Even More GAO Cases

There is a lot of discussion about the authority to "Bundle" requirements. In Health & Human Services Group, B-294703, The GAO denied a protest against bundling and upheld the combination of two requirements into one solicitation. GAO did limit its consideration to bundling under the Small Business Act and not the Competition in Contracting Act.

In the final analysis, the solicitation requires the contractor to furnish two separate sets of personnel, one to perform EAP services that require confidentiality, and a second to perform DFWP services that require disclosure of testing information; the mere fact that the contractor is providing both sets of employees does not, in and of itself, present a potential conflict in light of the RFPs safeguards relating to the location of these personnel and their records (as well as the EAP personnels confidentiality obligations). There thus is no basis to conclude that combining the two functions is improper.

In a case involving the evaluation of past performance, Cooperative Muratori Riuniti, B-294980, GAO sustained a protest where the agency did not provide a "reasonable" explanation for distinguishing between offeros' past performance. The case is somewhat lengthy but well worth reading for its analysis of what an agency must consider in distinguishing past performance.

GAO synopsis:

1. In evaluating proposals for construction work, agency has not provided a reasonable basis for distinguishing between offerors' experience in performing multiple projects at multiple sites under a single contract and offerors' experience in performing multiple projects at multiple sites under multiple contracts, particularly where solicitation called for performance at two separate work sites.

2. Protest against evaluation of past performance is sustained where record reveals that protester's past performance was re-rated by the evaluators on a different scale and in response to different questions than those posed to the references, and it is not clear that the new ratings were reasonably based.

3. Evaluators reasonably rated protester's proposed construction schedule as good, as opposed to excellent, where they determined that protester had offered an accelerated schedule, but had failed to offer evidence that it had thought through the implications of that schedule with regard to matters such as staffing.

GAO in MTB Group, Inc., B-295463, denied a protest against the use of a reverse auction in a simplified acquistion. The protestor had claimed that it resulted in the improper disclosure of price information.

GAO synopsis:

Protest that conducting procurement using reverse auction format is impermissible because vendors' prices will be disclosed during the auction is denied; agency is conducting reverse auction under simplified acquisition procedures, which encourage use of innovative procedures and do not expressly prohibit disclosure of vendors' prices in implementing such procedures, and disclosure is not prohibited under the procurement integrity provisions of the Office of Federal Procurement Policy Act.