The Procurement Playbook

The Procurement Playbook

Legal Insight for Government Contractors

When an Improperly Submitted Proposal is Still Acceptable

Posted in Bid Protests

6600657455_976503bae2_zThe deadline for the submission of proposals in response to a RFP is looming.  The proposal team is frantically using the last moments before the submission deadline to ensure that every component of their proposal is perfect.  Inevitably, nothing becomes more important than ensuring that the proposal is correctly submitted to the Agency.  But what happens when you submit your proposal the Agency through the wrong web-portal?

The scenario described is enough to give any federal contractor nightmares.  In a recent Government Accountability Office (the “GAO”) bid protest decision, however, the GAO determined that the Agency improperly rejected a proposal because the offeror mistakenly submitted the proposal through the incorrect web portal.

In AECOM Technical Services, Inc., B-411862, the Agency utilized a web portal for the submission of proposals, FedConnect.  Importantly, FedConnect contained two separate communication features for prospective offerors: (1) the Message Center, available for offeror’s to submit questions concerning the RFP; and (2) the Response Center, designated in the RFP as the method to submit proposals.  Although submitted a day early, AECOM mistakenly submitted its proposal through the Message Center, rather than the Response Center.  Immediately recognizing this mistake, the contracting specialist attempted to communicate with AECOM through the FedConnect Message Center.  AECOM, however, did not receive the communication from the contracting specialist before the RFP’s deadline for the receipt of proposals.  Subsequently, the Agency informed AECOM that its proposal was rejected because it was not submitted properly through the FedConnect’s Response Center feature.

AECOM filed a bid protest at the GAO challenging the Agency’s decision to reject its proposal.  While underscoring the fundamental principle that a RFP may impose reasonable submission instructions, and that deviations from those instructions may result in the rejection of the proposal, GAO explained that not all deviations are created equally:

Bids and proposals that deviate from solicitation requirements . . . need not be rejected in every instance.  When the deviation involves a matter of form rather than of substance, or when the government’s needs will be satisfied by acceptance of a deviating offer and other offerors would not be unfairly prejudiced by the acceptance, such an offer can be accepted.

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Thou Shalt Not Wait Until the Last Minute to Submit an 8(a) Joint Venture Agreement to SBA for Approval

Posted in Bid Protests, Small Business

A recent decision by GAO in FedServ-RBS JV, LLC, B-411790, provides yet another reminder to 8(a) joint ventures to submit proposed joint venture agreements to the U.S. Small Business Administration (“SBA”) for approval as early as possible.  This case shows that waiting until the last minute to submit your joint venture agreement to SBA can result in the loss of a contract award.

Under SBA’s regulations, an entity submitting an offer as an 8(a) joint venture for an 8(a) set-aside procurement must have its joint venture agreement approved by SBA before it can be awarded the contract (13 CFR 124.513(e)(1)).  If the procuring agency selects a 8(a) joint-venture for award, but then SBA informs the agency that it has not approved that offeror’s joint venture agreement, the agency can eliminate the offeror and award the contract to the next offeror in line (13 CFR 124.507(b)).  Unfortunately, this scenario happened to FedServ-RBS. Continue Reading

ASBCA Fiscal Year 2015 Annual Report: Sustain Rate of Appeals Remains over 50% and ASBCA Resolves More Appeals

Posted in Claims and Disputes

On O5006396635_c5359a439d_zctober 20, 2015, the Armed Services Board of Contract Appeals (ASBCA) released its Annual Report of Transactions and Proceedings for the fiscal year ending 30 September 2015.  The report indicates that the number of appeals pending have more than doubled since 2011, but that the increase has slowed considerably with a net increase of 21 appeals, for a total of 1,087 appeals pending at the end of FY 2015.

This stability can be attributed to the fact that the ASBCA continues to dispose of more appeals each year (647 appeals this year) and that there was a slight decrease in the number of appeals docketed in FY 2015, 668 as compared to 708 in FY 2014.  At the same time, 52.9% of the published decisions of the ASBCA found the contractor’s claim meritorious (in whole or in part).  The ASBCA report indicates that 526 appeals were dismissed and states that “in the majority of cases, a dismissal reflects the parties have reached a settlement.”  The success rate measured by sustained appeals and settlements indicates the ASBCA remains an excellent avenue for the resolution of contractors disputes, and that the ASBCA is resolving appeals at an increasing pace.

At the same time, the success rate for non-binding Alternate Dispute Resolution (ADR) at the ASBCA remains extremely high.  Continue Reading

GAO: No OCI When Proprietary Information Obtained is of “No Relevance or Competitive Usefulness”

Posted in Bid Protests, Organizational Conflicts of Interest

720px-US-GovernmentAccountabilityOffice-Logo.svgA recent Government Accountability Office (GAO) bid protest decision provides yet another example of the importance for contractors to identify potential organizational conflicts of interest (OCI) when submitting a proposal in response to a federal government solicitation.

