Showing posts with label bid protests. Show all posts
Showing posts with label bid protests. Show all posts
Friday, August 2, 2019
GAO Bid Protests - Chances of Success
The Comptroller General's (i.e. Government Accountability Office or GAO) Office receives an average of eleven bid protests every day. Most of these are withdrawn before GAO needs to make a decision on the merits of the protest. In fiscal year 2018, three-quarters of these protests were withdrawn but that leaves about 600 or so cases that the GAO needs to decide upon (roughly 2.5 per day on average). What is the success rate for bid protests? Not too good. Only 15 percent are decided in favor of the bid protestor. Why so low of a rate? The short answer is that the Government, the contracting officers, have become much better over the years in justifying and documenting their award decisions and the GAO finds no bases to overturn those decisions.
With the GAO pumping out two and a half decisions a day, it would take a significant amount of time to follow and catalog those decisions. Perhaps there are firms in the business of representing bid protesters who do so. For the typical business who wants to represent itself in a bid protest case, it is a challenge to fully understand and look for precedents among all of these decisions.
Many challenges are based on the premise that the Government did not give adequate (or fair) consideration in rating the proposal submission against the stated evaluation factors or used unstated evaluation factors in its award decision. But these arguments rarely succeed because the GAO found that the solicitation instructions are clear. Clearly stated solicitation requirements are considered material to the needs of the Government and a proposal that fails to conform to material terms is unacceptable and may not form the basis for an award.
In cases involving unstated evaluation criteria, the GAO often cites a previous case (Northrop Grumman) where it held that "Although agencies are required to identify in a solicitation all major evaluation factors, they are not required to identify all areas of each factor that might be taken into account in an evaluation, provided that the unidentified areas are reasonably related to, or encompassed by, the stated factors.
Even though the chances of sustaining an appeal are slim, the cost (a couple of hundred dollars if you do it yourself), weighed against the potential rewards (a contract with profit) make it an easy decision for many to pursue the dispute process.
Thursday, March 28, 2019
Future 8(a) Status is not an Evaluation Factor if not Specifically Stated
The SBA's 8(a) business development program is designed to help small, disadvantaged businesses compete in the federal marketplace. It has helped thousands of aspiring entrepreneurs to gain access to Government contracts. To qualify, small businesses must be owned and controlled at least 51 percent by socially and economically disadvantaged individuals who are American citizens. It also helps to be able to demonstrate potential for business success and possess good character.
Participation in the 8(a) business development program is divided into two phases covering nine years - a four-year developmental stage and a five-year transition stage. The goal is to graduate businesses that will go on to thrive in a competitive business environment.
There are significant benefits to program participation not the least of which is the ability to bid on contracts that are "set-aside" specifically for 8(a) contractors. One such set-aside was a solicitation issued last year by the Energy Department for mission-oriented technical support services (whatever that term means). There were three 8(a) bidders for the work including Boston Government Services (BGS) who ultimately won the award based on its highest technical rating and lowest cost, and Redhorse Corporation.
When Redhorse learned that it had lost the bid, it appealed to GAO (Government Accountability Office) on the grounds that BGS would be graduating from the SBA 8(a) business development program within 14 months at which time it would be unable to fulfill the remainder of the 48 month contract. BGS would need to certify its 8(a) status each time an order was placed under the resulting BPA (blanket purchase agreement). Redhorse, on the other had would retain its 8(a) status throughout the 48 month period of performance.
How do you suppose the GAO ruled on this bid protest?
The GAO found no merit to Redhorse's allegation because the solicitation did not require the Energy Department to consider each vendor's future 8(a) eligibility when evaluating quotations. None of the six specific evaluation factors required it to consider a vendor's future 8(a) eligibility. GAO denied the protest.
The full GAO decision can be found here.
Participation in the 8(a) business development program is divided into two phases covering nine years - a four-year developmental stage and a five-year transition stage. The goal is to graduate businesses that will go on to thrive in a competitive business environment.
There are significant benefits to program participation not the least of which is the ability to bid on contracts that are "set-aside" specifically for 8(a) contractors. One such set-aside was a solicitation issued last year by the Energy Department for mission-oriented technical support services (whatever that term means). There were three 8(a) bidders for the work including Boston Government Services (BGS) who ultimately won the award based on its highest technical rating and lowest cost, and Redhorse Corporation.
When Redhorse learned that it had lost the bid, it appealed to GAO (Government Accountability Office) on the grounds that BGS would be graduating from the SBA 8(a) business development program within 14 months at which time it would be unable to fulfill the remainder of the 48 month contract. BGS would need to certify its 8(a) status each time an order was placed under the resulting BPA (blanket purchase agreement). Redhorse, on the other had would retain its 8(a) status throughout the 48 month period of performance.
How do you suppose the GAO ruled on this bid protest?
The GAO found no merit to Redhorse's allegation because the solicitation did not require the Energy Department to consider each vendor's future 8(a) eligibility when evaluating quotations. None of the six specific evaluation factors required it to consider a vendor's future 8(a) eligibility. GAO denied the protest.
The full GAO decision can be found here.
Tuesday, March 26, 2019
An Adequate Incurred Cost Proposal does not Prove an Adequate Accounting System
GSA issued a solicitation for information technology services. Award was to be made based on which offerors presented the highest technically rated proposals with fair and reasonable prices. GSA also noted that it would strictly enforce all of the proposal submission requirements and failure to comply with those requirements would result in rejection as being materially non-conforming to the solicitation requirements.
Offerors were required to include verification of an acceptable cost accounting system ("CAS") if they claimed points for possessing an acceptable CAS on the scoring worksheet. Specifically, offerors needed to:
Ultimately, GSA awarded IDIQ (indefinite-delivery, indefinite-quantity) to 81 contractors. Citizant, Inc. had submitted a proposal but was not one of the 81 contractors selected for the IT work. Citizant appealed the award on the grounds that the contracting officer made errors when evaluating proposals from other offerors who were subsequently awarded contracts.
Two of the offerors attempted to validate the adequacy of their cost accounting systems by submitting letters from DCAA addressing the adequacy of their incurred cost proposal (ICP). In those letters, DCAA stated that the ICP's were adequate and had not been selected for audit. The contracting officer reasoned that since ICPs are submitted for cost-type contracts and cost-type contracts cannot be awarded to a firm that does not have an adequate cost accounting system, the letters from DCAA were sufficient to conclude that the offerors had accounting systems that had been audited and determined adequate for cost-reimbursement contracting.
Citizant asserted that those offerors' submission of a letter from DCAA concerning their ICPs does not reflect that their accounting systems were audited and determined adequate for cost accounting purposes. GSA countered that the contractors provided the necessary information in the DCAA letters they submitted because an ICP is submitted by a contractor performing a cost-reimbursement contract, and can only be used if the contractor's CAS has been deemed adequate.
The U.S. Court of Federal Claims who decided the protest determined that GSA's contracting officer's conclusion was irrational for two reasons.
