Who Are You?

August 25, 2018 on 4:37 pm | In Bids and Proposals | Comments Off

(With apologies to Pete Townsend and his buddies)

Sometimes the government has a pre-approved source list. If you are not on the list, you are not eligible to receive the award. In a recent case there was considerable confusion over who was actually making the offer to the government – the entity on the approved list or some other party. The government maintains the System for Award Management (SAM) and entities that register there must provide a Dunn and Bradstreet (D&B) ID, and are assigned a Commercial and Government Entity Code (CAGE Code) by the government. The CAGE Code, among other things, can further distinguish among different locations of an entity.

The identity of the entity proposing to the government is extremely important. Who can be held legally responsible for performance? Who should receive payment? Is someone trying to broker government contracts in violation of the Anti-assignment Act?

In a recent protest to GAO the protester asserted that an award was made to an entity NOT on the approved list. In a review of the file documentation, including the SAM registrations, D&B numbers, and CAGE Codes, the GAO provided an explanation of the systems used for the identification of entities.

Uncertainty as to the identity of an offering entity renders an offer technically unacceptable, since ambiguity as to an offeror’s identity could result in there being no party bound to perform the obligations of the contract. [Citations omitted] Generally, the entity awarded the contract should be the entity that submitted the initial proposal. [Citations omitted] The information readily available, such as CAGE codes and DUNS numbers, must reasonably establish that differently-identified entities are in fact the same concern. [Citations omitted]  CAGE codes are assigned to discrete business entities for a variety of purposes (e.g., facility clearances, preaward surveys, and tracking the ownership of technical data) to dispositively establish the identity of a legal entity for contractual purposes. [Citations omitted] Similarly, the DUNS numbering system is established by Dun & Bradstreet Information Services, and discrete 9-digit numbers are assigned for purposes of establishing the precise identification of an offeror or contractor. [Citation omitted] On an SF 33, the CAGE code and DUNS number are used to identify the entity that is the offeror for a given procurement.[1]

In this case the facts are rather interesting.

The record shows that LSL’s proposal identified the correct part number, but did not reference CAGE code 55064, the approved source CAGE code. Instead, throughout its proposal, including its SAM registration and the SF 33, LSL identified its CAGE code as 1HFE7.17 Additionally, while the SAM registration shows that the entities associated with CAGE codes 55064 and 1HFE7 are both named Logistical Support, LLC and have the same address, each entity possesses a different CAGE code, DUNS number, DBA name, and activation date. The record also shows that the SAM registration and D&B report offered by the agency identify the existence of multiple entities associated with the Prairie Street address and parent/affiliate relationship between LSL and the approved source.[2]

Got that? Without parsing the details, the bottom line is that the vendor had several confusing sets of data registered in SAM. What it was trying to achieve from a business perspective is not addressed. Additionally, the offeror was unclear in its proposal and the manner in which it identified itself as to its eligibility to provide items on the approved vendor/parts list. Thus the offer initially introduced the confusion in its proposal. And we all know whose responsibility it is to submit a clear proposal. When challenged, the agency attempted to clarify the offering entity and determine whether the offeror was eligible for award. According to GAO the agency botched the documentation of their efforts to resolve the confusion – leaving the confusion in place. The key questions become, who are you or who do you represent yourself to be? How do you identify yourself and validate your eligibility for the award? Both the D&B number and its associated system and the DLA CAGE code and its associated system are designed to ensure the government is crystal clear on the entity with which it is contracting. Here the contractor was less than clear and when the contracting agency attempted to clarify that identity, it failed to properly document its process that would permit the GAO to determine that it made a reasonable decision.

We have often talked about the importance of having a current and accurate SAM (previously CCR) registration. Here the awardee was given another chance via the agency’s re-evaluation of the situation. It is extremely unwise to base the success of your proposal on either luck or reliance that the government will perform their job accurately and effectively. The only thing GAO reviews is whether the agency action was reasonable based on the record it was given. When the vendor introduces the confusion into the system over their own identity, perhaps the answer is that they are too stupid to hold a government contract at all. That might sound harsh, but a lot of time, money and effort was wasted sorting it all out after the fact. Did I mention that the protestor was awarded its protest coasts as well?[3]

Moral: Don’t be stupid, and don’t rely on your government counterpart being any smarter.

[1] United Valve Company, B-416277; B-416277.2. July 27, 2018.

