Category: Elizabeth N. Jochum

60-Second Sustains: Deloitte Consulting LLP and Softrams LLC

Elizabeth N. Jochum ●

Deloitte Consulting LLP
B-422094; B-422094.2

  • During the evaluation of the awardee’s quotation, the Department of Homeland Security identified a potential Organizational Conflict of Interest (“OCI”) with one of the awardee’s proposed teaming partners.
  • The Agency engaged in discussions with the awardee, in which the awardee informed the Agency that the teaming partner with the potential OCI would be immediately removed from the team and would not participate in the program upon award.
  • Deloitte argued that the agency failed to consider the impact of the teammate’s removal on the awardee’s proposed approach to performance.
  • The Agency provided declarations asserting that the agency had considered the elimination of the teaming partner and its impact on performance, but the Government Accountability Office (“GAO”) found that those declarations were unsupported by the contemporaneous record and gave them little weight.
  • GAO sustained the protester’s argument that the Agency’s evaluation was unreasonable because it failed to consider the elimination of the teaming partner.

Deloitte Consulting LLP; Softrams, LLC
B-421801.2,B-421801.3,B-421801.4,B-421801.5,B-421801.6

DISPARATE TREATMENT

  • Both protesters alleged numerous instances where the Library of Congress engaged in disparate treatment by assessing strengths for elements of the awardees’ proposals that were substantially indistinguishable from the protesters’ proposal features that did not receive strengths.
  • In most cases, the Agency argued that the strengths in question stemmed from differences between the proposals or that the protesters’ proposal features were, in fact, captured in the evaluation. However, in a few instances, the Agency instead argued that the disparate treatment was insignificant or did not prejudice the protesters.
  • GAO found these instances amounted to a concession by the Agency that there had been disparate treatment and sustained these protests, since the competition was extremely close and any change in competitive standing could have impacted source selection.
Continue reading “60-Second Sustains: Deloitte Consulting LLP and Softrams LLC”

60-Second Sustains: American Material Handling, Inc.

Elizabeth N. Jochum ●

American Material Handling, Inc.
B-422171

  • The Agency, the International Boundary and Water Commission, was buying a brand name or equal wheel loader on a lowest price, technically acceptable basis.
  • The RFQ stated that the proposed loader had to “meet the salient features or specifications of the [brand name product] or exceed the specifications attached,” and included a two-page specification sheet.
  • After receiving quotations, the contracting officer added salient characteristics—not expressly included in the solicitation—to the technical evaluation form to be considered during evaluations.
  • The Agency evaluated the two quotes received and found the protester not technically acceptable based on the salient characteristics added after submission of quotes.
  • GAO sustained the protest of the evaluation, noting that, in a “brand name or equal” acquisition, the agency has an obligation to inform vendors of the characteristics that are essential to the government’s needs; a product offered as an “equal” one need not meet unstated features of the brand name product.
  • Here, GAO found the agency “appeared to be deciding what characteristics it considered to be salient for the first time during its evaluation of quotations.”

60-Second Sustains: SierTek-Peerless JV LLC

Elizabeth N. Jochum ●

SierTek-Peerless JV LLC
B-422085, B-422085.2

  • The protester alleged that the Transportation Security Administration had not properly evaluated the awardee’s proposal under the prior experience factor.
  • The RFP required the agency to consider the size of offerors’ prior experience examples compared to the anticipated contract.
  • The Agency assigned the awardee a High Confidence rating under this factor, stating that they had demonstrated prior experience that was relevant in terms of both size and scope.
  • But the Government Accountability Office (“GAO”) found that the evaluation record failed to demonstrate that the Agency evaluated whether the size of the awardee’s prior experience examples were similar to the anticipated contract.
  • The evaluation report contained “little, if any discussion of any indicia of the size” of one of projects and conclusory statements that the other projects were similar in size, without any discussion of why and despite differing values and staffing numbers.
  • GAO found that the agency’s evaluation focused almost entirely on scope, rather than size, of the prior experience examples.
  • Since prior experience was the most important evaluation factor, GAO stated the protester was possibly prejudiced by the error and recommended the Agency reevaluate proposals.

Blank Rome Attorneys Appointed to American Bar Association’s Public Contract Law Section Leadership for the 2023–2024 Term

Blank Rome LLP is pleased to announce that nine attorneys from the firm’s nationally recognized Government Contracts group have been appointed to leadership roles in the American Bar Association’s (“ABA”) Public Contract Law Section for the 2023–2024 term, marking the highest number of ABA Public Contract Law Section leadership positions held by our attorneys in the firm’s history.

Visit our website to learn more about their roles and the Section of Public Contract Law.

Two Recent Blank Rome Team Recognitions

We’re pleased to share two recent accomplishments of our Government Contracts attorneys.

They’ve Got Next: Government Contracts Fresh Face Elizabeth Jochum

Blank Rome partner Elizabeth N. Jochum has been featured in Bloomberg Law’s “They’ve Got Next” series, which spotlights young lawyers who are “raising the bar in various practice groups.”