First, DCAA's review of an ICP is not unequivocal evidence that the contractor has an adequate CAS. ICPs are required for both cost-reimbursement and T&M contracts. An adequate accounting system is not required for T&M contracts. Since it was not evident that the ICPs pertained to cost-type contracts, it was unreasonable for the contracting officer to rely on DCAA letters that stated the ICPs were adequate. Secondly, and perhaps more damaging to GSA, the Court cited examples where government contractors had received cost-reimbursement contracts without having an adequate cost accounting system.
In sum, the contracting officer could not rationally conclude that DCAA letters unequivocally indicated that the contractors possessed cost accounting systems that DCAA had audited and deemed adequate. He therefore acted arbitrarily and capriciously when he relied on the letters to validate the points those offerors claimed for maintaining an acceptable cost accounting system.
The full decision is found here.
Offerors were required to include verification of an acceptable cost accounting system ("CAS") if they claimed points for possessing an acceptable CAS on the scoring worksheet. Specifically, offerors needed to:
provide verification from the Defense Contract Audit Agency [("DCAA")], Defense Contract Management Agency or any Cognizant Federal Agency [("CFA")] of an acceptable accounting system that has been audited and determined adequate for determining costs applicable to the contract or order in accordance with [Federal Acquisition Regulation("FAR")] 16.301-3(a)(3).In lieu of submitting a letter from the auditing agency, an offeror could submit a statement of certainty in which it averred that it possessed an audited and adequate CAS (Cost Accounting System). The contracting officer would then be obligated to contact the auditing agency to verify that the offeror's CAS was acceptable.
Ultimately, GSA awarded IDIQ (indefinite-delivery, indefinite-quantity) to 81 contractors. Citizant, Inc. had submitted a proposal but was not one of the 81 contractors selected for the IT work. Citizant appealed the award on the grounds that the contracting officer made errors when evaluating proposals from other offerors who were subsequently awarded contracts.
Two of the offerors attempted to validate the adequacy of their cost accounting systems by submitting letters from DCAA addressing the adequacy of their incurred cost proposal (ICP). In those letters, DCAA stated that the ICP's were adequate and had not been selected for audit. The contracting officer reasoned that since ICPs are submitted for cost-type contracts and cost-type contracts cannot be awarded to a firm that does not have an adequate cost accounting system, the letters from DCAA were sufficient to conclude that the offerors had accounting systems that had been audited and determined adequate for cost-reimbursement contracting.
Citizant asserted that those offerors' submission of a letter from DCAA concerning their ICPs does not reflect that their accounting systems were audited and determined adequate for cost accounting purposes. GSA countered that the contractors provided the necessary information in the DCAA letters they submitted because an ICP is submitted by a contractor performing a cost-reimbursement contract, and can only be used if the contractor's CAS has been deemed adequate.
The U.S. Court of Federal Claims who decided the protest determined that GSA's contracting officer's conclusion was irrational for two reasons.
First, DCAA's review of an ICP is not unequivocal evidence that the contractor has an adequate CAS. ICPs are required for both cost-reimbursement and T&M contracts. An adequate accounting system is not required for T&M contracts. Since it was not evident that the ICPs pertained to cost-type contracts, it was unreasonable for the contracting officer to rely on DCAA letters that stated the ICPs were adequate. Secondly, and perhaps more damaging to GSA, the Court cited examples where government contractors had received cost-reimbursement contracts without having an adequate cost accounting system.
In sum, the contracting officer could not rationally conclude that DCAA letters unequivocally indicated that the contractors possessed cost accounting systems that DCAA had audited and deemed adequate. He therefore acted arbitrarily and capriciously when he relied on the letters to validate the points those offerors claimed for maintaining an acceptable cost accounting system.
The full decision is found here.
Thursday, March 7, 2019
Solicitation Required Independent Verification - Not Self-Certification
Graham Technologies was one of 552 companies submitting proposals to DHHS (Department of Health and Human Services) for IT (Information Technology) supplies and services. There were a number of qualifying factors including verification that the company had an adequate accounting system. DHHS fund Graham's proposal unacceptable under the verification of an adequate accounting system requirement and therefore ineligible for further consideration.
Graham appealed the disqualification on the basis that DHHS's actions were unreasonable because Graham felt that it had complied with the requirement. Well, it either did or did not, right. That should be easy enough to figure out - unless the solicitation was ambiguous. But the solicitation was not ambiguous, according to the GAO who heard the appeal. The solicitation contained the following provision:
The GAO (Government Accountability Office) didn't buy Graham's argument. GAO stated it found DHHS's interpretation of the solicitation, when read as a whole, is reasonable, whereas (Graham's) interpretation is not". The solicitation clearly instructed offerors to provide evidence or verification from DCAA (or another independent source).
The GAO denied the protest. The full text of the GAO decision can be found here.
Graham appealed the disqualification on the basis that DHHS's actions were unreasonable because Graham felt that it had complied with the requirement. Well, it either did or did not, right. That should be easy enough to figure out - unless the solicitation was ambiguous. But the solicitation was not ambiguous, according to the GAO who heard the appeal. The solicitation contained the following provision:
... the Offeror must provide in its proposal a contact name and contact information . . . of its representative at its cognizant DCAA [Defense Contract Auditing Agency], DCMA [Defense Contract Management Agency], federal civilian audit agency, or third-party accounting firm and submit, if available, a copy of the Pre-Award Survey of Prospective Contracting Accounting System (SF 1408), provisional billing rates, and/or forward pricing rate agreements.Graham did provide an audit report number, the date of the report, and contact information for the cognizant DCAA office and representative. However Graham did not include any verification from DCAA itself. DHHS concluded that the information Graham provided did not satisfy the requirements of the solicitation to provide verification from DCAA. Graham argued that the term "if available" indicated that additional information was not necessary to satisfy the solicitation's requirements.
The GAO (Government Accountability Office) didn't buy Graham's argument. GAO stated it found DHHS's interpretation of the solicitation, when read as a whole, is reasonable, whereas (Graham's) interpretation is not". The solicitation clearly instructed offerors to provide evidence or verification from DCAA (or another independent source).
The GAO denied the protest. The full text of the GAO decision can be found here.
Thursday, February 28, 2019
"Bait and Switch" in Government Contracting
The term "bait and switch" in Government contract law sometimes refers to cases where awardees' listed certain key personnel in their proposals, then made extensive post-award submissions. For example, a Comptroller General case used the term in a case where the awardee proposed key personnel who never authorized the awardee to use their names.
A bait-and-switch has four elements: (i) the awardee represented in its proposal that it would rely on certain specified personnel in performing the services, (ii) the agency relied on this representation in evaluating the proposal, (iii) it was foreseeable that the individuals name in the proposal would not be available to perform the contract work, and (iv) personnel other than those proposed are performing the service.
The third element is the one that ends up in dispute. Does "foreseeable" require actual knowledge or is "negligence" sufficient to establish an improper bait-and-switch. Courts have ruled that negligence is the minimum level of knowledge necessary to establish the foresee-ability element of an improper bait-and-switch. Foreseeable has a plain meaning - being such as may be reasonably anticipated and lying within the range for which forecasts are possible. It requires that an offeror knew or should have know, at the time of proposal submission, that its proposed key personnel would be unavailable to perform.