[2] Ibid.

[3] For an interesting case see GC Works, Inc., B-416379; B-416379.2, August 14, 2018, where the protestor alleged that the awardee was ineligible for award because it had no SAM registration at all. GAO reviewed the agency’s verification documentation and found that the entity WAS fully and properly registered in SAM. The decision is unclear on why the protestor couldn’t seem to find the registration in the system.

What if – a Company has a Defective SAM Registration?

August 22, 2018 on 12:58 pm | In Bids and Proposals, Getting Started, Marketing to the Government | Comments Off

One requirement under the Federal Acquisition Regulation (FAR) is that in almost every case, any entity receiving a contract award must be registered in the System for Award Management (SAM) a government-run portal to identify every entity with which it does business. The registration can be done online by anyone, and is not that complicated, but does take some time and some familiarity with the various clauses found in FAR that find their way into many contracts.

What if the person doing the registration messes up? What if some aspect of the registration is omitted or just false? Is the entity ineligible for award? Not necessarily. In a recent case the protestor contended that a defective SAM registration made the awardee “technically unacceptable or otherwise ineligible for award.” Specifically, the awardee’s SAM registration indicated that it did not have an immediate owner or owners when in fact it did. An immediate owner (per GAO):

is defined as “an entity, other than the offeror, that has direct control of the offeror.” FAR clause 52.204-17 at (a). The clause specifically requires that “[i]f the Offeror has more than one immediate owner (such as a joint venture),” then the offeror must disclose the identities and Defense Logistics Agency (or North Atlantic Treaty Organization, if applicable) Commercial and Government Entity codes for the offeror’s immediate owners.

There is no question that this entity had provided a false certification within the SAM system. The protestor attempted to claim that this created prejudice against the other offerors.

GAO disagreed:

 Competitive prejudice is an essential element of any viable protest, and where none is shown or otherwise evident, we will not sustain a protest, even where a protester may have shown that an agency’s actions arguably were improper. [Citation omitted] With respect to allegations that an offeror’s SAM registration is inaccurate or incomplete, our Office has generally recognized that minor informalities related to SAM (or its predecessor systems) registration generally do not undermine the validity of the award and are waivable by the agency without prejudice to other offerors. [Citations omitted]  We have found no prejudicial error in these cases largely because an awardee’s registration status does not implicate the terms of its proposal, and there is nothing to suggest that another offeror would have altered its proposal to its competitive advantage in response to a relaxed SAM registration requirement. [Citations omitted] Even accepting CPT’s allegations that CS3’s SAM registration was not in compliance with applicable FAR provisions or otherwise was inaccurate, the protester has not established that it was prejudiced by the agency’s waiver of the SAM registration requirement. It has not, for example, demonstrated that CS3’s SAM registration provided the intervenor with any competitive advantage, or explained how CPT would have amended its proposal had it known that the agency would not strictly enforce the SAM registration requirements.[1]

What lessons can we take from this?

Rule #1: NEVER rely on a defective SAM registration. Whether to waive any error in the registration and in fact often the determination of what is a error will be almost entirely within the discretion of the contracting officer. No two are going to view the same facts in an identical manner. If the CO in this case HAD determined that the SAM registration was not a minor informality, the awardee here may have become the protestor and may very well have not won the protest. GAO tends to give great deference to an agency’s use of its discretion in such matters. After all, it is the agency that has to live with the decision, not the GAO. Thus – complete your SAM registration completely and accurately. In fact complete every aspect of your proposal completely and accurately. Win the competition fairly and squarely; do not rely on dumb luck or the uncontrollable discretion of a party that may or may not be sufficiently knowledgeable and experienced to make a decision of this type.

Rule #2: Never forget that GAO is looking for competitive disadvantage. If the procurement is conducted in a fair manner, even if it does deviate somewhat from the proscribed procedure, GAO will often not find the procurement defective. Given the cost of pursuing a protest (and the new filing fee), carefully consider whether you can clearly demonstrate competitive disadvantage to yourself based on the alleged defect.

Rule #3: The integrity of the procurement process is paramount. Even so, the range of discretion afforded a contracting officer can be amazingly broad, whether or not their training and experience has prepared them to properly exercise that discretion. The risk is in guessing how an agency might view any irregularity in the process. When GAO reviews the facts in any protest, they look solely at whether the action was “reasonable” and whether the basis for the reasonable action is properly documented.  If the method, conclusion, and documentation are clear and reasonable, the agency determination will stand. This returns us to Rule #1.


