Jackson Kelly PLLC

Government Contracts Monitor

Clarifications and Discussions

Changing Key Personnel After Proposal Submission? Not So Fast....

As the GAO recently determined, and the Court of Federal Claims affirmed, an offeror who finds itself in a position of having to modify key personnel specified in its proposal, after the deadline for proposal submission, may end up with an unacceptable proposal.  If an agency notified offerors that it might award without discussions, an offeror will not be able to "re-open" the proposal process to…

When Do Agency Restrictions on Proposal Revisions during Corrective Action Go Too Far?

Contractors often “win” a protest when the agency decides to take corrective action in the form of discussions and revised proposals, only to find that the agency limits the nature of the allowed revisions so that contractors cannot make all the necessary changes to its new proposal. As the recent decision in Deloitte Consulting, LLP, B-412125.6 (November 28, 2016), makes clear, contractors in…

Sometimes the Facts Revealed During a Protest Demonstrate a Lack of Government “Monkey Business”

Disappointed bidders always have to decide whether or not to protest based on a limited set of facts – those known at the time to decision is made. Of course, this means that even protest grounds that appear objectively sound at the time of protest can later be undercut by facts revealed during the protest process. This appears to be precisely what happened in the recent Government Accountability…

Beyond Spoon-Feeding: When an Agency Holds Out in Discussions

In a negotiated procurement, it is axiomatic that, when discussions are initiated, an agency must hold “meaningful discussions” with all offerors. On the other hand, the Government Accountability Office (GAO) has held time and again that an agency need not “spoon-feed” an offeror by identifying every area in which an offer could be improved.  In Crowley Logistics, Inc., the GAO addressed the…

Short Take: Agencies Still Aren’t Required to Tell You When Your Price Is Not Competitive

Last Spring, we published an article explaining that the requirement that discussions be "meaningful” does not ensure you will obtain any information about your proposed price.  The recent Government Accountability Office decision in Southeastern Kidney Council, B-412538 (March 17, 2016) makes clear that the GAO has not changed its mind on this issue.

The decision involved a protest by the…

 

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