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GAO Bid Protest Update for October 2012

October 18, 2012

September saw several new bid protest decisions from the GAO that are likely toimpact federal procurement law and continue to highlight how the GAO will addressfuture bid protests.

Although last month was filled with losses for the Protestors, there were a few victories.

Protestors prevailed in three cases that I filed with the GAO.

In casesB-407336andB-407291it was alleged that The United States Air Forceviolated the Federal Acquisition Regulations and the Competitiveness in Contracting Actby advertising procurement opportunities as goods rather than services. The Protestorsuccessfully argued in both cases that the government impermissibly hinderedcompetition in violation of federal law by making it more difficult for bidders to find theopportunities due to the government's use of improper Classification Codes inthe FedBizOpps system. In both cases the Air Force agreed to take corrective actionwithout the need for a decision by the GAO.

In caseB-407126, it was alleged that The United States Department of Commerceviolated federal law by improperly setting the Solicitation aside as a sole-sourceprocurement. In addition, it was alleged that the Solicitation contained an impermissibleproprietary specification that violated federal law. In that case, the Department ofCommerce agreed to take corrective action without the need for a decision by the GAO.

Also of note is the case ofTriumvirate Environmental. In this case, the Protestorsuccessfully argued that the Agency improperly found its proposal to be unbalanced.The Protestor also successfully argued that the Agency conducted an impropertechnical-price tradeoff without giving meaningful consideration to the Protestor'spricing. The case provides a very good discussion of the legal framework behind priceevaluations and proper (or in this case improper) tradeoff analysis.

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R3 Government Solutionsis a technical evaluation and price realism case involvingan ID/IQ procurement. In that case, the GAO once again made clear the longstandingrule that the GAO will not undertake independent proposal evaluations and will notsubstitute its judgment for that of the Agency.Eagle Support ServicesandWeibelEquipmentare similar ID/IQ cases involving technical evaluation challenges among

other issues. All three of these cases make it clear that mere disagreement with theAgency's decision is insufficient to win your protest. In order to prevail, you must showthe GAO that the Agency's decision is not supported by the record. If you fail to allegeand prove this claim, you are highly unlikely to win your protest.

CWTSatoTravelis an evaluation challenge involving allegations of misleading Agencydiscussions and an improper single award. In this loss for the Protestor, the GAO heldthat an Agency's discussions are not misleading when a Protestor fails to takereasonably prudent measures to seek clarification. In addition, although the GAOagreed with the Protestor's position that an ID/IQ in excess of $103 million usuallyrequires the award of multiple contracts, the GAO sided with General Services

Administration's decision to make a single award based on FAR 16.504 (c)(1)(ii)(D)(1)which allows a single award when the Agency determines that only one bidder isqualified and capable of performing the work at a reasonable price to the government.

Good Luck on that next bid!

Frank V. Reilly101 NE Third Avenue, Suite 1500Fort Lauderdale, FL 33301(561) 400-0072phone

frank@frankvreilly.comwww.frankvreilly.com

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