Posted on 12/9/2011 12:33 PM

Recently, GAO denied a protest brought by three travel agencies in which the protesters argued the restrictions on submitting claims for faulty estimates of work on a solicitation for a requirements type contract unduly restricted competition and imposed undue risks on small businesses. The solicitation said travel fees would be fixed priced and would not be adjusted if actual quantities of transactions varied from the estimated quantities. “Out of scope” changes would be recognized, whatever that means in this context.

GAO denied the protest largely based on the agency’s showing that the historical data on ordering was fully disclosed to all bidders and it showed some consistency in ordering. The risk level was acceptable to the folks in the GAO ivory tower.
The important point about the protest decision is that the bidders (we use bidders generically to also cover offerors) are well advised to protest solicitation issues in a timely fashion which is before the time for submission of offers. Often the solicitation contains ambiguities. If they are apparent on the face of the solicitation (bidders are not required to ferret out hidden ambiguities), they should be raised with the agency and if necessary protested to GAO. If the solicitation inhibits or restricts competition or creates undue risks, the time to raise the issue is before submission of offers. 
Recently, we’ve written about a particular blight on the procurement landscape: the tendency to solicit indefinite quantity work on fixed priced basis. It is an effort by the government to use time and materials as required and yet disguise the uncertainty by asking for fixed prices on what appears to be the maximum amount (not stated as such). This bait to fixed prices is then switched to what amounts to  time and materials. Bait and switch. 
We’ve heard too many stories of companies bidding fixed prices only to be told they will not be paid the fixed prices because all of the work really is not needed or it is going in house. The time to raise the problem is before you bid. If you have any doubt about the meaning of the language in the solicitation, you should immediately raise the issue with the contracting officer. If you are not satisfied with the response, protest to GAO.


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