In DV United, LLC, B-411620, B-411620.2, Sept. 16, 2015, GAO denied a bid protest challenging the award of a contract to NES Associates, LLC (NES) by the Department of the Interior (on behalf of the Department of the Army).  Among other arguments, DV United (DVU) alleged that NES had access to a DVU team member’s proprietary information through it performance of an unrelated Army contract, thus creating an unequal access to information type OCI.

As a refresher, FAR Part 9.5 governs the “responsibilities, general rules, and procedures for identifying, evaluating, and resolving organization conflicts of interest.”  Accordingly, contracting officers are obligated to avoid, neutralize, or mitigate potential significant OCIs to prevent situations in which a contractor’s objectivity may be impaired, or a contractor may gain an unfair competitive advantage. Continue Reading

SBA Proposes to Allow Prime Contractors to Count Lower-Tier Subcontracts Towards Small Business Subcontracting Goals

Posted in Legislative and Regulatory Developments, Small Business

Yesterday, the Small Business Administration (“SBA”) issued a proposed rule to amend its regulations to implement Section 1614 of the National Defense Authorization Act for Fiscal Year 2014 (the “2014 NDAA”). The amendment proposes to expand the credit prime contractors may receive towards their small business subcontracting goals for subcontracts awarded to lower tiered subcontractors. Comments on the proposed rule are due to the SBA on or before December 7, 2015.

Prime contractors are required to develop a small business subcontracting plan prior to the award of a federal contract, provided that the firm is a large business (i.e., not a small business concern) and the dollar value of the awarded contract is expected to exceed $650,000 (or $1.5 million for construction of a public facility). The subcontracting plan must include targeted goals, expressed as a percentage of all forecasted subcontracting dollars, for subcontract awards to: small businesses; veteran-owned small businesses; service-disabled veteran-owned small businesses; HUBZone small businesses; small disadvantaged businesses; and women-owned small businesses.

Currently, the Federal Acquisition Regulation provides that a prime contractor may report its progress towards achieving its small business subcontracting goals by calculating subcontract awards made only to the prime contractor’s “immediate next-tier subcontractors.” See FAR 52.219-9(l). Under the proposed rule, however, prime contractors will begin to receive credit for subcontracts awarded to small business concerns at any tier. According to the SBA:

The proposed amendments authorized by [the 2014 NDAA] would allow an other than small prime contractor that has an individual subcontracting plan for a contract to receive credit towards its small business subcontracting goals for subcontract awards made to small business concerns at any tier.

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Your GAO Protest Can Be Untimely Even if You Follow the Plain Language of GAO’s Protest Regulations

Posted in Bid Protests

2614531003_c34d9a2393_zHave you ever had a contract dispute and looked back at the contract only to realize that you hadn’t contemplated that type of dispute occurring, and the contract is essentially silent on the issue?  It seems that this is the type of situation that GAO recently encountered with its bid protest regulations.  Unfortunately, this hole in the GAO regulations can have negative implications for those seeking to file a protest.

Protect the Force, Inc. – Reconsid., B-411897.3, involved a procurement where, after submission of final proposal revisions, the agency notified offerors it was amending the max dollar amount for a line item in the RFP (Day 0).  However, offerors were not provided an opportunity to submit revised proposals in response to this amendment, and two days later the agency notified Protect the Force (“PTF”) that it was eliminated from the competition (Day 2).  PTF timely requested a debriefing (Day 4), which the agency provided (Day 11).  Thereafter, PTF filed a bid protest at GAO (Day 16) challenging the agency’s amendment to the RFP.  To recap the timelines, PTF filed its protest 16 days after the amendment, 14 days after it was eliminated, and 5 days after it was provided a required debriefing.

A plain reading of GAO’s protest regulations would seem to support PTF’s argument that its protest was timely, as it was filed within 10 days after the required debriefing.  But GAO held otherwise, dismissing PTF’s protest as untimely, because it was not filed within 10 days of the amendment to the RFP being challenged by PTF. Continue Reading

How an Offeror’s Attempt to Avoid a Formal Bid Protest Can Backfire

Posted in Bid Protests

4293345633_cfc8539134_mIn a recent bid protest decision, Coulson Aviation (USA), Inc., the Government Accountability Office (“GAO”) injected uncertainty regarding informal communications between a prospective offeror and the agency expressing concern about a solicitation provision. Unfortunately, this decision may punish contractors that seek to resolve concerns about a solicitation outside the protest process.

