Ten bid protest trends and tips

It is no secret that federal procurement spending has dropped considerably in recent years. With less dollars being spent and fewer procurements, government contracts are increasingly turning to the bid protest process for a second chance to compete for, and hopefully win, new contracts, and preserve their incumbent contracts.

GAO-GovernmentAccountabilityOffice-SealThe statistics bear this out. Bid protest activity at the U.S. Government Accountability Office (GAO) has steadily increased year-over-year, with a record 2,561 protests filed in fiscal year 2014 alone. But more filings has not meant more sustained protests; the GAO sustain rate in 2014 fell to its lowest recent level of only 13 percent (though this does not account for voluntary agency corrective actions, which have remained steady).

These statistics, and the new federal procurement reality, reinforce the need for contractors to think carefully about effective protest strategies and emerging issues to maximize their chances to successfully protest procurements (or defend contract awards).

See ten key trends and tips to keep in mind: http://www.mondaq.com/article.asp?articleid=421438

GAO: ‘Mechanical’ cost realism evaluation was improper

An agency’s cost realism evaluation was improper because the agency “mechanically” compared an offeror’s proposed staffing to an undisclosed government estimate.

In a recent bid protest decision, the GAO held that it was improper for the agency to apply its own estimates for labor hours and costs without considering the protester’s unique technical approach.

The GAO’s decision in CFS-KBR Marianas Support Services, LLC; Fluor Federal Solutions LLC, B-410586 et al. (Jan. 2, 2015) involved a Navy procurement for base operations support services.  The solicitation contemplated the award of a cost-reimbursement contract, which was to be awarded on a “best value” basis.  Among the evaluation factors, the Navy was to consider offerors’ proposed staffing and resources.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/gao-mechanical-cost-realism-evaluation-was-improper/

VA demands review of company’s small business status, days after awarding it a contract

Days after the Department of Veterans Affairs awarded a contract to manage its verification program for veteran-owned small businesses, it’s questioning the winner’s own status as a small business.

The VA filed a size protest with the Small Business Administration against Loch Harbour Group Inc. of Alexandria, less than a week after awarding the company a $39.9 million contract to manage the VA’s Center for Veterans Enterprise, said Lee Doughterty, a principal at the Vienna office of law firm Offit Kurman who represents Loch Harbour.

That contract, which was set aside for veteran-owned small businesses and involves processing contractor applications to be verified as veteran-owned, was originally awarded to Monterey Consultants Inc. of Dayton, Ohio. The VA terminated the Monterey award in November, opting to take corrective action in response to a protest filed by Loch Harbour in the U.S. Court of Federal Claims.

“It is a terrible tactical move,” said Dougherty, who added that Loch Harbour was deemed qualified to compete for the work during the contract evaluation process. “The retaliation taken by the program and contracting officer is absolutely inappropriate and a gross violation.”

Keep reading this article at: http://www.bizjournals.com/washington/blog/fedbiz_daily/2014/12/va-demands-review-of-companys-small-business.html?page=all

Protester’s scores could be lower than in original evaluation

When a procuring agency re-evaluates proposals in response to a protest, the agency need not stick with the results of the original evaluation.

As demonstrated in a recent GAO bid protest decision, when an agency re-evaluates proposals, it is expected that the re-evaluation could result in different findings and conclusions–including new conclusions that are not favorable to the protester.

The GAO’s decision in All Points Logistics, Inc., B-407273.53 (June 10, 2014) involved the Department of Homeland Security’s solicitation for Enterprise Gateway for Leading-Edge Solutions II (EAGLE II).  The EAGLE II solicitation offered different tracks in which offerors competed for awards under three functional categories.

Keep reading this article at: http://smallgovcon.com/gaobidprotests/proposal-re-evaluation-protesters-scores-could-be-lower/

GAO releases report on bid protests in FY13

The Government Accountability Office (GAO) recently released its annual report to Congress on bid protests filed and acted upon during fiscal year 2013 (FY13).

The report reveals that during FY13, the GAO received 2,429 cases, including 2,298 protests, 56 cost claims, and 75 requests for reconsideration.   A total of 2,538 cases were closed during the fiscal year.

Notably, the most prevalent reasons for sustaining protests were: 1) failure on the part of federal agencies to follow their stated bid or proposal evaluation criteria; 2) inadequate documentation of the record by agencies; 3) unequal treatment of offerors; and 4) unreasonable price or cost evaluation.

Further details can be seen on the following chart.