In a recent bid protest decided by U.S. Court of Federal Claims, an offeror used the resume of a certain individual without that individuals permission. When it was awarded the contract, that individual declined the employment offer so the contractor substituted a different person. One of the unsuccessful bidders appealed on the bait-and-switch grounds and won the appeal.
Friday, February 1, 2019
Can the Government Consider Information that Occurs After Proposal Submission When Evaluating Proposals?
We all know that past performance and past performance evaluations play a significant role in the awarding of Government contracts. Most competitive solicitations include past performance as a significant evaluation factor and prospective contractors have the opportunity to put their best foot forward when compiling and submitting past performance information.
But what about past performance information that occurs after a proposal is submitted? That's the question that Federal Prison Industries (FPI) asked.
DLA (Defense Logistics Agency) issued a solicitation for shirts. Award was to be made on best-value trade-off basis considering (i) product demonstration models, (ii) past performance, and (iii) price.
Proposals were submitted in February 2018 but between April and August, there were performance problems on one of FPI's other contracts. The contracting officer noted that the Marine Corps had to reduce the number of shirts issued to soldiers, which was a direct customer impact. Although the contracting officer recognized that this information was after the proposal closing date, he/she concluded that it would not be appropriate to ignore relevant past performance information. Ultimately the contracting officer decided that FPI warranted an overall marginal rating for the quality and past performance factor and an overall rating of low confidence.
Ultimately, someone other than FPI was awarded the contract so FPI appealed the award.
The protest was denied meaning that contracting officers are allowed to consider any and all information, even if that information was not available at the time of proposal submission. The GAO noted that DLA was aware of additional information pertaining to contracts that FPI itself identified as being relevant, and therefore, indicative of FPI's ability to perform the resulting requirements.GAO has consistently recognized that an agency may properly use information known by its own evaluators, as with any other references, to aid in the evaluation of proposals.
The full GAO decision is available here.
But what about past performance information that occurs after a proposal is submitted? That's the question that Federal Prison Industries (FPI) asked.
DLA (Defense Logistics Agency) issued a solicitation for shirts. Award was to be made on best-value trade-off basis considering (i) product demonstration models, (ii) past performance, and (iii) price.
Proposals were submitted in February 2018 but between April and August, there were performance problems on one of FPI's other contracts. The contracting officer noted that the Marine Corps had to reduce the number of shirts issued to soldiers, which was a direct customer impact. Although the contracting officer recognized that this information was after the proposal closing date, he/she concluded that it would not be appropriate to ignore relevant past performance information. Ultimately the contracting officer decided that FPI warranted an overall marginal rating for the quality and past performance factor and an overall rating of low confidence.
Ultimately, someone other than FPI was awarded the contract so FPI appealed the award.
The protest was denied meaning that contracting officers are allowed to consider any and all information, even if that information was not available at the time of proposal submission. The GAO noted that DLA was aware of additional information pertaining to contracts that FPI itself identified as being relevant, and therefore, indicative of FPI's ability to perform the resulting requirements.GAO has consistently recognized that an agency may properly use information known by its own evaluators, as with any other references, to aid in the evaluation of proposals.
The full GAO decision is available here.
Friday, December 1, 2017
Suspension Lifted - Abuse Resumes - New Two-Year Suspension
Back in August of 2016, the GAO (Government Accountability Office) suspended Latvian Connection LLC from filing bid protests for one year. The reasons for the suspension were many but essentially, GAO found that Latvian Connection's protest filings were collections of excerpts cut and pasted from a wide range of documents having varying degrees of relevance to the procurements at issue, interspersed with remarks that were derogatory and abusive. After 450 or so of these filings, the GAO had had enough "abuse" and suspended the firm from filing bid protests for a year (See GAO Suspends Firm from Filing Bid Protests for a Year for a more in-depth analysis).
As soon as the suspension was lifted, Latvian resumed its practice of submitting numerous bid protests, once again comprised of excerpts cust and pasted from a wide range of documents that are largely irrelevant or fail to address the substantive and threshold issues raised by its protests even though GAO warned Latvian back in August that protest submissions must be concise and logically arranged. For example:
Because of this, GAO has once again suspended Latvian from filing bid protests, this time for a period of two years along with a stern warning:
As soon as the suspension was lifted, Latvian resumed its practice of submitting numerous bid protests, once again comprised of excerpts cust and pasted from a wide range of documents that are largely irrelevant or fail to address the substantive and threshold issues raised by its protests even though GAO warned Latvian back in August that protest submissions must be concise and logically arranged. For example:
Latvian Connection filed a 28-page statement containing dozens of excerpts, tables, computer screenshots, and pictures, interspersed with commentary (often derogatory) from the protestor. The statement is presented in a confusing array of text sizes, fonts, highlighting, and varying margins, rendering it unintelligible.Additionally,
Latvian Connection's filings continue to levy derogatory and abusive accusations towards agency and GAO officials, including baseless accusations of criminal activity (read the full text of the decision for specific examples).GAO noted that Latvian has continued to routinely and repeatedly file protests that are not legally sound and both GAO and the agencies must divert its collective time and resources to responding. Recent protests continue to place a burden on GAO, the agencies whose procurements were challenged, and the taxpayers, who ultimately bear the costs of the Government's protest-related activities. GAO therefore concluded that Latvian's practices undermine the effectiveness and integrity of the bid protest process and constitute an abuse of process.
Because of this, GAO has once again suspended Latvian from filing bid protests, this time for a period of two years along with a stern warning:
We also give notice that if Latvian Connection continues its abusive litigation practices after the end of this new suspension period, our Office may impose additional sanctions, including permanently barring the firm and its principal from filing protests at GAO.The full text of GAO latest Latvian decision can be downloaded/read here.
Tuesday, September 27, 2016
Protester Must Establish that a Flawed Government Evaluation was Prejudicial
Competitive solicitations are evaluated based on stated criteria and each criteria is ranked in order of importance. Each of those criteria may contain sub-factors which themselves are ranked in order of importance. Besides rankings in importance, the criteria are also ranked in significance to other evaluation criteria. Thus a solicitation might provide something along the lines of the technical evaluation criteria are to be considered significantly more important than cost.
For contractors filing bid protests, they must not only show the Government somehow erred in its evaluation, but that the error prejudiced their ability to win the award.It is well established that a protester must show not simply a significant error in the procurement process, but also that the error was prejudicial, if it is to prevail in a bid protest. In that regard, a party has been prejudiced when it can show that but for the error, it would have had a substantial chance of securing the contract.
If a bidder is ranked lower than other bidders in a "significantly more important" evaluation factor, it would have a difficult time proving that a Government flaw in the evaluation of a relatively insignificant evaluation factor prejudiced its ability to win the contract. If a protestor cannot demonstrate that it was prejudiced, the Courts or the Comptroller General will not even consider whether the Government's evaluation was flawed. That determination becomes moot.
If there is a tie among bidders on all evaluation criteria except the most insignificant, that is, bidders received identical adjectival ratings within each evaluation criteria, a protestor can then assert that it has been prejudiced by a flawed evaluation of the most insignificant criteria.