The background of this case may sound eerily familiar to contractors. After receipt and review of a newly issued solicitation, Coulson sent letters to the agency questioning the decision to conduct the relevant procurement under FAR part 15 (as opposed to FAR part 12). The agency responded to Coulson’s letters by reiterating the government’s intent to utilize FAR Part 15 procedures. Over a month later, but before the date proposals were due under the Solicitation, Coulson submitted a bid protest to GAO. GAO dismissed Coulson’s protest, however, construing the letters previously sent to the agency by Coulson as “agency-level” protests – not just informal communications – and the agency’s responses to be denials of those protests. Accordingly, GAO concluded that GAO’s Bid Protest Regulations required Coulson to submit any protest to GAO within 10 days after the protest denials (as opposed to the deadline for submission of initial proposals). Because Coulson’s letters to the agency were determined to be an agency-level “protests,” Coulson’s time to file a pre-bid protest at GAO was cut short by five months. Continue Reading

FY2014 Interagency Suspension and Debarment Committee Report: The Numbers Part 2

Posted in Suspension and Debarment

Last week we discussed the FY2014 Interagency Suspension and Debarment Committee Report released in April, and discussed how the data in that report is compiled. This week we are breaking down the numbers in the report.  FY 2014 saw an increase in overall numbers of suspensions, proposed debarments, and debarments. There was 5,179 total actions in FY 2014, up from 4,842 in FY 2013, an increase of approximately 7%. Primarily there was an increase in actions from civilian agencies, which indicates that civilian agencies are starting to build more active programs. More active programs means that the trend of increased activity should continue. The civilian agencies with the largest jump in actions were: Departments of Housing and Urban Development (24%) and Treasury (90%). Additionally, in the Department of Defense, the Navy also had a 29% increase in actions. Based on this report, it seems likely that the Department of Defense will continue at the same level and we will continue to see moderate increases in the civilian agencies.

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FY2014 Interagency Suspension and Debarment Committee Report: The Compliance Trend Continues Part 1

Posted in Suspension and Debarment

It’s the time of year again to obsess over numbers that are mostly irrelevant. On April 1, the Interagency Suspension and Debarment Committee released its FY2014 report releasing the number of exclusion actions government-wide that agencies initiated. These numbers include suspensions, proposed debarments, and debarments as well as administrative agreements. It’s important to understand how these numbers are compiled before discussing the numbers themselves.

First, if, for example, Suzy Smith and Bobby Smith own Smith Contractors and all three are proposed for debarment for the same misconduct, those are counted as three actions within the ISDC report’s numbers despite only one act of misconduct. The ISDC itself admits that it “does not consider the overall number of suspension and debarments to be a metric of success.” Because most of the actions behind these numbers are unpublished, it is impossible to tell how many actual instances of misconduct the SDOs reviewed this year. Why do we care about instances of misconduct compared with overall numbers? If one debarment covers fifty individuals in a single case, that single case counts as fifty actions, and it looks like there is far more activity in that agency over the year than there actually is. Continue Reading

The World Bank Debarment System – Part II

Posted in Suspension and Debarment

In the previous post, the World Bank’s system for debarment was discussed.  This post discusses the collateral impacts of a World Bank debarment in the context of the World Bank’s debarment of Alstom SA.

What did the World Bank debarment of Alstom mean in the broader context of international procurement?  Are there potential collateral consequences for companies and for governments as a result of the World Bank’s actions?

The African Development Bank Group, the Inter-American Development Bank, the Asian Development Bank, the European Bank for Reconstruction and Development, and the World Bank have a cross-debarment agreement such that if one bank debars a company or individual, that company or individual is also debarred from pursuing contracts with the other two banks.  Therefore, the World Bank’s debarment of Alstom also applied to the other development banks.

Currently, the United States does not automatically recognize a World Bank debarment and exclude contractors on that account.  A Suspension and Debarment Official could, however, still review the causes for the World Bank’s debarment and make an independent determination that debarment is appropriate for the United States Government.  A company with circumstances similar to Alstom’s could see itself being simultaneously debarred from the World Bank and  United States Federal contracting.

The European Union’s new procurement directives update the current exclusion regime at the member state level to require contractors to self-certify as part of every procurement that there have been no convictions for a company or individual officers of a company for integrity related offenses.  In the Alstom Zambia case, there was no criminal conviction; therefore, a company with similar circumstances would be free to continue to win and perform government contracts.

The current Canadian regime also limits exclusions to convictions or discharges for integrity offenses.  Therefore, the debarment consequences would be very similar to those within the European Union.


As the international suspension and debarment regime grows and continues to become more sophisticated, contractors need to be ever more aware that the consequences of corruption and fraud can have impacts beyond the state where the corruption occurs.  Additionally, it is not just the actions of the legal system such as convictions that can have significant consequences on a business but suspensions and debarments as well.  With the harmonization of debarment regimes, the consequences of one debarment by one government could eventually become an automatic debarment in another.  While this is not currently the case,  the European Union’s new procurement directives and the Canadian debarment system demonstrate the potential avenues that an automatic cross-debarment could take.  If a company is convicted for corruption, even outside of the respective state’s borders, the company is still automatically debarred from government procurement activities for a period of time.  The development banks cross-debarment agreement demonstrates a similar automatic exclusion between governments for debarment actions is practicable and possible.