FY 13 Bid Protest Stats - GAO

FY 13 Bid Protest Stats - GAO - notes to chart

A copy of the complete GAO report can be accessed here: GAO Bid Protest Annual Report to Congress FY 13 – Jan. 2 2014



VA Awards health IT contract at triple the price of lower bids

The Veterans Affairs Department awarded ASM Research a $162.5 million contract to improve the user experience for VA’s electronic health record system, a price more than triple two competitive bids, Nextgov has learned. The Sept. 30 contract award is for improvements to the Veterans Health Information Systems and Technology Architecture, known as VistA.

HP Enterprise Services and Triple-I of Overland Park, Kansas, each submitted bids under $50 million on the contract won by ASM, two independent sources told Nextgov. The companies competed for the VistA work through task orders issued under a $12 billion IT umbrella contract known as Transformation Twenty-One Total Technology, or T4. The T4 contract, awarded to 16 companies in June 2011, is an indefinite delivery, indefinite quantity contract that gives the department considerable flexibility in awarding technology deals.

The VistA enhancement contract calls for a new graphical user interface that will display a wide range of patient information. It also calls for other tasks one source described as so general it would allow the department to use ASM for a wide range of work without further competition.

On Oct. 28, a month after VA awarded the contract to ASM, David Waltman, a senior program officer within the Veterans Health Administration’s Office of Information and Analytics who had done preliminary work on that contract, sent an email to colleagues at VA and the Defense Department telling them he would leave government service Nov. 2 to take a job as chief strategy officer for ASM.

Keep reading this article at: http://www.nextgov.com/health/2013/11/va-awards-asm-research-health-it-contract-triple-price-competitors-bids/73223/

Is the government starting to hate LPTA too?

I was surprised (and relieved) to learn that government proposal evaluators are pushing back on the use of lowest price, technically acceptable (LPTA) evaluation criteria—and for good reason. They are now learning that this evaluation criteria can limit their ability to exercise reasonable judgment in the evaluation process and may result in contracts awarded to companies that are clearly inferior and have less qualified offerings compared to others in the competition.

Here are two instances where the use of LPTA evaluation criteria backfired on the government decision-makers:

  1. Superior value versus price
  2. Past performance and performance risk

Keep reading this article at: http://washingtontechnology.com/Articles/2013/06/07/Insights-Lohfeld-LPTA-shortcomings.aspx?Page=1 

How to avoid a contract protest

Are protests destined to become just one more milestone in the federal procurement process? Recent evidence might suggest so. Notably, the protested award to Lockheed Martin for the U.S. Antarctic Research program in the South Pole and the Hawker Beechcraft protest of the award of the new light attack aircraft trainer are recent examples.

In addition, market experts predict that as defense budgets decline, companies fighting over fewer dollars will launch more protests when losing procurements that can lock them out of programs or agencies for a decade.

If protests are to become the norm for competing in major programs, then it’s to everyone’s advantage to find ways to reduce the number of protests and awards that are overturned. When companies file protests, everyone loses. The procuring agency loses because procurement time lines get stretched out. Bidders lose because the cost of participating in federal procurements goes up. Even the apparent winner incurs additional costs to defend the award, and the losing bidders incur additional costs to file the protest.

Capture and proposal managers can take some precautions that may help minimize the likelihood that their procurement will be protested or award overturned. To learn first-hand what you can do, I reached out to three attorneys with practices in federal procurement protests to see what they suggest. Here’s what I learned.

According to  Dave Nadler, a partner at Dickstein Shapiro LLP in Washington D.C., protests can begin when the government releases a  defective request for proposals. “Review the RFP with an eye to unclear, ambiguous, unduly restrictive text, especially text specifying a brand name or  written around someone else’s product. It is better to seek  clarification and use the Q&A process to make sure the solicitation is clear and that your interpretation is reasonable than to file a protest,” he said.

If you are unclear about the interpretation of proposal instructions (typically Section L) or the evaluation criteria (typically Section M), then the evaluation team will probably be confused too. If the RFP is deficient, and you choose to protest the RFP, then you must file your protest before your proposal is submitted, otherwise the Government Accountability Office will rule that your protest is untimely and will summarily dismiss it, Nadler said.

As a proposal writer, there is nothing more frustrating than working with a poorly written RFP. If you have one of these, let me know and I’ll present your argument to the agency pro bono for the good of our industry. We will all benefit from well-written RFPs.

As you write your proposal, there are other pitfalls to avoid. Shlomo Katz, counsel at Brown Rudnick LLP, reinforces that you must follow the requirement of the RFP precisely. “If the RFP requires certain documentation (e.g., resumes) or certain credentials (e.g., a Ph.D.), and you don’t provide what was required, and the agency selects you anyway, that may be grounds for a successful protest. Similarly, if you make technical claims back them up with data, especially if you are claiming your widget is twice as good, twice as fast, twice as durable, etc. Ditto if you claim you can deliver in half the time of your competitors. Explain your technical approach in sufficient detail to justify that you are the best (if that’s what the evaluation criteria call for),” said Katz.

