June 6, 2012

GAO Bid Protest Update for June 2012

Recent GAO Bid Protest Decisions: In May we saw several new GAO decisions that may have an impact on government procurement and which further highlight how the GAO is likely to continue handling certain types of bid protests. Most notable this month is yet another loss for the government regarding the awarding of a contract to a non SDVOSB concern. In Kingdomware Technologies, the Protestor prevailed and received a recommendation from the GAO that the VA reimburse the Protestor's costs for filing and pursuing the protest. McKissack - URS Partners, JV involves a challenge by an architecture / engineering firm. In McKissack, the GAO found the protestor's bid protest to be untimely because the debriefing was conducted under the Brooks Act, 40 USC sections 1102-1104 (2006) . According to the GAO, the Brooks Act does not fall within the GAO's exception to their timeliness requirements. This means that debriefings in Brooks Act procurements do not extend the 10 day deadline to file a bid protest. In Wegco, the Protestor lost its challenge due to a technically unacceptable rating. In that case, the Solicitation required contractors to provide "proof of licensing and / or certification of all personnel". The GSA rejected Wegco for failure to provide copies of its licenses. Wegco challenged its exclusion on the grounds that it was licensed and had stated so in the proposal. Furthermore, Wegco claimed it should not have been excluded because the agency already had copies of its licenses due to its work as part of the incumbent contractor's joint venture. In its decision, the GAO said it found nothing objectionable about the GSA's determination that the proposal was technically unacceptable. According to the GAO, Wegco's representation that it was licensed did not meet the Solicitation's requirements as proof of licensure. Copies of the licenses were therefore required.

However, In Estrategy, the Protestor challenged the agency's determination that another bidder was technically acceptable even though it had failed to provide proof of its licensing. In that case, the VA determined that the bidder's representation that it would provide copies of its licenses upon award was sufficient to render the bidder technically acceptable. The GAO denied the bid protest, finding that the VA determined that the bidder's promise to comply with all licensing requirements was acceptable and that there was no basis to object to the VA's determination. According to the GAO, the bidder's representation that it was licensed met the Solicitation's requirements as proof of licensure. Copies of the licenses were therefore not required.

Good Luck on that next bid!

Frank V. Reilly 101 NE Third Avenue, Suite 1500 Fort Lauderdale, FL 33301 (561) 400-0072 phone frank@frankvreilly.com www.frankvreilly.com