For contractors filing bid protests, they must not only show the Government somehow erred in its evaluation, but that the error prejudiced their ability to win the award.It is well established that a protester must show not simply a significant error in the procurement process, but also that the error was prejudicial, if it is to prevail in a bid protest. In that regard, a party has been prejudiced when it can show that but for the error, it would have had a substantial chance of securing the contract.
If a bidder is ranked lower than other bidders in a "significantly more important" evaluation factor, it would have a difficult time proving that a Government flaw in the evaluation of a relatively insignificant evaluation factor prejudiced its ability to win the contract. If a protestor cannot demonstrate that it was prejudiced, the Courts or the Comptroller General will not even consider whether the Government's evaluation was flawed. That determination becomes moot.
If there is a tie among bidders on all evaluation criteria except the most insignificant, that is, bidders received identical adjectival ratings within each evaluation criteria, a protestor can then assert that it has been prejudiced by a flawed evaluation of the most insignificant criteria.
Thursday, July 16, 2015
The Difference Between "Clarifications" and "Discussions"
FAR Part 13 prescribes policies and procedures for the acquisition of supplies and services that do not exceed the simplified acquisition threshold (currently $150,000). There is a special authority under FAR 13.500 for acquisition of commercial items that exceed the simplified acquisition threshol but not exceeding $6.5 million.
Simplified acquisition procedures are designed to reduce administrative expenses, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. When using these procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate proposals in accordance with the terms of the solicitation.
It is important for an agency, when conducting simplified acquisitions to ensure that the procurements are conducted consistent with a concern for fair and equitable competition with the therms of the solicitation. Although an agency is not required to conduct discussions under simplified acquisition procedures, where an agency avails itself of negotiated procurement procedures, the agency should fairly and reasonably treat offerors in the conduct of those procedures.
FAR 15.306 describes a range of exchanges that may take place when the agency decides to conduct exchanges with offerors during negotiated procurements. The two broadly stated exchanges are "clarifications" and "discussions". Clarifications are limited exchanges between an agency and an offeror for the purpose of eliminating minor uncertainties or irregularities in a proposal. Clarifications do not give an offeror the opportunity to revise or modify its proposal. Clarifications are not to be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal, or otherwise revise the proposal.
Discussions on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. As a general matter, when an agency conducts discussions with one offeror, it must afford all offerors remaining in the competition an opportunity to engage in meaningful discussions. Further, it is the actions of the parties that determines whether discussions have been held and not merely the characterization of the communications by the agency.
A recent bid protest decision handed down by the Comptroller General illustrates the difference between "clarifications" and "discussions". The Air Force issued a solicitation for a solid waste incinerator for use at Wake Island. Award was to be made to the vendor submitting the lowest-priced technically acceptable quotation that conformed to the terms of the solicitation. The solicitation advised that the Government intended to evaluate offers and award without discussion, but reserves the right to conduct discussions.
During the course of evaluating proposals, the Air Force communicated with the company that ultimately won the award in two critical areas. First, the offeror proposed progress payments instead of Net 30 upon delivery and second, the offeror proposed one line item as cost-reimbursable when the solicitation required firm-fixed price. The Air Force inquired concerning these discrepancies and the offeror was allowed to revise its bid.
The Air Force contended that its communications with the awardee were clarifications, not discussions. The Comptroller General disagreed. The contractor "...was permitted to revise portions of its quotation that did not comply with the solicitation's terms." When the Air Force communicated with the offeror about these discrepancies, the offeror altered its quotation,
The Air Force's communications with the awardee invited a response that was necessary to determine the acceptability of the quotation and , in fact, resulted in the offeror being permitted to supplement or alter its quotation. This is quintessentially the nature of discussions, not clarifications.
The Comptroller General (CG) concluded that the Air Force, having conducted discussions with the awardee, was required to also conduct discussions with all other vendors in the competition. The CG sustained the protest on that basis.
You can read the full text of the CG's decision here.
Simplified acquisition procedures are designed to reduce administrative expenses, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. When using these procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate proposals in accordance with the terms of the solicitation.
It is important for an agency, when conducting simplified acquisitions to ensure that the procurements are conducted consistent with a concern for fair and equitable competition with the therms of the solicitation. Although an agency is not required to conduct discussions under simplified acquisition procedures, where an agency avails itself of negotiated procurement procedures, the agency should fairly and reasonably treat offerors in the conduct of those procedures.
FAR 15.306 describes a range of exchanges that may take place when the agency decides to conduct exchanges with offerors during negotiated procurements. The two broadly stated exchanges are "clarifications" and "discussions". Clarifications are limited exchanges between an agency and an offeror for the purpose of eliminating minor uncertainties or irregularities in a proposal. Clarifications do not give an offeror the opportunity to revise or modify its proposal. Clarifications are not to be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal, or otherwise revise the proposal.
Discussions on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. As a general matter, when an agency conducts discussions with one offeror, it must afford all offerors remaining in the competition an opportunity to engage in meaningful discussions. Further, it is the actions of the parties that determines whether discussions have been held and not merely the characterization of the communications by the agency.
A recent bid protest decision handed down by the Comptroller General illustrates the difference between "clarifications" and "discussions". The Air Force issued a solicitation for a solid waste incinerator for use at Wake Island. Award was to be made to the vendor submitting the lowest-priced technically acceptable quotation that conformed to the terms of the solicitation. The solicitation advised that the Government intended to evaluate offers and award without discussion, but reserves the right to conduct discussions.
During the course of evaluating proposals, the Air Force communicated with the company that ultimately won the award in two critical areas. First, the offeror proposed progress payments instead of Net 30 upon delivery and second, the offeror proposed one line item as cost-reimbursable when the solicitation required firm-fixed price. The Air Force inquired concerning these discrepancies and the offeror was allowed to revise its bid.
The Air Force contended that its communications with the awardee were clarifications, not discussions. The Comptroller General disagreed. The contractor "...was permitted to revise portions of its quotation that did not comply with the solicitation's terms." When the Air Force communicated with the offeror about these discrepancies, the offeror altered its quotation,
The Air Force's communications with the awardee invited a response that was necessary to determine the acceptability of the quotation and , in fact, resulted in the offeror being permitted to supplement or alter its quotation. This is quintessentially the nature of discussions, not clarifications.
The Comptroller General (CG) concluded that the Air Force, having conducted discussions with the awardee, was required to also conduct discussions with all other vendors in the competition. The CG sustained the protest on that basis.
You can read the full text of the CG's decision here.
Thursday, September 4, 2014
Unequal Discussions?
Federal Acquisition Regulation (FAR) 15.306 in general, covers exchanges between the Government and companies that submit proposals after the Government receives those proposals. The emphasis here is on fair and consistent treatment among all offerors. FAR 15.306(d)(3) requires agencies to address during discussions, “[a]t a minimum . . . deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. Although discussions may not be conducted in a manner that favors one offeror over another, and offerors must be given an equal opportunity to revise their proposals, discussions need not be identical among offerors; rather, discussions need only be tailored to each offeror’s proposal.
Concerning a discussion on proposed prices, unless an offeror’s proposed price is so high as to be unreasonable or unacceptable, an agency is not required to inform an offeror during discussions that its proposed price is high in comparison to a competitor’s proposed price, even where price is the determinative factor for award.