Elizabeth is one of five attorneys featured in the government contracts installment. The featured attorneys “work at the intersection of litigation, regulation, and government procurement” as they navigate and defend clients against bid protests.

Read more, including an excerpt of Elizabeth’s “They’ve Got Next” spotlight, as published in Bloomberg Law, on our website.

Justin A. Chiarodo Named to Law360’s 2023 Aerospace & Defense Editorial Advisory Board

Blank Rome LLP is pleased to announce that partner Justin A. Chiarodo, who serves as chair of our firm’s Aerospace, Defense & Government Services industry team and Government Contracts practice group, has been named to Law360’s 2023 Aerospace & Defense Editorial Advisory Board.

Learn more about the board and Justin on our website.

60-Second Sustains: Life Science Logistics, LLC

Elizabeth N. Jochum ●

Life Science Logistics, LLC
B-421018.2, .3

  • The protester alleged that GSA failed to conduct meaningful discussions by not raising, in pre-corrective action discussions, significant weaknesses that resulted in the proposal being rated unacceptable in a post-corrective action evaluation.
  • GAO has held that, when an agency seeks revised proposals and performs a new evaluation, that reevaluation may identify flaws in a materially unchanged proposal that the agency would have been required to discuss with the offeror, had the flaws been identified when the proposal was initially evaluated.
  • In that situation, the agency must reopen discussions in order to disclose its concerns.
  • GSA argued Life Science’s pre- and post-corrective action proposals were materially different, but GAO found that the content that gave rise to the significant weaknesses was present in both proposals but had been overlooked in the initial evaluation.
  • Since the Agency did not advise Life Science of the significant weaknesses in its initial proposal when conducting discussions, GAO sustained the protest and recommended GSA reopen the procurement, conduct meaningful discussions, and evaluate revised proposals.

Law360: Gov’t Contracts Group of the Year: Blank Rome

Law360, February 17, 2023

Blank Rome’s Government Contracts group was recently named a 2022 Practice Group of the Year by Law360, which honors “the attorney teams behind litigation wins and major deals that resonated throughout the legal industry this past year.” Blank Rome is one of five firms recognized in the Government Contracts practice group category nationwide. 

Read the group’s full Practice Group of the Year profile, as published in Law360, on our website.

FY 2022 Sees Number of Protests Fall, Solicitation Challenges Join the List of Most Likely Protest Grounds to Be Sustained

Luke W. Meier and Elizabeth N. Jochum ●

The Government Accountability Office (“GAO”) has released its Annual Report to Congress summarizing bid protest activity for Fiscal Year 2022 (GAO-23-900462). The report mostly shows a continuation of recent trends: the overall number of GAO protests continues to drop, “effectiveness” remains high and stable (51 percent), and there are very few hearings (two for the year). Of note, preaward solicitation challenges were one of the most successful types of protest at GAO, for the first time ever since GAO began reporting the bases for successful protests in 2013. Below we break down what contractors can glean from this latest report.

Overall numbers down

The total number of protests filed at GAO continues to fall. The chart below shows the number of protest actions reported by GAO over the last several years.

Continue reading “FY 2022 Sees Number of Protests Fall, Solicitation Challenges Join the List of Most Likely Protest Grounds to Be Sustained“

60-Second Sustains: Tech Marine Business, Inc.

Elizabeth N. Jochum ●

Tech Marine Business, Inc.
B-420872.1, .2, .3

  • The protester alleged that it should have been assigned a strength for its transition plan, which exceeded the Navy’s schedule for workload turnover and would be completed “well in advance[] of the 60-day requirement.”
  • The Agency argued that, as GAO has held, it is not required to document determinations of adequacy or explain why a proposal did not receive a strength for a particular item. The Agency represented that it reviewed the protester’s transition plan and did not consider the proposed ability to transition faster than the 60-day requirement to be a strength.
  • GAO found this insufficient and that the agency “provides no explanation—contemporaneous or otherwise—to support the reasonableness of its evaluation of Tech Marine’s transition plan.”
  • GAO stated it failed to see, and the Agency failed to explain, why exceeding the transition schedule would not benefit the Agency.
  • GAO recommended the Agency reevaluate Tech Marine’s proposal and make a new source selection determination.

60-Second Sustains: R&K Enterprise Solutions, Inc.

Elizabeth N. Jochum ●

R&K Enterprise Solutions, Inc.
B-419919.6, .7, .8

  • The protester alleged the Air Force’s best-value tradeoff decision was unreasonable because it consisted of a “mechanical comparison of point scores that did not take into account the underlying bases for those scores” and because the source selection authority only considered the awardee’s proposal and did not compare the merits of the offerors’ proposals.
  • GAO agreed, noting that the award determination document discusses only the awardee’s proposal, with no reference to R&K’s proposal.
  • The Agency had argued that the selection authority had relied on the evaluation board’s recommendation and rationale, but GAO found that, even if that were the case, that recommendation was “based entirely on a mechanical evaluation of point scores” without a qualitative comparison of underlying strengths and weaknesses and was therefore unreasonable.
  • GAO recommended the agency perform and document a proper best-value tradeoff.
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