Sep 13, 2017

In its August 25, 2017 decision the GAO sustained a bid protest from David Jones CPA PC (“Jones”) on the Department of Veterans Affairs’ (“VA”) refusal to establish a blanket purchase agreement following a request for quotations on Equal Employment Opportunity claims investigations. The principle issue of the decision revolved around the VA’s elimination of Jones’ proposal because of a single line item.

The solicitation advised offerors that technical approach was significantly more important than past performance and that, combined, technical approach and past performance were significantly more important than price. The solicitation also warned the VA would not establish a blanket purchase agreement with any vendor if the price submission was “questionable for reasonableness.” Jones was assigned a “good” technical rating but the VA also determined Jones had submitted an unreasonable price for a single line item. Ironically, every other line item in Jones’ proposal was lower than the mean of the other offerors. Following this initial evaluation, Jones was eliminated from consideration, with no further analysis from the VA.

The VA unsuccessfully argued that the solicitation supported exclusion based on a single high priced line item because the solicitation required not-to-exceed quantity for each line item. The GAO noted the premise of this argument was flawed because the solicitation did not provide any estimated quantities for the lines items.  Most importantly, the GAO took issue with the VA lack of evaluation on the effect of this single item’s price on the agreement as a whole. In order to justify exclusion, the VA needed to evaluate if that single line item would have created an overall unreasonably high price, or at least created an unacceptable risk that the price would be too high on a typical government order.

Forum Timeliness Performance Stay Task Order/IDIQ Filing Fees Time Frame for Decision
Government Accountability Office (GAO) Protest based upon improprieties in a solicitation: Must be filed prior to the time set for submission of initial proposals.

 

All other protests: Must be filed not later than ten days after the basis of the protest is known or should have been known.

 

Debriefing exception: protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than ten days after the date on which the debriefing is held.

 

 

Pre-award protest: When the agency has received notice from the GAO of a protest, the Agency must delay the award.

 

Post-award protest: An automatic stay applies if the protest is filed within five days of a requested and required debriefing, or, if no debriefing was requested and required, within ten days of contract award provided that the GAO notifies the agency within that time frame.

The GAO only has jurisdiction over civilian agency task order awards valued over $10 million.

 

The GAO’s jurisdictional threshold for military agency task order protests is $25 million.

 

Department of Defense task orders issued under civilian agency Government Wide Acquisition Contracts (GWACs) are subject to the $10 million threshold applicable to civilian task order awards.

 

There is no minimum value dollar threshold for Federal Supply Schedule (FSS) contracts.

Currently none. GAO will be implementing a $350 filing fee in the future. GAO shall issue a decision on a protest within 100 days after it is filed.
Forum Timeliness Performance Stay Task Order/IDIQ Filing Fees Time Frame for Decision
Court of Federal Claims (COFC) Pre-award protest: No specific time limits but errors apparent on the face of the solicitation must be protested prior to the time set for submission of initial proposals.

 

Post-award protest: No specific time limits but serious delay may impact the decision.

No automatic stay applies at the COFC. Instead, the protester must seek a preliminary injunction. The COFC has jurisdiction over task order protests only where the protester alleges an increase in scope, period, or maximum value of the contract under which the order is issued or where a protest of an order valued in excess of $10 million (civilian task orders)/$25 million (military task orders). $350. No set time frame for decision but the court’s practice is to expedite protest cases to the extent practicable and to conduct hearings on motions for preliminary injunctions at the earliest practicable time.

 

Protest Chart

About the Author:

Tyler Freiberger Headshot | Centre Law & Consulting in Tysons, VA Tyler Freiberger
Associate Attorney

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.
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