Nonetheless, it is inherently within an agency’s discretion to inform an offeror during discussions that its price appears to be high in comparison to other offeror's proposed prices, should an agency choose to do so. This is true without regard to whether the offeror’s price is higher or lower than the agency’s independent government estimate (IGE).
In a recently published Comptroller General case, a (losing) bidder complained that the agency conducted unequal discussions when it learned during the debriefing stage that it had informed it that its price was too high in relation to the other bidder but did not inform the other bidder of the same.
The Comptroller General (CG) did not agree. The CG noted, as discussed above, that it was within the agency's discretion during discussion to inform an offeror that its price is high in comparison to other offeror's proposed prices. As a matter of fact, both bids were higher than the IGE. The CG found no unequal or unfair treatment in the agency's decision to inform the protestor that its bid was too high.
You can read the entire case by clicking here.
Tuesday, April 29, 2014
Don't be Bullied
Over the years, there have been many bid protests by companies that were excluded from consideration based merely on the fact that their proposals were not received by the by the time and/or at the place specified in the solicitation. Even a few minutes late has disqualified a proposal. The Comptroller General (a.k.a. GAO or Government Accountability Office) has been very consistent in holding companies responsible for complying with the specific instructions contained in solicitation instructions. If the solicitation requires that a proposal be received by 4:30 PM on such and such date, a proposal received a 4:31 PM will be disqualified. If the solicitation requires that a proposal be received at the contracting officers desk by 4:30 PM, a proposal that shows up at the main gate of a sprawling military base before 4:30 PM but does not find itself on the contracting officer's desk by 4:30 PM will be disqualified. The Government does not allow any leeway nor does the Comptroller General when the case is appealed.
In a recently published bid protest decision involving a late proposal, the Comptroller General sided with the bid protestor for a change. But, the fact situation was a little different than other cases.
In this case (see ICI Services, Inc., B-409231.2: April 23, 2014), the protestor challenged the rejection of its proposal as late, arguing that the Navy's position is based on on "overly rigid interpretation" of the solicitation instruction and a "strained reading" of the undisputed facts. The solicitation required that offeror proposals be submitted through the Navy's electronic portal. When ICI had technical difficulties submitting through that portal, the company asked for and received permission from a contract specialist to submit their proposal via email.
The Navy subsequently rejected ICI's proposal because it wasn't submitted through it electronic portal. In defense, the Navy made some puzzling arguments. The Navy stated that the contracting specialist's acceptance of ICI's proposal by email was invalid because the contract specialist had mistakenly assumed, based on ICI's submission of the proposal via email that ICI had experienced technical difficulties in trying to access or use the Navy's electronic portal system. In fact, the Navy even suggested that the contract specialist was misled by ICI since ICI could not prove that it had experienced technical difficulties.
The Comptroller General (CG) rejected the Navy's arguments stating: "As relevant and dispositive here, the record shows that the Navy installation designated for receipt of proposals was in receipt of ICI's ... proposal by the closing time for receipt of ... proposals". The record established:
The Navy's actions here are very curious and, as former auditors trained to have questioning minds, we suspect there is more to this story that was not part of the CG's decision.
In a recently published bid protest decision involving a late proposal, the Comptroller General sided with the bid protestor for a change. But, the fact situation was a little different than other cases.
In this case (see ICI Services, Inc., B-409231.2: April 23, 2014), the protestor challenged the rejection of its proposal as late, arguing that the Navy's position is based on on "overly rigid interpretation" of the solicitation instruction and a "strained reading" of the undisputed facts. The solicitation required that offeror proposals be submitted through the Navy's electronic portal. When ICI had technical difficulties submitting through that portal, the company asked for and received permission from a contract specialist to submit their proposal via email.
The Navy subsequently rejected ICI's proposal because it wasn't submitted through it electronic portal. In defense, the Navy made some puzzling arguments. The Navy stated that the contracting specialist's acceptance of ICI's proposal by email was invalid because the contract specialist had mistakenly assumed, based on ICI's submission of the proposal via email that ICI had experienced technical difficulties in trying to access or use the Navy's electronic portal system. In fact, the Navy even suggested that the contract specialist was misled by ICI since ICI could not prove that it had experienced technical difficulties.
The Comptroller General (CG) rejected the Navy's arguments stating: "As relevant and dispositive here, the record shows that the Navy installation designated for receipt of proposals was in receipt of ICI's ... proposal by the closing time for receipt of ... proposals". The record established:
- the solicitation provided an alternative means for submitting proposals when there were difficulties with the portal
- several other offerors and the Navy itself, encountered technical difficulties with the portal
- ICI requested and received permission to submit its proposal by email and dis so before the closing time for receipt of proposals.
The Navy's actions here are very curious and, as former auditors trained to have questioning minds, we suspect there is more to this story that was not part of the CG's decision.
Thursday, February 27, 2014
The Government Can't Read Between the Lines
The Government does not have the time and resources when evaluating proposals to "clean up" offerors' submissions. It is the offerors' responsibility to submit an adequately written proposal that establishes, among a host of things, its capability and the merits of its proposed approach. Additionally, the proposal must be responsive to the evaluation terms of the submission.
A recent Comptroller General decision involving a bid protest by Wolf Creek, an affiliate of a much larger company and Government contractor, Chugach, illustrates the problem when a company assumes that the Government will put "two and two" together.
Wolf Creek submitted a bid to NASA for facilities operations and maintenance support services. In evaluating past performance, NASA assigned a "neutral" rating to Wolf Creek. Although Wolf Creek provided past performance related to seven contracts that had been performed by subsidiaries of Chugach (of which Wolf Creek was also a subsidiary), it provided no past performance information for itself.
Wolf Creek argued that it provided records of significant accomplishment by its affiliates and demonstrated the meaningful roles they would plan in contract performance. Wolf Creek noted that its past performance proposal informed NASA that it would directly use the experience of personnel who have played key management roles with the Chugach subsidiaries from which past performance was drawn.
NASA countered by stating that Wolf Creek's proposal identified no meaningful role for Chugach or any of its subsidiaries in actually performing the requirements in the PWS (Performance Work Statement) - neither with management or with other resources. Wolf Creek's proposal only described general consultation and advisory roles for its affiliates. NASA did not find this to be "meaningful" involvement. In any event, the information was not provided in Wolf Creek's past performance proposal but was tucked elsewhere into
Wolf Creek's mission suitability proposal.
GAO's job in these situations is to determine whether the agency's judgment was reasonable and consistent with the stated evaluation criteria and aplicable statutes and regulations. Citing a previous decision, the GAO stated that an agency may properly consider the experience or past performance of an offeror's affiliated companies where the firm's proposal demonstrates that the resources of the affiliated company will affect the performance of the offeror. The key here is that the affiliated company must have meaningful involvement in the project.
In this case, the GAO ruled that the record supported NASA's determination that Wolf Creek's proposal failed to show that the Chugach family of companies would contribute to Wolf Creek's performance on the PWS requirements.Therefore, GAO concluded that NASA acted reasonably.
You can read the entire decision by clicking here.
A recent Comptroller General decision involving a bid protest by Wolf Creek, an affiliate of a much larger company and Government contractor, Chugach, illustrates the problem when a company assumes that the Government will put "two and two" together.