[1] Cyber Protection Technologies, LLC, B-416297.2; B-416297.3. July 30, 2018.


“Use of Consultants on Proposals Prohibited, says GAO” Really?

May 4, 2015 on 6:25 pm | In Bids and Proposals | Comments Off

On March 25, 2015, GAO issued an opinion that has been much maligned in the press and commentaries. As described by some, the ruling was that consultants could no longer be used to assist in proposal development. This is a gross misstatement of what GAO actually held.
In the Matter of Advanced Communication Cabling, Inc. the protestor objected to RFP language that limited responses to one segment of the RFP to actual employees or subcontractors on the team. They argued that such language limited the ability of some firms to compete, thus limiting competition contrary to FAR requirements. This is a legitimate matter to bring to GAO, and as it relates to the terms of the solicitation, must be brought before the date set for the receipt of proposals.

The RFP anticipated the use of multiple awards for task order contracts where tasks would be priced under a variety of pricing schemes. Anticipating a large number of offers, and in order to distinguish among the offerors and their capabilities, the VA posed a set of three hypothetical tasks for which the offerors had to propose solutions. As described by GAO:

With regard to the sample tasks subfactor, the RFP directs offerors to describe their approach to performing three hypothetical tasks, to include identifying the labor categories the offerors would use to perform the tasks. … The RFP provides that the sample tasks “are designed to test the Offeror’s expertise and innovative capabilities to respond to the types of situations that may be encountered in performance of a contract resulting from this solicitation.” … The RFP further provides that in evaluating each sample task, the VA will consider the offeror’s understanding of the problem and the feasibility of the offeror’s proposed approach. … As to the latter, the RFP provides that “[t]he evaluation will also consider the realism of the labor categories being proposed in the Offeror’s response to the sample tasks.” (Citations omitted).

The RFP also placed the following restriction on offerors, again as described by GAO:

Notably, the RFP expressly prohibits offerors from using consultants to assist them in preparing their sample task responses. … In this regard, the RFP requires an offeror to certify, using a form provided with the RFP, that its sample task responses were prepared only by the offeror and its subcontractors, provided that any such subcontractor has entered into a contractor team arrangement (CTA) with the offeror and is identified in the offeror’s management proposal. Id. The RFP provides that the agency will not consider proposals which do not include the certification or which provide a falsified certification. (Citations omitted.)

This is the language to which some have hung their argument that consultants would no longer be permitted on proposals. This is wrong on several levels. The restriction that GAO reviewed and found reasonable was solely that consultants could not be used to draft the solutions to the hypothetical tasks. That is only one portion of an RFP response, and as drafted was actually a very narrow restriction.

According to the VA, it prohibited offerors from using consultants to assist in the preparation of the sample task responses in order to help ensure that the responses received by the agency would reflect the technical abilities of the offerors and their subcontractors, and not that of outside experts who would not be involved in performing the contract. … The VA reasons that this restriction reduces the risk of unsuccessful performance because it makes it more likely that its technical evaluation will be based on the knowledge and abilities of the individuals who would actually be involved in performing under an awarded contract. (Citations omitted).

