Contractors that want to improve their proposal drafting skills (and win more contract awards) should always keep an eye on the news and learn from others’ mistakes.  Understanding an agency’s award rationale can provide a competitive advantage and keep you well-positioned to receive the next contract.

And, sometimes, simply following instructions and staying within the lines can make the difference between winning and losing.

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Take, for example, a recent GAO decision discussing the merits of an agency’s technical evaluation.  The protest argued that the agency unreasonably overlooked technical details included in the “past performance” and “personal experience” sections of the contractor’s proposal.

The problem with this argument is that the details in question should have been included in the “technical approach” section of the proposal — as indicated in the RFP.  According to the GAO, there is “no merit in the [argument] that the agency should have looked to other proposal sections for information regarding the firm’s technical approach.”

The takeaway here is an easy one – read the RFP instructions carefully and follow them closely.  If technical data or other information is requested by one section of an RFP, provide that specific data in the corresponding section of your proposal.  Don’t assume that – just because you’ve already included the information elsewhere – the agency will take the time and effort to track it down (even if it appeared just a few pages or even paragraphs earlier in the proposal).

The general rule is that you want to make life as easy as possible for the person evaluating your proposal.  Make it a routine best practice to check each proposal for the key elements required by the RFP before hitting send.

As we previously broke down in detail here, an Organization Conflict of Interest (OCI) exists when work performed on a federal contract leads to an unfair competitive advantage or impaired objectivity.  Federal contractors must establish appropriate safeguards against OCI because a finding of OCI can lead to losing a contract or, worse, suspension or debarment from future federal work.

One of the more common issues that leads to OCI is unequal access to information.  Unequal access to information can arise when a contractor has access to non-public information on a federal contract that later turns out to provide an unfair competitive advantage in future procurements.

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But, what if you current hold a federal contract (or multiple federal contracts) where your business and employees routinely access such confidential data?   Is it realistic (or even possible) to form a firewall between your business and the nuts and bolts of your federal work?

In a recent decision, the GAO considered a contractor’s access to agency information obtained during its work as a subcontractor at the agency’s program office.  According to GAO, a contractor may possess unique information, advantages, and capabilities due to its prior experience under a government contract without qualifying as an OCI.  The key is not allowing that incumbent contractor advantage to spill over into preferential treatment by the agency.

The responsibility to avoid an OCI based on preferential treatment falls on both the agency and the contractor.  For example, the GAO notes that an agency can neutralize the appearance of unequal access by releasing information to all procurement offerors.  For the contractor, internal safeguards should be in place to identify the possibility of OCI and – if not appropriately mitigated by the agency – disclosed in advance.

Constant vigilance is required to stay out in front of OCI issues and avoid the potentially devastating consequences.

Late is late. All government contractors know the rule.  Submissions must be received by the Agency at the time indicated, or else risk being excluded.  Still, as we start the New Year, it bears repeating because of the new and exotic ways we still see the rule popping up and harming contractors.

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Today – we look at the perils of Agency spam filters.

Advanced Decisions Vectors (ADV) was an offeror on a Department of Homeland Security 8(a) set-aside contract for consulting services. The RFP called for proposals to be submitted by 10 a.m. Eastern on September 8.  ADV claimed that sent its proposal by email before the deadline (with 5 minutes to spare!), but the Agency disagreed – it did not receive the proposal – and disqualified ADV.

The catch is that ADV’s proposal (which was, indeed, submitted on time) did not pass through the Agency’s firewall, onto the server, and into the email inbox. Left in limbo, the email was automatically deleted as “potentially malicious” by the Agency, leaving no way to determine whether the proposal within was complete.

ADV filed a protest, claiming that it was improperly excluded on these grounds. It did send the email on time, after all.  The GAO disagreed.  The key was that the RFP expressly advised all offeros that they would receive a reply emailing confirming the receipt of the proposals.  ADV did not receive the confirmation, and did not promptly follow up to verify.

GAO dismissals on timeliness grounds are nothing new. In the past, we’ve looked at cases where the GAO examined the time that a protest was filed down to the exact second.

So, what can be done about it? ADV’s predicament offers two lessons:

  1. If possible, always file a day early. It is easier said than done, but consistently setting your internal alarm clock for filings a full day early can become a beneficial routine.  It is extraordinarily difficult to be five minutes late when you are a full day early.  Also, if there is an issue with an email attachment or other electronic glitch, you will have left yourself enough time to make course corrections on the fly.
  2. Send and verify.  A simple confirmation email would have saved ADV from its fate.  If the agency does not offer an automatic receipt confirmation, it is worth the time and effort to follow up with the agency directly and confirm receipt.

On December 10, 2015, the U.S. Government Accountability Office (GAO) released the GAO Bid Protest Annual Report to Congress for Fiscal Year 2015.  Every fiscal year, the GAO releases data regarding bid protest filings as compared with prior years.  For FY 2015, the report shows an increase in both the number and effectiveness (defined as protests sustained or resolved via corrective action) of protests filed at the GAO.