Wolf Creek submitted a bid to NASA for facilities operations and maintenance support services. In evaluating past performance, NASA assigned a "neutral" rating to Wolf Creek. Although Wolf Creek provided past performance related to seven contracts that had been performed by subsidiaries of Chugach (of which Wolf Creek was also a subsidiary), it provided no past performance information for itself.
Wolf Creek argued that it provided records of significant accomplishment by its affiliates and demonstrated the meaningful roles they would plan in contract performance. Wolf Creek noted that its past performance proposal informed NASA that it would directly use the experience of personnel who have played key management roles with the Chugach subsidiaries from which past performance was drawn.
NASA countered by stating that Wolf Creek's proposal identified no meaningful role for Chugach or any of its subsidiaries in actually performing the requirements in the PWS (Performance Work Statement) - neither with management or with other resources. Wolf Creek's proposal only described general consultation and advisory roles for its affiliates. NASA did not find this to be "meaningful" involvement. In any event, the information was not provided in Wolf Creek's past performance proposal but was tucked elsewhere into
Wolf Creek's mission suitability proposal.
GAO's job in these situations is to determine whether the agency's judgment was reasonable and consistent with the stated evaluation criteria and aplicable statutes and regulations. Citing a previous decision, the GAO stated that an agency may properly consider the experience or past performance of an offeror's affiliated companies where the firm's proposal demonstrates that the resources of the affiliated company will affect the performance of the offeror. The key here is that the affiliated company must have meaningful involvement in the project.
In this case, the GAO ruled that the record supported NASA's determination that Wolf Creek's proposal failed to show that the Chugach family of companies would contribute to Wolf Creek's performance on the PWS requirements.Therefore, GAO concluded that NASA acted reasonably.
You can read the entire decision by clicking here.
Thursday, January 30, 2014
GAO To Start Charging Filing Fees for Bid Protests
Tucked within the omnibus budget bill signed by the President earlier this month was a provision authorizing the GAO to begin charging a filing fee for companies filing bid protests. This filing fee is to pay for a new online docketing system as well as the cost of operating the new system. The new system will replace the manual process now in place for reviewing thousands of protest-related e-mails.
Although the legislation does not specify the amount of the filing fee, the GAO's managing associate general counsel for procurement law estimated that the fee will be in the neighborhood of $250 but warned that the figure might change depending upon the price of the system and the features that GAO ultimately adds to the system. A couple of years ago, the GAO, based on market research, estimated an electronic system would cost about $450 thousand per year to operate and a $250 filing fee would cover that cost. The math doesn't work however. $450 thousand divided by 2,500 cases works out to $180 per case. Perhaps the GAO is expecting that with the filing fee, the number of cases filed will drop.
This new filing fee is not likely to deter companies from filing bid protests. In the scheme of things, especially when one considers the cost of attorney fees, this fee is not significant. It might deter those companies who know their chances of prevailing are slim but choose to protest anyway on the off-chance that things will go their way.
___________________
In a related matter, the GAO announced that it has cleared its backlog of bid protests caused by last Fall's Government shutdown. That furlough, affecting the majority of GAO's staff, caused the Agency to miss its 100 day deadline for deciding protests.
Although the legislation does not specify the amount of the filing fee, the GAO's managing associate general counsel for procurement law estimated that the fee will be in the neighborhood of $250 but warned that the figure might change depending upon the price of the system and the features that GAO ultimately adds to the system. A couple of years ago, the GAO, based on market research, estimated an electronic system would cost about $450 thousand per year to operate and a $250 filing fee would cover that cost. The math doesn't work however. $450 thousand divided by 2,500 cases works out to $180 per case. Perhaps the GAO is expecting that with the filing fee, the number of cases filed will drop.
This new filing fee is not likely to deter companies from filing bid protests. In the scheme of things, especially when one considers the cost of attorney fees, this fee is not significant. It might deter those companies who know their chances of prevailing are slim but choose to protest anyway on the off-chance that things will go their way.
___________________
In a related matter, the GAO announced that it has cleared its backlog of bid protests caused by last Fall's Government shutdown. That furlough, affecting the majority of GAO's staff, caused the Agency to miss its 100 day deadline for deciding protests.
Thursday, January 23, 2014
When Bidding, Pay Close Attention to All Evaluation Factors
The U.S. Army Corps of Engineers issued a solicitation to renovate a barracks at Fort Benning. The award was to be made on a best-value basis considering the following four factors
- designer specialized experience
- contract duration and schedule
- design and construction teaming approach, and
- price
Concerning price the solicitation contained a $30 million cap for both design and construction. Offers exceeding the cap were to be ineligible for the award.
For purposes of award, factor 1 was the most important, followed by 3 and then 2. These three factors when combined, were equal in importance to price (factor 4).
Four offers were submitted. A three-member technical evaluation board evaluated the non-price evaluation factors. IAP-Leopardo Construction (IAP) put up a very impressive bid. It scored equal to or higher then the winning bidder on the three non-price evaluation factors. However, IAP was subsequently removed from further consideration because its bid exceeded the $30 million cap. IAP appealed to the Comptroller General's office.
IAP claimed that discussions with the Corps on non-price evaluation factors obligated the agency to inform IAP that its proposal was ineligible for award because its price exceeded the cost limitation. Specifically, IAP claimed the Corps engaged in inadequate discussions.
The Comptroller disagreed and denied the protest. Whatever discussions ensued, were not significant enough so as to require IAP to modify its proposal nor was the agency obligated to inform or remind IAP that its proposal exceeded the cap.
You can read the entire case here.
Tuesday, January 7, 2014
A Bid Too Low Might Mean You Don't Understand Requirements
A DoD Agency issued a solicitation for cost-reimbursable contract to renovate a building in Afghanistan. Two bids were submitted, one for $12 million and the other for $10 million. Award was to be made on a best-value basis considering, management/technical approach, past performance, technical understanding and cost realism. Vendors were also informed that the agency would evaluate vendors' understanding of requirements.
One of the bidders, B&V, submitted a bid that was $2 million under that of the higher bidder. The Government looked at that from a cost realism point of view and bumped B&V's cost by about $1.1 million representing what it believed would be B&V's "probable cost". More to the point however, is that in doing so, the Government also determined that B&V didn't really understand the requirements and knocked their rating down on technical merits.
B&V appealed the source selection on the basis that the solicitation did not advise vendors that the results of the cost realism evaluation could be used in this fashion. The GAO disagreed. The GAO ruled that the agency could use the cost realism analysis to assess the firm's understanding of the requirements - "Such a consideration ... is reasonably encompassed by the evaluation criteria that provided ... for assessing the vendors' understanding and cost realism."
GAO noted that FAR defines cost realism as a process of independently reviewing and evaluating specific elements of each offeror's cost estimate to determine
In this regard, the agency's assessment was well within the bounds of a cost-realism review.
You can read the entire case by clicking here.
One of the bidders, B&V, submitted a bid that was $2 million under that of the higher bidder. The Government looked at that from a cost realism point of view and bumped B&V's cost by about $1.1 million representing what it believed would be B&V's "probable cost". More to the point however, is that in doing so, the Government also determined that B&V didn't really understand the requirements and knocked their rating down on technical merits.