In a footnote, GAO noted that VA cited experiences where the proposed solution from a variety of offerors were nearly identical, making substantive comparisons impossible. It is as if there were a “textbook” answer that each offeror gave, without consideration of how THEY would perform based on the resources and capabilities actually available to them.
It is important to understand GAO’s standard of review. It is not GAO’s role to replace its judgment with that of the agency. GAO often notes that it is within the discretion of the agency to establish its requirements and to set the standards by which meeting those standards will be measured. GAO will only “examine the adequacy of the agency’s justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny.” As to the evaluation criteria, GAO will not object to the agency’s choices, “so long as they reasonably relate to the agency’s needs in choosing a contractor that will best serve the government’s interests.” Look carefully at the choice of words in those two quotes – “rational,” “logical scrutiny,” and “reasonably.” Those words tell you clearly that GAO does look for a single “right” answer. The standard is one of reasonableness, and as we all know, reasonable people can and do differ. The agency’s actions must be reasonable, rational, and withstand logical scrutiny. In a phrase, do they make sense in the context? Similarly, as GAO noted, an agency might consider the past performance of the entire contract team, including subcontractors OR might limit such review to the past performance of the prime contractor alone since it is only the prime contractor that is on the hook for successful performance. In this case, GAO found that “it is reasonable to require that the sample task responses be prepared by the firms proposed to perform the contract, as opposed to outside consultants who have not been identified as members of the offeror’s team.”
The GAO went on to state that consultants COULD be involved if they were within the Contract Teaming Agreement – i.e. part of the group that will in fact perform the contract. The decision is also completely silent on the use of consultants for ANY OTHER PART of a proposal. The task descriptions were only one part of a relatively large and complex RFP. GAO did NOT prohibit the use of consultants. It only held that it was reasonable for the agency, under the circumstances of that solicitation, to limit who could offer the contractor’s proposed solutions on the sample tasks. This does not make it the “right” answer; it is merely one acceptable (reasonable and rational) way for the agency to lower the risk of failed performance.
So those who have been scared into believing that consultants were no longer permitted to assist offerors on proposals can put their fears aside. Hire the best consultants you can find, particularly if your internal staff is thin or inexperienced. Just follow the proposal instructions on who can do what.

Do You Compete With Federal Prison Industries?

October 7, 2009 on 3:44 pm | In Bids and Proposals, Marketing to the Government | Comments Off

Under applicable federal procurement rules certain products are required to be purchased from Federal Prison Industries (FPI). These purchases are intended to give prisoners productive work and a method to pay, at least in part, for their upkeep and maintenance. The problem is that there are companies in the commercial marketplace that are effectively frozen out of the federal market since they produced the same things as FPI.

In a recent decision, GAO had occasion to review the statutory and regulatory underpinnings of the current role of FPI in federal procurements.  Ashland Sales & Service Company. B-401481,September 15, 2009.

 FPI is a self-supporting, wholly-owned government corporation that was established to provide employment and training to federal penal inmates involving the production of commodities for consumption in prisons or for sale to government agencies. 18 U.S.C. §§ 4121, 4122 (2006); Federal Acquisition Regulation §§ 8.601(a), (b). For DOD, the requirements for the procurement of products from FPI are defined by the National Defense Authorization Act (NDAA) for Fiscal Year 2002, (citations omitted).

In 2008 Congress changed the process for determining when FPI is a preferred provider. This law created a new procedure for obtaining products from FPI for situations where FPI has been determined to have a “significant market share” of the product category in question as follows:

The Secretary of Defense may purchase a product listed in the latest edition of the Federal Prison Industries catalog for which Federal Prison Industries has a significant market share only if the Secretary uses competitive procedures for the procurement of the product or makes an individual purchase under a multiple award contract in accordance with the competition requirements applicable to such contract. In conducting such a competition, the Secretary shall consider a timely offer from Federal Prison Industries.
* * * *
For purposes of this subsection [2410n(b)], Federal Prison Industries shall be treated as having a significant share of the market for a product if the Secretary, in consultation with the Administrator of Federal Procurement Policy, determines that the Federal Prison Industries share of the Department of Defense market for the category of products including such product is greater than 5 percent.

So if FPI has captured 5% or more of a market segment, then DOD publishes that list from time to time as the DOD determines necessary. In the particular procurement before the GAO here, the product was “8405, Outerwear, Men’s” and it had been added to the list on June 3, 2009, with an effective date thirty days hence. Based on a solicitation issued within this window, and after conducting market research on these items as required by the statute, the agency decided to obtain them from FPI non-competitively. The protestor argued that since FPI now had a greater then 5% market share, the use of the set-aside was improper. The issues before GAO included the discretion of DOD in publishing the list with a later effective date, and the proper role of FPI in the federal marketplace.
The GAO analysis began with the interpretation of the relevant statute. For GAO and other decision makers when conducting statutory interpretation, they start with an analysis of the language in the law – does it provide an unambiguous expression of the intent of Congress? If so, the analysis ends there because the unambiguous intent of Congress must be given effect. (citations omitted) If, however, the statute is silent or ambiguous with respect to the specific issue, the decision maker will turn to the interpretation given to the statute by an agency responsible for administering the law; in this case DOD (citations omitted). Generally if the agency has interpreted ambiguous provision of the statute through a process of rulemaking or adjudication, the decision maker will provide great deference to that interpretation unless the resulting regulation or ruling is procedurally defective, arbitrary, or capricious in substance, or manifestly contrary to the statute. (citations omitted) On the other hand, where the agency’s position reflects an informal interpretation, deference is not warranted; in these cases, the agency’s interpretation is “entitled to respect” only to the extent it has the “power to persuade.” (citations omitted) The weight given to an interpretation under this lesser standard depends “upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.”