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In FY 2015, the number of cases filed with the GAO, 2,639, increased 3% from the prior year.  GAO also closed significantly more cases this year than in the prior year: 2,647 as compared to FY 2014’s 2,458.  Of those 2,647 cases, however, only 587 resulted in formal decisions of which only 68 sustained the underlying protest (12% sustain rate).  The most commonly sustained grounds for protest in FY 2015 were:

(1) unreasonable cost or price evaluation;

(2) unreasonable past performance evaluation;

(3) failure to follow evaluation criteria;

(4) inadequate documentation of the record; and

(5) unreasonable technical evaluation.

Although the 12% sustain rate is low, that figure is somewhat misleading because of the number of cases in which the agency takes voluntary corrective action.  The effective rate of cases, which combines both cases that were sustained or resulted in agency corrective action, was 45% in FY 2015.  This represents a 2% increase from the prior year and is the highest effective rate in the past 5 years.

Bid protests come with many moving parts and issues to consider.  From documenting the government’s error, to scheduling a debriefing, to figuring out how and when to file — time can start to move pretty quickly.

While all of those issues are undoubtedly important – we here at Fox find that it is best to always start by taking a step back and looking at the big picture.  And what is the most important question for any government contractor considering a bid protest?  How to win and get the contract!

The goal of any bid protest should be on correcting the government’s error and making sure that your business gets the contract that it deserves.  There are several paths available, but they are not all created equal – and they certainly are not “one size fits all.”  The different protest venues (the primary three being: Agency Level protests, GAO protests, and Court of Federal Claims protests) each offer different pros and cons – and your choice of venue can have a very real impact on your businesses’s protest experience.

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Today, we are highlighting winning strategies for GAO bid protests.  The GAO exists exclusively as a venue for resolving government procurement errors.  Unlike a traditional court setting, the GAO is built for speed and efficiency – the goal in each GAO protest is to reach a final resolution within 100 days from the date of filing.

The GAO model for resolving protests certainly has its advantages – most notably, your case can be resolved quickly and for a relatively low cost.  However, that speed and efficiency comes at a price.  There is very little in the way of due process or discovery before the GAO – meaning that protests are typically decided based on the face of the protest itself.

With these considerations in mind, we recommend GAO bid protests as the ideal forum resolving protests involving open and obvious government errors – in other words, procurement mistakes that can be easily understood and corrected.  Under those circumstances, the GAO offers the best and quickest avenue to filing a winning protest and getting the contract award for your company.

On the other hand, if your protest involves complex factual or legal issues, the GAO probably is not right for you.  Typically, there just is not enough time for the case to fully develop – and the GAO will tend to lean on the government’s discretion when it views the case as a close call.  For those kinds of bid protests, we recommend filing a complaint in the Court of Federal Claims, which operates more like a traditional court and allows the time to fully flesh out a complicated case.

We invite you to take a look at our Guide to Winning GAO Bid Protests, which offers a complete rundown on the types of cases best suited for the GAO.

For Government contractors, it can be a frustrating experience to have your hard-earned contract award sidetracked by a protest – particularly if that protest includes a mandatory performance stay.  More frustrating still is when the agency pulls the award altogether by deciding to take corrective action and re-open the competition.

This is no time to be passive!  If your contract award is under attack, contractors should get involved and intervene in the protest.  This advice takes on particular importance when corrective action is proposed – the window to challenge a renewed competition closes on the date when revised proposals are due.

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Government contractor NVE Inc. learned this lesson the hard way on a recent $70 million janitorial contract for the Navy.  After its initial award was the subject of multiple rounds of protests, the agency made the decision to reopen the competition by engaging in discussions with all offerors.

Rather than challenge the agency’s decision to take corrective action, NVE participated in the re-opened competition and submitted a revised proposal.  After the Navy awarded the contract to a different, lower-priced contractor, NVE tried to turn back the clock and protest the corrective action.  The Court of Federal Claims refused to allow it.

Writing for the Court, Judge Thomas Wheeler held that “an offeror cannot fully participate in a second round of proposal submissions and then later challenge the agency’s corrective action decision.  Instead, the law requires NVE to submit its challenges to an agency’s corrective action before the due date for proposal resubmission.”

Challenges to your contract award – including proposed corrective action – must monitored vigorously and confronted promptly.  Don’t give up that award without a fight!

 

In the world of GAO protests, as in life, its generally best to go with the rule – not the exception.

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For protest timing, the general rule of thumb is to file within 10 days of when you knew (or should have known) of the basis for the protest.  Notably, there is an exception to this rule where a contractor is entitled to a “requested and required” debriefing.  Under those circumstances, GAO’s rules extend the filing date to 10 days following the first date offered for the debriefing.

Today’s lesson:  Be wary of allowing the debriefing exception to swallow the rule.  Contractors must be aware that not all debriefings extend the filing deadline – only the requested and required variety under the FAR.

Teaching this lesson the hard way, the GAO recently dismissed a protest over a State Department drapery services contract as untimely.  Specifically, the GAO held that the protester knew of its protest grounds well before its debriefing with the agency.