B&V appealed the source selection on the basis that the solicitation did not advise vendors that the results of the cost realism evaluation could be used in this fashion. The GAO disagreed. The GAO ruled that the agency could use the cost realism analysis to assess the firm's understanding of the requirements - "Such a consideration ... is reasonably encompassed by the evaluation criteria that provided ... for assessing the vendors' understanding and cost realism."
GAO noted that FAR defines cost realism as a process of independently reviewing and evaluating specific elements of each offeror's cost estimate to determine
- whether the estimated proposed cost elements are realistic for the work to be performed,
- reflect a clear understanding of the requirements, and
- are consistent with the unique methods of performance and materials described in the offeror's proposal.
In this regard, the agency's assessment was well within the bounds of a cost-realism review.
You can read the entire case by clicking here.
Monday, January 6, 2014
GAO Releases 2013 Report on Bid Protest Activities
The GAO issued its fiscal year 2013 annual report on bid protests last week. You can read the entire report here. Some of the highlights from that report follows:
Overall, the number of cases filed to 2,429, a two percent drop from fiscal year 2012. The GAO made no attribution as to the reason for the drop. It could be because fewer contracts were awarded or because the Government is doing better at awarding contracts. Any reduction is progress but that number is still 72 percent higher than the number of filings just six years ago.
Of the decisions issued by GAO, 17 percent sustained appeals and 83 percent denied appeals. The most prevalent reasons for sustaining protests were:
It would have been interesting to know the primary reasons for not sustaining an appeal but unfortunately, this report did not provide that information.
A significant number of protest filed with the GAO do not reach a decision on the merits because agencies voluntarily take corrective action in response to the protest rather than defend the protest on the merits. Agencies need not, and do not, report any of the myriad reasons they decide to take voluntary corrective action.
The report discusses the "effectiveness rate". The effectiveness rate is a percentage of all protests closed during the fiscal year where the protestor obtained some form of relief from the agency, either as a result of voluntary agency corrective action or GAO sustaining the protest. In 2013, the effectiveness rate was 43 percent and this percentage has held fairly constant for the past five years.
Finally, the report includes data on the use of ADR (Alternative Disputes Resolution). Of the protests filed with the GAO, the parties agreed to utilize ADR processes for 145 of those cases. The percentage of cases resolved in that process totaled 86 percent. The GAO report did not provide any details as to how those cases were resolved but its likely that both parties got something.
Overall, the number of cases filed to 2,429, a two percent drop from fiscal year 2012. The GAO made no attribution as to the reason for the drop. It could be because fewer contracts were awarded or because the Government is doing better at awarding contracts. Any reduction is progress but that number is still 72 percent higher than the number of filings just six years ago.
Of the decisions issued by GAO, 17 percent sustained appeals and 83 percent denied appeals. The most prevalent reasons for sustaining protests were:
- failure to follow the solicitation evaluation criteria
- inadequate documentation of the record
- unequal treatment of offerors
- unreasonable price or cost evaluation
It would have been interesting to know the primary reasons for not sustaining an appeal but unfortunately, this report did not provide that information.
A significant number of protest filed with the GAO do not reach a decision on the merits because agencies voluntarily take corrective action in response to the protest rather than defend the protest on the merits. Agencies need not, and do not, report any of the myriad reasons they decide to take voluntary corrective action.
The report discusses the "effectiveness rate". The effectiveness rate is a percentage of all protests closed during the fiscal year where the protestor obtained some form of relief from the agency, either as a result of voluntary agency corrective action or GAO sustaining the protest. In 2013, the effectiveness rate was 43 percent and this percentage has held fairly constant for the past five years.
Finally, the report includes data on the use of ADR (Alternative Disputes Resolution). Of the protests filed with the GAO, the parties agreed to utilize ADR processes for 145 of those cases. The percentage of cases resolved in that process totaled 86 percent. The GAO report did not provide any details as to how those cases were resolved but its likely that both parties got something.
Tuesday, October 8, 2013
There's a Difference Between "Lowest-Priced Technically Acceptable" and "Best Value"
When bidding on solicitation that is to be awarded based on "best value", be aware that there will be a number of subjective elements that go into the award decision. And, those subjective elements will be very difficult to challenge should an award be protested. A recent GAO (Comptroller General) illustrates this point.
It was plain based on the award criteria, that the award would be made on a best value basis. As a result, the solicitation afforded the Government the discretion to make trade offs between price and non-price factors when making its award decision.
The protestor (AWD in this case) argued that its proposal represented both the overall best value because its price was lower, and that it also submitted the lowest-priced, technically acceptable offer. The protestor argued that the Agency was not justified in paying a five percent premium, which it asserted was simply a price for convenience so the agency could keep on with the incumbent contractor.
The agency countered that it was justified in awarding to a company with a technically superior proposal. The Comptroller General agreed with the agency. "When a protester challenges an agency's award decision, we will review that decision solely to determine if it was reasonable and consistent with the solicitation's evaluation scheme, procurement statutes, and regulations. Proposals with the same adjectival ratings are not necessarily of equal quality, and agencies may properly consider specific advantages that make one proposal of higher quality than another. In conducting such an analysis, agencies may reasonably consider the underlying bases for ratings and assess advantages and disadvantages associated with the content of competing proposals.
In this case, the agency reasonably considered the underlying merits of each proposal and identified qualitative differences between the two, even though both proposals received the same overall adjectival ratings for technical capability and past performance. In weighing the differences, the contracting officer reasonably determined that the successful bidders proposal offered technical strengths not found in the protestor's proposal and the protestor's proposal contained evaluated weaknesses not present in the successful bidders proposal.
You can read the entire case here.
It was plain based on the award criteria, that the award would be made on a best value basis. As a result, the solicitation afforded the Government the discretion to make trade offs between price and non-price factors when making its award decision.
The protestor (AWD in this case) argued that its proposal represented both the overall best value because its price was lower, and that it also submitted the lowest-priced, technically acceptable offer. The protestor argued that the Agency was not justified in paying a five percent premium, which it asserted was simply a price for convenience so the agency could keep on with the incumbent contractor.
The agency countered that it was justified in awarding to a company with a technically superior proposal. The Comptroller General agreed with the agency. "When a protester challenges an agency's award decision, we will review that decision solely to determine if it was reasonable and consistent with the solicitation's evaluation scheme, procurement statutes, and regulations. Proposals with the same adjectival ratings are not necessarily of equal quality, and agencies may properly consider specific advantages that make one proposal of higher quality than another. In conducting such an analysis, agencies may reasonably consider the underlying bases for ratings and assess advantages and disadvantages associated with the content of competing proposals.
In this case, the agency reasonably considered the underlying merits of each proposal and identified qualitative differences between the two, even though both proposals received the same overall adjectival ratings for technical capability and past performance. In weighing the differences, the contracting officer reasonably determined that the successful bidders proposal offered technical strengths not found in the protestor's proposal and the protestor's proposal contained evaluated weaknesses not present in the successful bidders proposal.
You can read the entire case here.