So in a nutshell, and these rules apply whenever statutory or regulatory interpretation is required to resolve a dispute, if agencies follow a formal process of rulemaking/interpretation under authority granted to them by Congress then the courts and boards will generally follow that interpretation. If the interpretation is merely advisory, or informal in its creation, it is provided much less deference, but is given weight to the degree it makes sense and is persuasive. These are good rules to remember when reading laws or regulations.

Another rule of statutory interpretation cited by GAO is the rule that “[a] statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section as to produce a harmonious whole.” (citations omitted).

In this case, GAO determined that the timing of the update was proper, and even though a determination had been made that FPI had a greater than 5% market share for these products, the formal publication provided for 30 days to become effective. Thus the procurement from FPI under a non-competitive acquisition was proper.

So there are two lessons to consider here. If you compete with FPI, you will not have an opportunity to sell to the government unless and until FPI reaches a 5% market share. You might make your product commercially unique in a way that meets a government need, but is not copied by FPI. Intellectual property protection might be one way to do this. Second, this GAO opinion provides some excellent guidance on how adjudicative bodies interpret statutes and regulations. As confusing as they may be sometimes, these are standard rules of interpretation. Given the number of regulations and statutes that are involved in government procurement, these rules are worth remembering and applying.

Taking Exceptions

June 3, 2009 on 2:22 pm | In Bids and Proposals | 4 Comments

There is boilerplate in almost every government solicitation, and many from prime or higher-tier contractors, that says in effect. “you must accept our terms and conditions or you will not be considered for award.” The exact phrasing varies, but the point is clear – in any battle of the forms, buyer wins.

And it is also true that almost all offerors (especially under a government RFP or a subcontract request from a higher-tier; less so under an IFB since that will risk being found automatically non-responsive) will engage in that classic battle of the forms (see the classes on the UCC) and take exception to some portion of the terms and conditions.

So the question becomes in a government solicitation, when is it appropriate to take exception to the terms, conditions, or requirements, and when will you run a greater-than-usual risk that you will be found non-responsive, or fail to meet an essential element of the solicitation? That was the question raised in the protest of Northern Light Productions against a competition held by the National Park Service and decided just this week.

The solicitation, which was for the purchase of various audio-visual productions, stated that the government expected to get unlimited rights in anything produced by the contractor. Once they paid for it, they had no interest in dealing with future licenses or royalties. It was, as is often the case, designed to be a “work for hire” that would let NPS use the material for training, publication, advertising, or whatever. Forever. It was to be theirs to do with as they pleased. Part of the evaluation specifically said, “Evaluation will also include your understanding of the Rights in Data clause and other licensing requirements.”

In its initial proposal Northern Lights made no reference to data rights, but in a later revision it stated that the rights to be granted were “for educational and museum presentation use for the life of the program, up to twenty years.” This was factored into the evaluation by the evaluation team, but upon review by the contracting officer, she determined that this reservation made the proposal unacceptable for failing to meet an essential requirement of the solicitation.

So what was it, a minor exception to a term or condition or a material element of the solicitation? The GAO cited the rule that in “negotiated procurements, a proposal that fails to comply with the material terms of the solicitation should be considered unacceptable and may not form the basis of award.” In a footnote to that rule GAO further explained that “clearly stated RFP requirements are considered material to the needs of the government.” GAO further noted that the RFP contained a “deviations and exceptions” clause that notified offerors that exceptions would not, in and of themselves, automatically cause a proposal to be deemed unacceptable.

The protestor argued that since the exception had been evaluated and scored, it could not later be a strict past/fail criterion. It was part of a ten-point factor, and even if they had been scored as a zero in that factor, they should still be considered for award. Further, it argued, since it did not list anything in the “deviations and exceptions” clause, it could not be considered a disqualifying item.

