Many government contractors are part of corporate families consisting of multiple corporate entities.  One entity may be named as the official contracting party, but use the resources of affiliates, parents, or subsidiaries during performance.  The distinction between those members of the corporate family may not seem important in terms of day-to-day operations — in fact, the synergy and seamlessness between the corporate entities may be a selling point.  Two recent GAO decisions make clear, however, that when it comes to bidding on government work, it is important to precisely identify which corporate entity is going to do what and which corporate entity has which resources.

In BDO USA, LLP and Intermarkets Global USA, LLC, GAO’s decisions turned on a perceived misidentification of corporate entities at some point in the procurement process.  In BDO, the problem occurred during bid submission.  In Intermarkets, the problem occurred when the protest was filed.

Continue Reading Still Just A Rat In A CAGE: Recent GAO Decisions Underscore the Need for Precision in Identifying Corporate Entities During the Procurement Process

The U.S. Government Accountability Office (GAO) recently denied a protest challenging as unduly restrictive an express prohibition on the use of consultants to develop a proposed technical approach. The GAO concluded that such a prohibition is similar to an agency’s decision when evaluating proposals to only consider the experience and past performance of an offeror. This conclusion, if relied upon in future solicitations, could have a significant impact on both large and small contractors that rely on third parties when drafting proposals.

The solicitation at issue contemplated the award of multiple indefinite-delivery, indefinite-quantity contracts for the provision of “total” information technology service solutions to the U.S. Department of Veterans Affairs (VA). The solicitation instructed offerors to describe a proposed technical approach for “sample tasks” identified in the solicitation as a means to “test” offerors’ “expertise and innovative capabilities” to respond to circumstances that could arise during contract performance. Offerors were prohibited from using consultants to develop their proposed technical approach for sample tasks. Although an offeror could rely on consultants when drafting other components of its proposal, the offeror’s proposed technical approach for sample tasks had to be the “work of the Offeror” and any subcontractor with which the offeror had a formal teaming arrangement.

Continue Reading GAO Upholds Restriction on Using Consultants to Develop a Proposed Technical Approach