You can also have protests related to your proposed costs. According to Katz, “If your cost/price is significantly higher than your competition, make sure you explain the value proposition, and if your cost/price is significantly lower than your competition, make sure you explain why it is realistic. I had a protest where the agency selected the offeror whose cost was way below the government estimate, and GAO threw out the award because the proposal did not prove its own cost realism.”

There are also some legal gotchas, according to Carol L. O’Riordan, partner in the O’Riordan Bethel Law Firm, LLP. “Ensure that everyone on the team has current and required licensing, credentials, and past performance in place because it is more than embarrassing if a subcontractor’s employee is put forth as key personnel, but his required license is outdated or lapsed,” O’Riordan said. “If the procurement uses GSA schedule vehicles, make sure the team’s vehicles include the required services. Watch out for organizational conflicts of interest. Starting with all known information regarding the procurement and evaluation, make sure you understand to what extent everyone on the proposed team checked and confirmed that each has no affiliation or involvement with those identified on the other side or other procurements where conflicts may exist.”

As a final thought, some protests can be brought to the procuring agency for review, rather than going directly to GAO. This may be more advantageous, but be mindful that there are certainly timeliness rules that apply to whichever protest venue you choose.

About the Author: Bob Lohfeld is the chief executive officer of the Lohfeld Consulting Group. Published by Washington Technology, Mar. 22, 2012 at http://washingtontechnology.com/articles/2012/03/12/insights-lohfeld.aspx?s=wtdaily_230312.

5 ways to shape how agencies pick winning proposals

Agencies have broad discretion in establishing evaluation criteria for their procurements, subject to some limitations set by federal acquisition regulations. Those criteria are often shaped by arguments that competing contractors make during the procurement’s capture phase. Here are some ideas to consider in shaping the evaluation criteria in your next must-win procurement.

Factors and subfactors

Every procurement must be evaluated based on evaluation factors and subfactors established before the release of the request for proposals. The government tailors those factors and subfactors to represent areas of importance for source selection and provide a basis for meaningful comparison among competing proposals. Agencies have broad discretion in establishing evaluation factors and subfactors and determining the relative importance of those factors. As a capture manager, you want to discuss those factors and their relative importance and offer guidance to the agency, if requested.

Technical, management and other evaluation factors

Noncost evaluation factors must be established to assess the quality of proposed solutions, services or products. Those factors can include technical approach, management capability, personnel qualifications, prior experience or small-business participation, among others. Some agencies prescribe a standard set of evaluation factors for their procurements and then add factors specific to a procurement as needed. As a capture manager, you want to know what factors are required and what optional factors the agency might consider. After an agency selects factors, it tailors subfactors for each one to outline important considerations in the procurement and provide a basis for comparing bidders. Agencies have broad discretion to set subfactors for each procurement.

Past-performance evaluation factor

Past performance is a mandatory evaluation factor, and agencies must include it in every procurement that exceeds the value of the simplified acquisition threshold, unless the contracting officer specifically excludes it. The agency describes its approach to evaluating past performance and usually requires bidders to provide past-performance contract summaries for relevant contracts of similar size, scope and complexity. Past-performance selection criteria can be defined broadly or narrowly. For example, past-performance contract references might be restricted to contracts performed or completed in the past three years. Narrow definitions can eliminate some excellent contracts from being presented as past-performance examples.

For procurements that offer a significant opportunity for subcontracting, past-performance evaluation must include an assessment of how well the bidder met applicable small-business goals in previous contracts that required subcontracting plans.

Price as an evaluation factor

Price is a mandatory evaluation factor for contracts, including best-value procurements. However, its relative importance can vary. For example, when mission success is important to the agency, the relative importance of price in the evaluation criteria can be lowered in comparison with other evaluation factors. For commodity procurements or nontechnical services, the relative importance of price could increase. In the extreme, some procurements raise the relative importance of price to such a high level that the RFP will state, “Award will be made to the technically acceptable, lowest price (TALP) offeror.” That TALP evaluation criteria should never be used for technical or professional services. The RFP will state that all evaluation factors, when taken together, are significantly more important than, equal to or significantly less important than price.

Capture manager’s role in shaping the evaluation criteria

Capture managers should not leave evaluation factors and subfactors to chance. After an agency releases an RFP, those factors and subfactors are set and cannot be changed without considerable effort on the part of the agency. Shaping evaluation factors to highlight important considerations in a procurement can make the difference between your company being a winner or a loser.

About the Author: Bob Lohfeld is the chief executive officer of the Lohfeld Consulting Group. Published in Washington Technology on Jan. 21, 2011