None of this was persuasive to GAO. They denied the protest on the basis that the requirement was clearly stated, it was reviewed by the agency (thus it was not an “automatic” disqualification) and in the agency’s discretion, the failure to permit unlimited rights was a material deviation thus making the proposal unacceptable. GAO, while it might have reached a different conclusion regarding the structure of the RFP or in the evaluation scheme, it was not inclined to say that the agency acted unreasonably in meeting its needs.

So what are the lessons? First, do not make material changes in an updated proposal. Introducing an exception that late in the process is just asking for trouble. Address the items that were raised during discussions, fine tune a few things if you choose, but do not take exception to a clearly articulated government requirement. And that is the second lesson. When the government says they need something – give it to them. If you can’t, don’t make an offer in the first place. If you think that the requirements are overly restrictive, the time to ask that question is BEFORE the initial submission, not after you have lost the competition.

Taking exceptions with the government is always risky. Companies that are more accustomed to commercial practices where the Uniform Commercial Code will step in to determine the terms of the contract are often surprised at the rigidity of the government process. In the expenditure of public funds, and fairness to all competitors, the government cannot permit such deviations. Yes, certain exceptions will generally not get you thrown out, but talk to someone who knows. Taking exceptions is not a best practice with clearly stated government requirements.

Northern Light Productions, B-401182, decided June 1, 2009.

Debriefings – Get the Facts

May 22, 2007 on 5:55 pm | In Bids and Proposals | Comments Off

A client called today to let me know that a $6 million proposal they had submitted had been lost to a higher priced offeror. Their concern was twofold. First, they had been told that they had not met the technical requirements. Second they were told that they had not assured the government that they would meet the delivery schedule. What were their options?

Now it’s important to note that I had never read the solicitation, had not participated in their proposal process, and had not been provided a copy of their proposal. I have no idea if they followed my usual advice to create a solicitation compliance matrix to ensure that they had in fact (and could prove) that they had met each and every RFP requirement. In other words, the evaluation may be 100% accurate. But I had no way of knowing that.

My first suggestion was that they request a debriefing, and that they do so immediately. Why immediately? According to regulations, a debriefing is to be provided to assist the offeror in learning how to provide a better response to this contracting office in the future. But we all know that there are additional reasons to get a debriefing. The most important alternate reason is to preserve any rights that you might have with a timely protest – the biggest benefit of which could be the prevention or cessation of performance until the protest is settled. While the agency has certain “override” authority even in the face of a protest, it is important to do what you can to preserve your rights and options.

How do you request a debriefing? Simply put it in writing! But there is an art to crafting such a request. You want to provide the reasons for the debriefing and a brief description of why you believe that a mistake might have been made. In this case the supplies being furnished were the exact same part number and manufacturer as the one offered by the successful offeror! How could they be technically compliant for one offeror, but not for the other? Worthwhile question to ask. Further the offeror could point to three places in their proposal where they provided information on the delivery schedule and their ability to meet it. Curious that the government would not have seen that.

We reviewed the draft letter for the client, and added language that softened the tone, but made clear that if satisfactory explanations could not be provided the client was prepared to go to the next step – filing a formal protest with the Government Accountability Office (GAO). They dispatched the letter this afternoon and are awaiting an answer.

Why is all of this important? Agencies do make mistakes, and it is always best to give them a chance to either correct it or to provide an explanation for their actions and decisions. It is relatively inexpensive to file a protest, but responding to the agency’s report to the GAO can begin to raise the costs considerably and quickly. If a hearing is held (usually in DC) the costs climb proportionately. If an agency has truly done something wrong in the procurement process, GAO is a reasonable and effective review option. But start with the debriefing. Get the facts. Even if you disagree with the decision, at least understand why the agency believes its decision was sound. Occasionally the agency takes a position at this stage that “locks them in” to a basis for their action; giving them no chance to change their story when they think of a better one later. But be courteous, allow them a reasonable out if they have made a mistake, and don’t forget that the REAL reason for a debriefing is to learn how to prepare better proposals for THIS customer. Even if a protest is not the ultimate objective, a debriefing should always be requested. There is a lot you can learn and put to use on future proposals.

