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Procurement

■GAO procedures

Protest timeliness

☐☐☐ 10-day rule

■ Adverse agency actions

Letter to agency stating intent to protest rejection of proposal which does not state any basis for protest is not sufficient to constitute a protest to agency; in any event, agency-level protest must be filed within 10 working days of date protester knew the basis for its protest.

GAO procedures

Protest timeliness ☐☐☐ 10-day rule

Forum election

43

The fact that protest is first filed with General Services Administration Board of Contract Appeals and dismissed without prejudice for lack of jurisdiction does not preclude subsequent filing at General Accounting Office within 10 days of when protester originally learned its basis for protest.

■GAO procedures

Protest timeliness

☐☐☐ Apparent solicitation improprieties

295

Protest against alleged apparent defects in evaluation criteria for architect-engineer selection is untimely where filed after the date specified for receipt of qualification statements from the competing firms.

GAO procedures

684

Protest timeliness

■■■Apparent solicitation improprieties

Protest alleging apparent defects in a request for proposals is untimely where it was not filed prior to the closing date for receipt of initial proposals.

■GAO procedures

Protest timeliness

☐☐☐ Apparent solicitation improprieties

112

Protest of solicitation's misdescription of surplus scrap metal is untimely where protester was aware that property was misdescribed and that agency would request waiver of liability for the misdescription prior to bid opening but did not file a protest with the agency until after bid opening.

67

Procurement

■GAO procedures

Protest timeliness

☐☐☐ Apparent solicitation improprieties

Protest that technical specifications were unduly restrictive of competition is untimely where this
alleged impropriety is apparent from the request for quotations but is not filed prior to the closing
time for receipt of quotations.

■GAO procedures

Protest timeliness

☐☐☐ Delays

☐☐☐☐ Agency-level protests

432

Where protester waits 8 months to receive the procuring agency's final decision on its agency-level
protest, before filing a protest at the General Accounting Office and in the interim performance is
completed under the contract, the protest is untimely because the protester failed to diligently
pursue the protest.

GAO procedures

Protest timeliness

☐☐☐Significant issue exemptions

■■■■ Applicability

439

Protest presents a significant issue justifying consideration on the merits even if it is untimely filed
where, based on the fully developed record, it is clear that the issues raised involve improper agency
action inconsistent with statute and regulation.

Moot allegation

GAO review

Subcontracts

GAO review

473

Protest of a subcontract awarded by a government prime contractor is dismissed where the subcon-
tract is not "by or for" the government.

Subcontracts

☐☐GAO review

376

The General Accounting Office will not consider a bid protest of a subcontractor selection by an
Environmental Protection Agency (EPA) emergency response clean-up contractor, even assuming
EPA effectively directed the subcontractor selection, since the EPA involvement was not so perva-
sive that the contractor would be considered a mere conduit for an EPA acquisition.

635

Procurement

Competitive Negotiation

Best/final offers

■■Technical acceptability

Negative determination

Propriety

Protester's proposal was properly rejected as technically unacceptable where protester's best and final offer did not comply with material, mandatory requirements under the request for proposals. An offeror should not expect to be granted an additional opportunity to clarify or revise its proposal after submission of best and final offers.

708

■Competitive advantage

■Conflicts of interest

☐☐☐ Post-employment restrictions

■■■■ Allegation substantiation

Protest that proposed awardee's employment of a former agency employee as its program manager constitutes a conflict of interest which should disqualify the firm from the award is denied where the record does not show that any action by the former agency employee resulted in prejudice for, or on behalf of, the proposed awardee or establish violation of post-employment restrictions on government employees.

Competitive advantage

Conflicts of interest

☐☐☐ Post-employment restrictions

Allegation substantiation

6

Statutes barring retired military officer from representing other parties before military department within 2 years of retirement and permanently barring officer from representing parties before government concerning matters in which officer was personally and substantially involved are, either by explicit statutory language or agency regulation, not applicable to retired enlisted military personnel.

332

■Competitive advantage

■■Non-prejudicial allegation

An agency is not required to cast its procurement in a manner that neutralizes the competitive advantages some firms may have over the protester by virtue of their own particular circumstances.

57

Procurement

Competitive advantage
Privileged information

■■■Disclosure

Competitive restrictions

Preferred products/services

Domestic sources

Contract awards

| Administrative discretion

Cost/technical tradeoffs

Cost savings

Allegation that agency made improper price/technical tradeoff is denied where, contrary to protest-
er's assumption that its proposal was higher technically rated than awardee's, award was made to
lower priced offeror whose proposal received a higher technical score.

Contract awards

| Administrative discretion
Cost/technical tradeoffs

Cost savings

75

Contracting agency may accept a technically lower rated proposal to take advantage of its lower
costs, even though cost is the least important evaluation criterion, so long as agency reasonably de-
cides that the cost premium involved in an award to a higher-rated, higher-cost offeror is not war-
ranted in light of the acceptable level of technical competence available at the lower cost.

Contract awards

■Administrative discretion

■ Cost/technical tradeoffs

☐☐☐☐ Technical superiority

714

Contracting agency acted reasonably in selecting for award an offeror proposing a superior docu-
ment handling approach over an offeror proposing a less expensive system where the solicitation
provided technical factors would be worth 70 percent in the evaluation.

Contract awards

Administrative discretion

■■Technical equality

Cost equality

249

Where selection official, after evaluation of proposals on a basis consistent with the solicitation's
stated scheme, reasonably regards technical proposals as essentially equal and perceives no cost ad-

Procurement

vantage in either proposal, base and award fees may become the determinative selection factor for award of a cost-plus-award-fee contract where this is consistent with stated evaluation factors.

O Contract awards

Administrative discretion ☐☐☐ Technical equality

Cost savings

25

25

Notwithstanding greater importance of other factors in overall evaluation scheme, agency may make award to lower-cost offeror where record establishes that contracting officer had determined proposals to be technically equal and that he had previously advised offerors at the preproposal conference (subsequently confirmed in writing to all offerors) that the agency would use cost as a tiebreaker in the event proposals were rated technically equal.

Contract awards

Award pending appeals

☐☐☐ Multiple/aggregate awards

■■■■ Propriety

25

25

Where the solicitation contemplates multiple contracts for services required at many different locations throughout the country, and a protest has been filed against proposed awards at some but not all of those locations, the stay provision of the Competition in Contracting Act of 1984, 31 U.S.C. § 3553(c)(1) (Supp. IV 1986), requires the contracting agency to refrain from making awards only on those proposed contracts that are the subject of the protest.

| Contract awards

Initial-offer awards

Discussion

■■■■ Propriety

314

Contracting agency improperly made award on the basis of initial proposals, without discussions, where the record does not clearly show that the contract awarded will result in the lowest overall cost to the government.

| Contract awards

■■Propriety

■Corporate entities

334

Generally, firm that is owned or controlled by federal employees is not eligible for award of contract and is not an interested party to protest since it would not be in line for award even if its protest were sustained. Firm is an interested party, however, where federal employees that own and control firm were eligible to retire and indicated in their proposal their willingness to retire from govern

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