Monday, February 4, 2013
The Importance of Drafting Well-Written Proposals
A recent bid protest decision by the Comptroller General illustrates the importance of ensuring your proposal narrative is complete and accurate and complies with solicitation requirements. Usually offerors get only one chance to make the BQ (best qualified) list and that is why first impressions are extremely important.
In the latest illustration of this fact, LC Engineers' (LC) bid for cable assemblies was thrown out of competition because it was rated technically unacceptable. LC protested the Navy's action stating, among other things, that the Navy didn't understand or make an effort to understand its proposal. The Comptroller General disagreed and did not sustain the protest.
With respect to the technical approach, the solicitation instructed offers to demonstrate a thorough understanding of the SOW (Statement of Work) and applicable drawings and to describe their methodology, techniques and process for manufacturing the cable assemblies. Offerors were informed that the agency would evaluate the extent to which the offeror's proposal demonstrated the firm's understanding of, approach to, and ability to meet the solicitation requirements.
The Navy gave LC's submission an unacceptable technical rating based on its judgment that the proposal contained two deficiencies and a number of weaknesses. Specifically, the Navy found that LC failed to demonstrate an understanding of and adequate approach to performing the requirements. LC's proposal contained errors and missing performance steps and testing requirements. Additionally, LC did not appear to have sufficient personnel to perform the contract and that insufficient hours were included in some requirements.
LC protested, maintaining that its proposal provided the Navy with sufficient data and detail to demonstrate that it was technically capable of performing the contract. The Comptroller General, in such protests, does not re-evaluate proposals. It limits itself to examining the record to determine whether the Navy's judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations.
Here, the Comptroller General found that the record showed that the Navy reasonably evaluated LC's proposal as unacceptable. LC failed to demonstrate an acceptable technical approach in its proposal. It failed to adequately describe its manufacturing process and the narrative contained errors and missing performance steps. The Comptroller General agreed with the Navy that LC failed to demonstrate the viability and effectiveness of their techniques.
You can read the entire decision here.
In the latest illustration of this fact, LC Engineers' (LC) bid for cable assemblies was thrown out of competition because it was rated technically unacceptable. LC protested the Navy's action stating, among other things, that the Navy didn't understand or make an effort to understand its proposal. The Comptroller General disagreed and did not sustain the protest.
With respect to the technical approach, the solicitation instructed offers to demonstrate a thorough understanding of the SOW (Statement of Work) and applicable drawings and to describe their methodology, techniques and process for manufacturing the cable assemblies. Offerors were informed that the agency would evaluate the extent to which the offeror's proposal demonstrated the firm's understanding of, approach to, and ability to meet the solicitation requirements.
The Navy gave LC's submission an unacceptable technical rating based on its judgment that the proposal contained two deficiencies and a number of weaknesses. Specifically, the Navy found that LC failed to demonstrate an understanding of and adequate approach to performing the requirements. LC's proposal contained errors and missing performance steps and testing requirements. Additionally, LC did not appear to have sufficient personnel to perform the contract and that insufficient hours were included in some requirements.
LC protested, maintaining that its proposal provided the Navy with sufficient data and detail to demonstrate that it was technically capable of performing the contract. The Comptroller General, in such protests, does not re-evaluate proposals. It limits itself to examining the record to determine whether the Navy's judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations.
Here, the Comptroller General found that the record showed that the Navy reasonably evaluated LC's proposal as unacceptable. LC failed to demonstrate an acceptable technical approach in its proposal. It failed to adequately describe its manufacturing process and the narrative contained errors and missing performance steps. The Comptroller General agreed with the Navy that LC failed to demonstrate the viability and effectiveness of their techniques.
You can read the entire decision here.
Monday, January 7, 2013
Evaluation Factors - When Less Important Factors Trump More Important Factors
GAO recently issued a bid protest decision that illustrates one of the vagaries in selecting a winning bid. In a case where technical evaluation factors, when combined, were more important than price, GSA awarded a contract to a firm who's overall technical score was inferior to the company that filed the protest (in fact, it was rated "marginal") but who's price was 24 percent lower than the unsuccessful bidder (you can read the entire decision here). The GAO denied the protest on the basis that the protester's technically superior proposal was not worth its much higher price.
The contract itself was an 8(a) set-aside for operations and maintenance of a courthouse. The solicitation advised that the award would be made on a "best value" basis, considering price and three technical evaluation factors; prior experience, key personnel, and past performance. Offerors were informed that the three technical factors, when combined, were more important than price.
The bid protester complained that GSA placed too much emphasis on price in its selection decision. GAO ruled that source selection officials in negotiated procurements have broad discretion in determining the manner and extent to which they will make use of the technical and price evaluation results; price/technical tradeoffs may be made, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the solicitation's evaluation criteria.
Even where technical merit is significantly more important than price, an agency may properly select a lower-priced, lower-rated proposal if it reasonably decides that the price premium involved in selecting a high-rated, higher-priced proposal is not justified.
The contract itself was an 8(a) set-aside for operations and maintenance of a courthouse. The solicitation advised that the award would be made on a "best value" basis, considering price and three technical evaluation factors; prior experience, key personnel, and past performance. Offerors were informed that the three technical factors, when combined, were more important than price.
The bid protester complained that GSA placed too much emphasis on price in its selection decision. GAO ruled that source selection officials in negotiated procurements have broad discretion in determining the manner and extent to which they will make use of the technical and price evaluation results; price/technical tradeoffs may be made, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the solicitation's evaluation criteria.
Even where technical merit is significantly more important than price, an agency may properly select a lower-priced, lower-rated proposal if it reasonably decides that the price premium involved in selecting a high-rated, higher-priced proposal is not justified.
Tuesday, November 27, 2012
GAO Bid Protests
Filing a bid protest with the Comptroller General's Office (GAO) is very easy. There are no fees. There is no prescribed format, you do not need an attorney and you can mail, email, fax, or hand deliver your protest. Within 100 days, but usually much sooner, a decision is issued.
The GAO recently floated the idea of charging a fee for filing a protest. BusinessWeek called it a "Put Up or Shut Up" Fee. A flat fee of $240 would generate about $600 thousand and would fund an online docket system to help the Agency deal with a rising caseload.
In fiscal year 2012, there were 2,475 protests filed. These filings generated about 16 thousand e-mail messages that are manually filtered by GAO staff. An online docket system would improve and streamline how protests are handled and reduce the risk of mistakes and delays.
The GAO does not believe that a fee would significantly reduce the volume of protests filed but speculated that there are those in Congress who might oppose it because of the impact on small businesses.
The GAO recently floated the idea of charging a fee for filing a protest. BusinessWeek called it a "Put Up or Shut Up" Fee. A flat fee of $240 would generate about $600 thousand and would fund an online docket system to help the Agency deal with a rising caseload.
In fiscal year 2012, there were 2,475 protests filed. These filings generated about 16 thousand e-mail messages that are manually filtered by GAO staff. An online docket system would improve and streamline how protests are handled and reduce the risk of mistakes and delays.
The GAO does not believe that a fee would significantly reduce the volume of protests filed but speculated that there are those in Congress who might oppose it because of the impact on small businesses.
Subscribe to:
Posts (Atom)