How to Manage Past Performance

May 12, 2007 on 8:43 pm | In Bids and Proposals | Comments Off

One question I get frequently has to do with a company’s past performance. With the government attempting to use more commercial practices, while balancing that with the need to protect the public dollars through competitive sourcing, one (partial) solution is to put greater emphasis on past performance. In this way, contractors who have done well will be “rewarded” with a better competitive score than those contractors who have a poor performance record. According to FAR, (see below) if you have NO past performance, you are to receive a neutral rating on past performance. The idea behind that stroke of wisdom was to encourage new players to enter the market. In fact, any contracting officer who has equally scored (technical) proposals will ALWAYS go with the vendor that can demonstrate successful past performance since having quality vendors will always be “in the government’s” best interests. So while the regulation SAYS that you will not be down-graded for lacking experience, the reality is that you will be.

So how do you establish and protect a good past performance record? We are going to start with the assumption that you actually HAVE performed well in your past contracts. If not, then this advice is not going to help you. The best way to document your past performance is to set up a file in your computer that records EVERY task you have successfully accomplished in the last three years. Most past performance requests are limited to the past three years. Typically as well they will ask that the task be of the same “size and complexity” as the one being solicited. Make sure that you record the contract number, its value, its dates of performance, and who the technical monitor(s) and contracting officer(s) were. For these points of contact record the email, the mailing address, the phone number (including mobile if you have it) and a fax number. Additionally, try to get a central number for the contracting shop. People have a bad habit of moving or retiring and it can become difficult to locate them. Then in as much detail as possible, describe EVERYTHING that you did to perform that contract. Why all this detail? Well, very few future jobs will be EXACTLY like this one, but if you can capture enough pieces and parts of past jobs so that it looks like the current opportunity, you are in much better shape.

FAR also permits the contracting officer to consider other relevant experience by stating that “The evaluation should take into account past performance information regarding predecessor companies, key personnel who have relevant experience, or subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition.” FAR 15.305(a)(2)(iii). So make sure that your database captures these elements as well.

When you are ready to respond to a specific solicitation, drag this file out and review it for anything that looks, sounds, or smells similar. From this detailed description, boil it down into the salient points that relate as directly as possible to the current statement of work (SOW). Try very hard not to overstate your accomplishments, but by all means frame it in the best possible light.

Now – a key step that is too often overlooked. Contact each and every person listed in this tailored write-up and VERIFY that they agree with what you have said. If not, clarify the details and if you can’t come to agreement – DON’T use that reference. This process gives you the additional opportunity to renew old acquaintances and do a little marketing, even if it just to let them know that you are still active in the business and constantly seeking new opportunities. If in fact they are NOT happy with your past performance, this gives you an opportunity to mend some customer relations.

Every project (and a contract is a “project” by Project Management Institute definitions) should have a lessons learned document in the close-out file. The update of the “past performance database” (or whatever you call it) should also be mandated by your company procedures. Remember – no job is done until the paperwork is complete, and that is particularly true for government work. Keep this past performance list current. It allows you to respond much more quickly, accurately and completely to a request for past performance references. Do it NOW. Don’t wait until you need it – then will be too late.

FAR Reference: FAR 15.305(a)(2)(iv) In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance.

Additional questions? Go to www.Ask-Tom-Reid.com and let me know!

Even the Big Boys Mess Up

April 19, 2007 on 9:29 am | In Bids and Proposals | Comments Off

The “single” portal for accessing bid and proposal opportunities is FedBizOpps, but what some agencies do is maintain their own site. To meet legal requirements, they post only a notice on FedBizOpps that the real substance of the IFB or RFP can be found on that agency’s opportunity site. Some of them even require that you create an account there before you can access the information.

The Department of the Interior does this and in a recent competition for legal research databases one of the competitors failed to follow up before submission and missed an amendment. The players here were Westlaw and LexisNexis, companies that you would assume to have pretty sophisticated proposal systems in place. But Lexis made two mistakes. First, they submitted a confusing proposal by including material in an appendix without explaining how that information addressed the requirements of the RFP. In reviewing the agency’s actions the Government Accountability Office (GAO) said:

In contrast, with respect to [certain RFP requirements], the protester asserts that the agency should have found various lists of information sources in the appendix to be comparable to the requirement in the RFP; the agency is under no such obligation to parse the protester’s proposal to try to determine whether the proposal offers comparable sources of information. Even assuming that the information offered in the proposal’s appendix is comparable to the required databases, by placing the information in the appendix and requiring the agency to piece together the proposal’s content, the protester failed in its responsibility to clearly demonstrate compliance with the RFP requirements.