Why – in this instance – did the debriefing not save the protester?  It was not required under the commercial item acquisition rules that governed the procurement.  By waiting until after the debriefing to file, the protester blew past the deadline that began to run at the time it became aware of the alleged procurement error giving rise to the protest.

Government contractors should treat each potential protest as unique – making sure to understand the specific timing issues in play long before a deadline approaches.  Relying on inapplicable exceptions will only lead to heartache (in the form of a dismissed protest).

Picture this:  After losing out on a lucrative Federal contract, you realize that an error within the solicitation led to the improper scoring of your company’s technical proposal.  In other words, you deserve the contract, but an error by the agency means that someone else got the award.  Aware of your rights and the tight protest timeline, you quickly prepare and file a timely bid protest – only to just as quickly have it dismissed as untimely.

The reason?  There are certain types of procurement errors that need to be identified and protested even before proposals are due.

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That is exactly what happened to a Federal contractor (Visual Connections LLC) that protested a $20 + million Health and Human Services SDVOSB task order for IT services.  After the agency awarded the task order to another contractor, Visual Connections protested a solicitation irregularity, arguing that the relative weight of price and non-price factors was not properly disclosed in the RFP.

Although the Court of Federal Claims did not disagree with the substance of the protest, it still ordered a dismissal.  Specifically, the Court found that Visual Connections should have raised the issue prior to bids becoming due.  Failing to do so meant that later protest rights were waived.

In protests involving solicitation defects, the crux of the matter often comes down to whether the defect is latent or patent.  In other words, is the flaw something that only becomes apparent after the agency reveals its evaluation results (latent)?  Or something that should be obvious from the face of the RFP (patent)?  If you are dealing with a patent defect (as was the case with Visual Connections), then a pre-bid protest is the only recourse.

As with most Federal bid protest related issues, the key takeaway is to know your rights and act quickly.  If you notice a defect in the solicitation, raise it up the chain with the CO and – if all else fails – prepare and file your protest before proposals are due.  The “wait and see” method simply will not cut it.

One happy byproduct of pursuing a winning Government Accountability Office (GAO) bid protest (secondary to obtaining the contract award), is that the GAO can recommend that the agency reimburse your costs of filing and pursuing the protest – including attorneys’ fees.  For small businesses, the GAO recently confirmed the added bonus of not capping attorneys’ fees at any set amount or rate.

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In GAO case B-408124, 6K Systems Inc.(6K) – a small business – maintained successive protests concerning an Office of Personnel Management (OPM) solicitation seeking offerors to provide a knowledge management portal, government online learning center, and e-Training program for the agency’s Human Resources Solutions enterprise.

Following the successful conclusion of the protests, 6K submitted a claim for costs totaling $27,112.50 and comprised of 120.5 hours of attorney work at the billing rate of $225 per hour.   OPM balked at the demand – countering with an offer to reimburse 6K for only 82.05 attorney hours at a rate of $150 per hour.

The GAO agreed with 6K and granted nearly the entire claim (excluding only minimal attorney time for costs incurred prior to filing the protest).  OPM’s objections to both the amount of time and hourly rate were rejected:

• With respect to the number of hours, GAO concluded that the agency provided no basis to support the notion that 6K incurred more attorney hours than a “prudent person” would typically incur to file and maintain the protests;

• For the attorneys’ hourly rate, the GAO noted that small businesses like 6K are specifically excluded from the $150/hour limit imposed on large businesses.

Every dollar counts for small businesses, so the costs and fees associated with filing and maintaining a bid protest should not serve as a barrier for pursuing a protest to correct a procurement error by the government

 

New and exciting small business contracting opportunities are out there – if you know where to look.

Under Federal Acquisition Subpart 19.5 (Set-Asides for Small Businesses), government purchases with an anticipated dollar value exceeding $3,000 (but not over $150,000) are automatically reserved for performance by qualifying small businesses.  For procurements over $150,000, the contract must be set-aside for exclusive small business performance when there is a reasonable expectation that offers will be received from at least two reasonable small business concerns at a fair market price.

Among these regulations is a little known stipulation that the set-aside requirements apply “only in the United States or its outlying areas.”  The extent of this limitation was recently put to the test in connection with a procurement involving both foreign and domestic chartering services that was set-aside for small business performance by the Department of the Navy, Military Sealift Command (MSC).

Maersk Line, Limited, a large business, filed a protest with the Government Accountability Office (GAO) arguing that MSC should not have conducted the procurement as a small business set-aside because the contract includes provisions requiring performance outside of the United States.  The GAO disagreed, finding that the FAR does not define precisely what percentage of the contract must be performed “in the United States” in order to invoke the FAR’s small business set-aside requirements.  Accordingly, there was no reason to conclude that MSC erred in administering the procurement.

As the government strives to meet its small business set-aside benchmarks, expect the type and variety of small business contracting opportunities to continue to grow and diversify.  Is your small business doing all it can to expand its footprint?