Yet another unwary government contractor has been turned away by GAO because it failed to file its protest on time. Unsuccessful offerors that contest evaluation issues (rather than solicitation defects) have 10 days to file protests at GAO. That generally applicable 10-day deadline is tolled when a “debriefing” is required in FAR Part 15 (and certain Part 16) procurements. But that tolling rule doesn’t apply when the FAR only requires that the agency provide an “explanation” to disappointed offerors (e.g., in FAR Parts 8, 12, and 13 procurements)—and does not mandate a “debriefing.” GAO’s decision in Gorod Shtor illustrates this rule by dismissing the protest of an offeror that fell into this bid protest trap.
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GSA FSS LogoThe Federal Circuit’s decision in CGI Federal Inc. v. United States addressed the relationship between FAR Part 12—which applies to acquisitions of commercial items—and FAR Subpart 8.4, which addresses the Federal Supply Schedule (FSS) program. The case involved an RFQ issued under the FSS program by the Centers for Medicare & Medicaid Services

Editor’s note: This is the fourth post in a series focused on protest allegations related to cost and price analyses. The first post explained the basic principles of price and cost realism. The second post focused on the adjustments an agency may make during a cost realism analysis. The third post concentrated on the role of comparisons to benchmarks in price analyses. Planned future posts will discuss price reasonableness and recent protest decisions involving cost/price analysis issues. 

hand-562565_1280If you have read the prior posts in this series, you are aware that agencies conduct realism analyses as part of proposal evaluation for cost-reimbursement contracts to ensure that “the estimated proposed cost elements are realistic for the work to be performed; reflect a clear understanding of the requirements; and are consistent with the unique methods of performance and materials described in the offeror’s technical proposal.” FAR 15.404-1(d). The last element―consistency with an offeror’s proposed technical approach―provides a basis for a protest when a disappointed offeror learns or suspects that an agency failed to consider its technical approach when assessing its proposal for realism. This post describes the facts and rulings in three cases that illustrate the protest issues that can develop from such analyses.


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iStock_000019708886LargeEditor’s note: This is the third post in a series focused on protest allegations related to cost and price analyses. The first post explained the basic principles on price and cost realism. The second post focused on the adjustments an agency can make during a cost realism analysis. Planned future posts will discuss the role of an offeror’s technical approach in a price/cost realism analysis, price reasonableness, and recent protest decisions involving cost/price analysis issues. 

Like any buyer, the Government wants to pay reasonable prices for the goods and services that it acquires. Agencies often perform a price analysis as part of that effort. The FAR (15.404-1(b)(1)) explains that “Price analysis is the process of examining and evaluating a proposed price without evaluating its separate cost elements and proposed profit,” and it provides examples of techniques that can be used to ensure a fair and reasonable price. When a disappointed offeror challenges an agency’s price analysis in a bid protest, the Court or GAO will examine whether the analysis was consistent with the solicitation. The depth of an agency’s analysis is usually within the agency’s discretion, but an agency cannot base its analysis on irrational assumptions or critical miscalculations. This post focuses on protest issues that arise with respect to the two most common price analysis techniques.
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The Federal Supply Schedule (FSS) is supposed to be a way for agencies to streamline procurement. However, achieving the desired efficiency requires that the Government buyer use the right contract vehicle for a given requirement. If the Government uses the wrong schedule—or a contractor proposes to provide goods or services that are not available under its schedule contract, and the agency fails to perform a careful evaluation—litigation may effectively eliminate the desired efficiencies. A recent GAO decision, US Investigations Services provides a good example of how thing can go awry.
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iStock_000006139533LargeEditor’s note: This is the second post in a series focused on protest allegations related to cost and price analyses. The first post explained the basic principles on price and cost realism. Planned future posts will discuss benchmarks an agency may use in a realism analysis, the role of an offeror’s technical approach in a price/cost realism analysis, price reasonableness, and recent protest decisions involving cost/price analysis issues. 

As discussed in the first post in this series, a cost realism analysis is required when an agency evaluates proposals for a cost-reimbursement contract. The analysis is required for cost-reimbursement contracts because under these contracts, an offeror’s proposed costs are not controlling–the Government will be bound to pay the contractor its actual, allowable, and reasonable costs. To determine the probable cost of performance, an agency may adjust the amounts an offeror proposed for given elements to reflect what the agency believes is realistic–the most probable cost. When an agency adjusts an offeror’s proposed amount and the offeror is not selected for award, those adjustments can become a ground for protest at GAO or the CFC. 
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Although this blog focuses on numerous issues of interest to the Government contracts community, two types of disputes that get significant attention here are False Claims Act lawsuits and bid protests. Recently, DOJ and GAO issued their annual reports on the volume of activity with respect to such cases, and although these reports are a few weeks old, we wanted to briefly summarize the reports.
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Editor’s note: This is first post in a series focused on protest allegations related to cost and price analyses. Planned future posts will discuss limits on the adjustments an agency can make, benchmarks an agency may use in a realism analysis, the role of an offeror’s technical approach in a price/cost realism analysis, price reasonableness, and recent protest decisions involving cost/price analysis issues.  

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Disappointed offerors often challenge an agency’s price or cost realism analysis in a bid protest. Contractors should be familiar with the differences between cost and price realism, when each analysis is required, and the relevant FAR provisions. Understanding these foundational concepts is essential when considering or litigating a protest that raises cost or price realism analysis issues; it can be helpful when responding to a solicitation that anticipates a price or cost realism analysis.


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The GAO recently sustained a protest because the agency failed to adequately consider a False Claims Act (FCA) case that was pending against the awardee’s parent corporation. The GAO’s decision in FCi Federal, Inc. represents a rare intersection of the FCA and GAO’s bid protest jurisdiction. The decision also provides an example of a successful challenge to an affirmative responsibility determination–an issue GAO will generally not review.

Fraud Concept - Magnifying Glass.


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Group of Business People Discussing Business IssuesEditor’s note: This is the fifth and final post in a series focused on protest allegations related to discussions with offerors. Previous posts in the series addressed (1) differences between clarifications and discussions, (2) the requirements for discussions to be meaningful, (3) misleading discussions, and (4) unequal discussions. It’s been fun, but there’s only so much to discuss about discussions (for now).

As this series has shown, disappointed offerors often raise protest allegations related to discussions. Although protesters frequently allege that discussions were unequal, misleading, or not meaningful, challenges based on these allegations can be difficult to win. In researching decisions to include in this round-up, I found only two decisions issued in 2014 sustaining a protest based on a discussions issue: Kardex Remstar LLC, which was discussed in the series’ first post, and Marathon Medical Corp.). Of course, although many of the protests discussed didn’t result in sustained protests based on the facts presented, they often provide useful insights for contractors in developing new claims and are worth close study.
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