“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.

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