Government Accountability Office

On June 1, 2015, the Office of Federal Procurement Policy (“OFPP”) released a Memorandum for Chief Acquisition Officers and Senior Procurement Executives to provide guidance on “Effective Use of Reverse Auctions.”[1] Reverse auctions are a web-based procurement tool that allows sellers to compete with successively lower bids to obtain awards for products and services. Although the use of reverse auctions by contracting agencies has been steadily increasing (nearly tripling from 7,193 actions to 19,688 between FY 2008 and FY 2012, reaching a value of $828 million), the tool is not currently addressed under the Federal Acquisition Regulations (“FAR”). A December 2013 Government Accountability Office (“GAO”) report highlighted the growing trend in use of this tool and called upon OFPP to issue comprehensive government-wide guidance.[2] In response, OFPP’s June 1, 2015 memorandum provided a set of “reminders” to help contracting officers maximize the potential benefits of this tool.

This article briefly explains how reverse auctions work, identifies trends in use, and summarizes highlights of OFPP’s recommendations that may impact future use of reverse auctions.


Continue Reading June 1, 2015 OFPP Memorandum “Effective Use of Reverse Auctions”

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(contributed to by Derek R. Mullins)

When protesting to the Government Accountability Office, contractors must satisfy GAO’s “interested party” rule. In other words, a protester must be an actual or prospective bidder or offeror with a direct economic interest in the procurement. In post-award protests, it is expected that the entity that files a protest of an award is the same entity that would be in line for contract award were its protest sustained. GAO has considered cases where protests are filed under the names of entities that have some manner of corporate relationship with an actual offeror. In many instances, regardless of the protester’s affiliation with the actual offeror, GAO will strictly apply the interested party rule to the entity that filed the protest.

Yet, in a November 21, 2013 decision that was finally made public on January 24, 2014, GAO did something different. In the Matter of Harris Patriot Healthcare Solutions, LLC, B-408737, the protest of the issuance of a task order under a Request for Task Execution Plan No. T4-0236 had originally been filed under the name “Harris Corporation.” As explained in a footnote in the decision, the Department of Veterans Affairs originally awarded a T4 contract to Harris Corporation. Earlier in 2013 however, the VA and Harris Corporation agreed to a novation of the contract to Harris Patriot Healthcare Solutions, LLC, such that at the time the protest was filed, the T4 contractor was Harris Patriot Healthcare Solutions, LLC.
Continue Reading GAO Declines to Apply the Interested Party Rule in a Protest Filed under the Name of the Wrong Company

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In its annual report to Congress under the Competition in Contracting Act of 1984, 31 U.S.C. § 3554(e)(2), GAO disclosed the following bid protest statistics for FYs 2009-2013:

For the first time since FY 2006, the number of cases filed in FY 2013 decreased from the previous year (the FY 2005 – FY 2009 statistics, and C&M’s analysis thereof, are available here). However, it’s too early to tell whether the 2% downturn in protests filed was an anomaly, a result of sequestration (including furloughs of personnel with acquisition responsibilities) or impending government shutdown, or simply an inevitable leveling-off after multiple record years of protest filings.
Continue Reading GAO Releases Protest Statistics for FY 2013

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Fixed-price contracts allow the government to purchase goods and services for set prices and allocate the cost risk of performance to the contractor—if the contractor offers to perform the work for too low of a price, then it may reap little profit, or even take a loss. Thus, the government’s primary concern in evaluating fixed-price proposals is the reasonableness of the offeror’s price—i.e., whether the fixed price is too high. See FAR 15.402(a) (requiring contracting officers to purchase supplies and services “at fair and reasonable prices”). The government may, at its discretion, also perform a price realism evaluation of a fixed-price proposal to assess whether the proposed price is too low—“whether an offeror’s low price reflected its understanding of the contract requirements or to avoid the risk of poor performance from a contractor that is forced to provide services at little or no profit.” Esegur-Empresa de Seguranca, SA, B-407947 et al., Apr. 26, 2013, 2013 CPD ¶ __; see also FAR 15.404-1(d)(3).

Previously, the Government Accountability Office (GAO) had held that even when an agency “reserves the right” to conduct a price realism evaluation of fixed-price proposals, the agency is not required to conduct such an analysis where “the RFP did not expressly state that the agency would” do so. Guident Techs., Inc., B-405112.3, June 4, 2012, 2012 CPD ¶ 166 at 13 n.9 (emphasis added). In limited circumstances, the GAO had imposed an obligation on agencies to perform price-realism evaluations for fixed-price proposals, but only where “[a] reasonable reading of the solicitation” was that the agency would conduct such an evaluation. Halfaker & Assocs., B-407919 et al., Apr. 10, 2013, 2013 CPD ¶ __ at 9 n.5; Waterfront Techs., Inc., B-401948.16 et al., June 24, 2011, 2011 CPD ¶ 123 at 15 n.16.
Continue Reading GAO Implies Presumption of Price Realism Evaluation in Fixed-Price Solicitation

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The Government Accountability Office recently rejected a novel argument regarding how timeliness is to be determined for GAO protests filed after an agency either dismisses or denies an agency-level protest.  In finding that the timeliness of such a protest does not depend on the nature of the adverse agency action, GAO has effectively prevented an agency from dismissing an agency-level protest without considering the merits of the protest, and then moving to dismiss on timeliness grounds at GAO so as to preclude any review on the merits.

In Logis-Tech, Inc., B-407687, Jan. 24, 2013, 2013 CPD ¶ –, the United States Marine Corps argued that the protest should be dismissed as untimely because, by first filing an "unauthorized" agency-level protest, the protester missed its chance to file at GAO within 10 days of its debriefing.  The relevant timeline of events is that: on September 26th, the Marine Corps notified vendors of award and sent debriefing letters to each of the offerors; nine days later, on October 5th, Logis-Tech filed an agency-level protest with the contracting officer; seven days after that, on October 12th, the Marine Corps dismissed the agency-level protest on the basis that it lacked jurisdiction; and then, on October 16th, Logis-Tech filed its protest at GAO.


Continue Reading Application of GAO’s Timeliness Rules for GAO Protests Filed after Agency-Level Protest Is the Same Regardless of the Nature of the Adverse Agency Action

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In another example of the Court of Federal Claims ("Court") and the Government Accountability Office (GAO) reaching different conclusions, the Court sustained a $32 million protest in a recent decision brought against the Department of Veterans Affairs ("VA"), whereas GAO had dismissed the protest as untimely on the grounds that LabCorp should have protested what

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Since the emergence of cybersecurity and privacy as high risk issues in the public sector, the Government Accountability Office (GAO) has been at the forefront – identifying risks, reviewing progress of federal agencies, and keeping Congress informed on the latest developments in the cyber and technology arena.  In this role, GAO has reported on the

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The Department of Defense (“DoD”) continues to contract out work that should be handled by federal employees, according to a new Government Accountability Office (“GAO”) study, which finds shortcomings in DoD’s tracking and management of such “inherently governmental” tasks.

The study urges DoD to better police its inventory of contracts—and bring in-house those functions too