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Promises to comply with RFP don’t win a contract

A recent bid protest provides an object lesson in how to prepare a successful bid—or otherwise effectively negotiate with the government in discussions over a proposal.

Background

On May 15, 2015, the U.S. Army Corps of Engineers issued a request for proposals (RFP) for upgrading trainee barracks at Fort Benning, Georgia. The solicitation indicated the choice of contractor would be made on a best-value basis. The technical evaluation criteria were the following, listed in order from most important to least important:

  1. Technical design.
  2. Time to complete the work.
  3. Past performance.

These three combined factors were equal in weight to the cost of the project.

History of bids and discussions

Three bidders submitted proposals. Several post-closing RFP revisions were issued and revised proposals submitted. On September 2, 2015, after evaluating the proposals, the contracting officer (CO) sent a discussion letter to the protester in which he identified 15 comments about weaknesses in the protester’s proposal and asked the protester to address each weakness directly with at least one of the following responses:

  1. Concur that the comment is valid and that your firm will comply with the comment if your firm is awarded the task order.
  2. Nonconcur that the comment is valid and explain why your proposal is correct.
  3. Provide a narrative response that clarifies your intent to comply with the comment.

In its response to the CO, the protester concurred with 12 of the identified weaknesses by using the following statement: “We concur that the comment is valid and our firm will comply with the comment and requirements of the RFP if awarded the task order.” For three of the weaknesses, the protester used the same language, but added additional language to explain how it would comply with the requirements. For example, for one weakness, the protester added this: “The existing roof will be demolished down to the structure.”

Results of final evaluation

This table summarizes the final ratings:

Criteria Protester Winner
Overall technical design Acceptable Outstanding
Building function and aesthetics Acceptable Good
Quality of building systems Good Outstanding
Contract duration and schedule Good Outstanding
Past performance Unknown Unknown
Price $32,070,000 $32,498,000

 

The CO determined that the winner’s proposal was the best value for the government, indicated that fact in a letter to the protester, and indicated that the protester was entitled to a debriefing. The letter didn’t identify any weaknesses in the protester’s proposal, but did identify three strengths.

Debriefing

In this case, the protester did something really good by actually asking for a debriefing. Receiving a debriefing is one of the best ways for contractors to learn how to improve their proposals, as well as collect evidence for a successful bid protest.

During the debriefing, the protester asked the CO for specific examples of why the building-and-aesthetics factor received a rating of only acceptable and asked for areas about where it could improve. In response, the CO indicated that responses to the discussion letter could have been more specific. He praised the response about demolishing the existing roof down to the structure, but indicated the general statement about complying with the RFP was a weak response. The CO further suggested that responses needed to be more specific and even suggested that the protester should cite to specific requirements in the RFP and “tell the Government exactly what you will do.”

In responding to similar questions about the quality of building systems, the CO told the protester: “Simply stating you will comply with the RFP does not explain and show the Technical Board exactly what you will be doing.” He further indicated that the protester’s response to the contract-duration-and-schedule factor was detailed and specific, but that giving some additional strengths besides fast-tracking the demolition and abatement could have increased the rating from “good” to “outstanding.”

Basis of protest

After receiving the debriefing, the protester filed its protest with the Government Accountability Office (GAO). The protester asserted that the Corps of Engineers had engaged in improper and misleading discussions by making it appear that each of the possible responses to the comments were equally acceptable and that one type of response (the more detailed one) was preferred over the other two.

Protest denied

The GAO denied the protest. Even though the Corps of Engineers indicated that the protester could respond in one of three ways without indicating a preference for one of the three ways, the GAO also pointed out that it did not indicate that all three possible responses would be considered of equal value. The GAO indicated that the protester should have known that providing more explanatory information was likely to increase its chances for a higher evaluation. (It was unreasonable to assume otherwise.) The GAO indicated that a procuring agency can reasonably consider the level of detail provided in discussions in evaluating proposals.

Lesson to be learned

When a procuring agency raises questions about the adequacy of a proposal, bidders should realize that the CO is usually telling the bidder that something is “going against them” in the process. The CO has given the bidder an opportunity to sell or better sell its product or service. More detail and better explanations are likely to overcome the weaknesses the CO has identified.

In this case, its very likely that the CO was trying to get the best deal for the Government. He could probably see that the protester had the lower bid, but the technical evaluators were concerned about the details of exactly how the protester could provide high-quality work at a lower price. Rather than awarding the contract to the offeror with the better proposal, the CO was actually providing the protester with an opportunity to do a better job with its proposal and possibly win the contract.

As the GAO wrote in its opinion, “Ultimately, an agency’s evaluation is dependent upon information furnished in the proposal, and it is the firm’s burden to submit an adequately written proposal for the agency to evaluate.”

For more information, see GAO decision Engineering Design Technologies, Inc., B-413281 (September 21, 2016).

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2016

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© 2016

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Monday, 23 October 2017

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