Further, Lexis argued that the amendment was not properly posted. In response the GAO stated that, “The agency’s posting on the FedBizOpps website had a clearly identified hyperlink to additional information, including amendments. The agency has explained at length when and how it posted the amendment to both the DOI/NBC EC website and, through the hyperlink, to FedBizOpps.” GAO went on to also note that, “In this regard, we note that the awardee states that it found the amendment the day it was posted by ‘carefully monitor[ing] both FedBizOpps and the [DOI/NBC EC] website for any postings.’”

So the lessons here are quite clear. First – it is YOUR responsibility to make sure your proposal is clear to the evaluators. The use of an RFP Compliance Matrix can be quite useful in assuring that this is done. Second – it is YOUR responsibility to locate any amendments to the solicitation once it is posted. And it is irrelevant that some agencies play a bit of hide and seek both with their announcements and amendments by using their own sites to post the relevant information.  If you have questions about any of this – please ask!

Late is Late – darn few exceptions!

April 2, 2007 on 12:18 pm | In Bids and Proposals | Comments Off

For the novice, let me first explain that the Government Accountability Office (GAO) is a branch of the legislative arm or our government. When a participant in any federal procurement believes that it may have been treated unfairly, it has a right to complain to GAO for review of the agency’s actions. This action is called a “protest.” Thus a large body of law related to how procurements are supposed to be conducted revolves around GAO decisions. What I want to discuss today involves a GAO decision.

An incumbent transportation contractor submitted its proposal to one of two addresses listed in the original RFP which happened to be where it had submitted its proposals previously. Upon delivery, a clerk in that room acknowledged that it was the proper location for delivery of the proposal, and provided a receipt evidencing timely receipt of the proposal. Prior to this date, the agency had issued a modification correcting one of the two addresses for receipt, but not clarifying which was correct. The purchasing contracting officer (PCO) was unaware a proposal from this entity until the protest was filed.

The protestor argued that it had made timely delivery or alternatively that the late receipt was due to government mishandling after receipt, one of the very few exceptions that permits the acceptance of a late proposal. In response, the GAO said:

It is an offeror’s responsibility to deliver its proposal to the proper place by the proper time, and late delivery generally requires rejection of the proposal. Federal Acquisition Regulation (FAR) § 15.208; The Staubach Co., B-276486, May 19, 1997, 97-1 CPD ¶ 190 at 3. However, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause for the late submission, and where consideration of the proposal would not compromise the integrity of the competitive procurement process. Caddell Constr. Co., Inc., B-280405, Aug. 24, 1998, 98-2 CPD ¶ 50 at 6. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time.


In reviewing the facts, the GAO further stated:  Whatever the protester may have done to satisfy proposal delivery requirements in prior procurements does not excuse the protester from its burden to ensure timely delivery of its proposal at the location specified in the solicitation. See Schmid & Kalhert GmBH & Co. KG, B-233467, Feb. 13, 1989, 89-1 CPD ¶ 148 at 3. In short, there is nothing in the record showing that any affirmative government action deprived the protester of the ability to make proper delivery of its proposal.  In a footnote GAO also addressed the standard rule concerning the timeliness of proposals complaining of defects in the RFP must be filed PRIOR to proposal submission. Specifically:
To the extent the protester challenges the delivery instructions themselves, this ground of protest is untimely. Here, any alleged flaws in the delivery instructions constituted a defect in the solicitation that was apparent prior to the time for submitting proposals and had to be protested prior to that time, which [the protestor] did not do here. See Bid Protest Regulations, 4 C.F.R. § 21.2(a)(1) (2006). 

In conclusion GAO held that “we find no basis to conclude that improper government action caused the late submission of [the protestor’s] proposal.”

What is the lesson to be learned? It is YOUR job to get the proposal or bid to the right office before the due date. Only in very rare situations will an exception be made. Placing the package in the mail, entrusting it to a FedEx or UPS-type of carrier, or having someone deliver it personally still places the full burden on you. Late is late.

This is a significant deviation from many commercial standard practices, so it is important to recognize that all of your work of preparing a proposal can be lost in the wind over this simple logistic matter. Don’t take such risks. If there is confusion – contact the CO; if there is an ambiguity in the RFP, request clarification or file a protest prior to the due date; but whatever you do – get it to the right office on time!

Shirlington Limousine & Transportation, Inc., B-299241.2 , March 30, 2007.

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