis; (2) the record provided no reasonable basis for the agency
to accept the private-sector offeror's unsupported assumption that the
firm could perform a significant portion of the workload 10 percent
more efficiently; and (3) the agency unreasonably allowed the private-
sector offeror to omit the labor cost associated with the material
supply function from its cost proposal, and these errors prejudiced
the protester).
XI. Miscellaneous Issues:
* Solicitations:
PWC Logistics Servs. Co., B-400660, Jan. 6, 2009, 2009 CPD ¶ 67
(protest of terms of a solicitation was sustained where solicitation
was silent as to the basis for determining which zone an offeror would
be awarded where its proposal was found to be most advantageous for
both zones. This failure to advise offerors of the factors the agency
would apply was inconsistent with the requirements in CICA that
agencies identify the bases upon which proposals will be evaluated).
SMARTnet, Inc., B-400651.2, Jan. 27, 2009, 2009 CPD ¶ 34 (protest
against restrictive requirement in a solicitation was sustained where
the record did not establish that the requirement was necessary to
meet the agency's needs).
* Simplified Acquisitions:
Solutions Lucid Group, LLC, B-400967, Apr. 2, 2009, 2009 CPD ¶ 198 (if
using simplified acquisition procedures, agencies are required to
"promote competition to the maximum extent practicable." FAR § 13.104.
Protest was sustained where the agency deliberately failed to solicit
a responsible source that had expressed interest in competing, and
there was not a reasonable basis for questioning the source's ability
to meet the agency's needs).
Critical Process Filtration, Inc., B-400746 et al., Jan. 22, 2009,
2009 CPD ¶ 25 (protest was sustained where agency used simplified
acquisition procedures to meet requirements that should reasonably
have been valued above the simplified acquisition threshold.
GAO determined that the record showed that the agency was splitting
the order to allow the use of simplified acquisition procedures, which
is expressly barred by FAR § 13.003(c)(2)).
Historically Underutilized Business Zones (HUBZone):
* GAO Has Concluded That Under Law, That HUBZone Set-Asides Have
Priority Over Other Set-asides:
Mission Critical Solutions, B-401057, May 4, 2009, 2009 CPD ¶ 93 (an
agency must make reasonable efforts to determine whether it will
receive offers from two or more HUBZone small businesses and, if so,
set the acquisition aside for HUBZone firms, even where a prior
contract for the requirement had been performed by an 8(a)
contractor). Recon. Denied, SBA—Recon., B-401057.2, July 6, 2009, 2009
CPD ¶ 148 (request for reconsideration from the SBA—arguing that our
Office exceeded its statutory grant of authority to decide bid
protests when we concluded in Mission Critical Solutions, that set-
asides under the HUBZone program were mandatory where the enumerated
conditions of the HUBZone statute are met—was denied where, despite
the SBA's contentions to the contrary, our decision did not
"invalidate" the SBA's conflicting regulation, and the decision, and
the recommendation within it, were consistent with our statutory
jurisdiction).
All Seasons Apparel, Inc., B-401805; B-401805.2, Nov. 4, 2009, 2009
CPD ¶ 221 (agency's cancellation of solicitation for Army combat
shirts, which was set aside for HUBZone small business concerns, was
reasonable where cancellation was due to disagreement between GAO and
Executive Branch on interpretation of authorizing statutes for small
business programs, agency was faced with threat of litigation, and
another procurement vehicle was available to meet at least part of the
agency's needs while the agency decided how best to meet its remaining
needs).
* Small Business Set-Asides:
TFab Mfg., LLC, B-401190, June 18, 2009, 2009 CPD ¶ 127 (protest
challenging propriety of solicitation provision—stating that offerors
must meet requirements under Limitations of Subcontracting (LOS)
clause separately for services and supply portions of work under
solicitation—was sustained where provision was inconsistent with Small
Business Act, which provides for application of either services or
supply portion of LOS clause, but not both).
* Agency Obligation To Use Reasonable Methods To Obtain Full and Open
Competition:
TMI Mgmt. Sys., Inc., B-401530, Sept. 28, 2009, 2009 CPD 1191
(agency's misclassification of a procurement for facilities support
services on the Federal Business Opportunities Internet website under
a "miscellaneous" product classification code improperly deprived the
protester of an opportunity to respond to the agency's solicitation
and was not consistent with the agency's obligation to use reasonable
methods to obtain full and open competition).
* Improper Sole Source Awards:
Major Contracting Servs., Inc., B-401472, Sept. 14, 2009, 2009 CPD ¶
170 (agency improperly extended a contract on a sole-source basis
where it did not establish that only the incumbent could provide the
service and the agency could have avoided the urgency that ultimately
led to the sole-source award through advance procurement planning).
See also RBC Bearings Inc., B-401661; B-401661.2, Oct. 27, 2009,
2009 CPD ¶ 207.
OSC Solutions Group, B-401498, Sept. 14, 2009, 2009 CPD ¶ 185 (protest
challenging the cancellation of a request for quotations (RFQ) and
issuance of orders on a sole-source basis to a non-profit agency under
the authority of the Javits-Wagner-O'Day Act was sustained where the
acquired items were not on the procurement list maintained by the
Committee for Purchase From People Who Are Blind or Severely Disabled;
since the sole-source procurement therefore was improper, the
cancellation of the RFQ was not reasonable).
* Responsibility:
ESCO Marine, Inc., B-401438, Sept. 4, 2009, 2009 CPD ¶ (when an agency
undertakes a responsibility determination, even when discretionary,
the conclusions drawn from the analysis must be reasonable).
* Trade Agreements Act (TAA):
Tiger Truck, LLC, B-400685, Jan. 14, 2009, 2009 CPD ¶ 19 (in a
procurement covered by the TAA, protest of an award to a vendor whose
quotation identified products that were not TAA-compliant was
sustained where the agency failed to follow required evaluation
procedures for TAA procurements, and improperly failed to ascertain
whether the products identified by the protester were TAA-compliant).
[End of section]
Footnotes:
[1] [hyperlink, http://www.gao.govilegal/bidprotest.html].
[2] Prepared by Katherine I. Riback, Senior Attorney.