Federal Construction Contracting Blog : Federal Construction Contracting Law Firm : Cohen Seglias Pallas Greenhall & Furman PC : Construction Law, Dredging and Claims

A recent GAO decision highlights the need for offerors to fully understand a Request for Proposals (RFP) and to pay close attention to the details when preparing a proposal in response to an RFP.  In C. Martin Company, Inc., the agency rejected the protestor’s proposal, determining that it was technically unacceptable.  The agency discovered that the offeror had referenced outdated regulations, standards, and procedures.  Some of the references were to processes and standards that had been obsolete for at least three years.  It became evident that the offeror had incorporated parts of a prior RFP submission years before on a similar project.

The agency’s technical review team concluded that the proposal was deficient and that the offeror did not have a clear understanding of the RFP’s requirements.  The offeror was not given an opportunity to cure the deficiencies. After the offeror learned of the basis of its rejection during a debriefing, it filed a protest contending that the deficiencies in its proposal were minor and that it should have been given the opportunity to correct its proposal. Its main argument was that its proposal could easily have been corrected. 

The GAO, in denying the protest, stated that neither the ease of the corrective effort nor the “minor” nature of the deficiencies were determinative of whether the proposal should be accepted or rejected. Instead, the GAO held that the need for numerous revisions “evidenced an inherent lack of understanding or awareness of the current RFP’s requirements.”    The GAO succinctly stated in upholding the agency’s rejection of the proposal: “Offerors are responsible for submitting an adequately written proposal, and run the risk that their proposals will be evaluated unfavorably where they fail to do so.”

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The Society of American Military Engineers (SAME) reports, in its latest issue of the SAME Government & Industry e-News, that since the Department of Defense (DOD) Mentor-Protégé program began 16 years ago with one agreement, industry participants have formed nearly 1,000 more agreements. The scope of the program also has grown to include women-owned, service-disabled veteran-owned and historically underutilized business zone concerns.  In a recent Web-based survey of 48 former protégés conducted by the Government Accountability Office, most protégés reported that the program was a valuable experience that enhanced their business development and helped increase their contracts and revenues. Verifying the value of the Mentor-Protégé Program, 98 percent of the protégés reported that they would recommend the program to other eligible small businesses. Presently, more than 230 firms participate in the program, representing the manufacturing, service, construction, and research and development industries.

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We recently presented a number of seminars on the topic “How to Succeed in the New World of Federal Construction Contracting” that dealt with the shift from sealed bidding to negotiated procurement in federal construction contracting, as well as the increased use of Indefinite Delivery Indefinite Quantity (IDIQ) and Multiple Award Task Order Contracts (MATOC).  (See our upcoming seminar schedule and agenda).  One of the byproducts of this shift in procurement policy has been a reduction in the number of competitive opportunities resulting from the combination of many smaller projects into very large negotiated contracts.  As the examples below demonstrate, the era of $320 million construction contracts and $9 million to $24 million task orders has arrived.

Shaw-Dick Pacific, LLC, Honolulu, Hawaii, was awarded a $175,983,523 (first increment) firm-fixed-price contract for construction of the Hawaii Regional Security Operations Center at Naval Computer and Telecommunications Area Master Station Pacific. An additional $144,016,477 will be funded upon the passage of FY2008 Military Construction Appropriation Bill making the total amount $320,000,000. The contract contains one option which may be exercised within three months, bringing the total cumulative value of the contract to $320,040,000.  Work will be performed at Wahiawa, Hawaii, and is expected to be completed by June 2010.  This contract was competitively procured with 38 proposals solicited and two offers received. The Naval Facilities Engineering Command, Pacific, Pearl Harbor, Hawaii, is the contracting activity (N62742-07-C-1329). 

Rogers-Quinn Construction, Inc., Bonsall, Calif., was awarded $9,820,000 for firm-fixed-price Task Order 0009 under a previously awarded indefinite-delivery/indefinite-quantity multiple award construction contract (N68711-02-D-8062) for construction of the Reserve Training Center at Marine Corps Air Ground Combat Center, Twentynine Palms.  The work to be performed provides for the construction of a single-story, steel framed structure with spread footing foundation, concrete floor, reinforced masonry walls, standing seam metal roofing system, fire protection system, heating, ventilation and air conditioning systems, specially constructed weapons storage area (armory), lithium battery storage area, staging areas, classrooms, storage and supply areas, drill hall, administrative spaces, locker and shower rooms, workshops, electrical utilities and mechanical utilities. Work will be performed in Twentynine Palms, Calif., and is expected to be completed by June 2008.  The Naval Facilities Engineering Command, Southwest, San Diego, Calif., is the contracting activity.

Harper Construction Co., Inc., San Diego, Calif., was awarded $24,855,000 for firm-fixed price Task Order 0005 under a previously awarded multiple award construction contract (N68711-02-D-8019) for family housing replacement in the Desert View and Club Street Area at Marine Corps Logistics Base, Barstow.  The work to be performed provides for design and construction services for 74 family housing units and a community center, consisting of all necessary site clearing, grading, demolition, improvements, structures, and off-site work as required. Work will be performed in Barstow, Calif., and is expected to be completed by June 2008.  The Naval Facilities Engineering Command, Southwest, San Diego, Calif., is the contracting activity.

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One of the most important factors considered by agencies in negotiated procurements is the past performance of an offeror. In addition to the information that an offeror might provide in response to a solicitation, source selection officials can access the performance evaluations from an offeror's prior federal contracts.  It is important, therefore, for Federal construction contractors to know what information on their past performance is available to procurement officials.

A contractor can review its own performance evaluations on the internet by accessing the Business Partner Network website, [www.bpn.gov]. and clicking on the link Past Performance Information Retrieval System, PPIRS. [www.ppirs.gov].  The PPIRS is maintained for the government by the Department of the Navy.  The Navy requires that, before accessing the system, a senior management representative must register by submitting a Senior Management Access Request Form to the office identified on the form. [http://www.cpars.navy.mil/accessforms/csmarf.htm]

In addition, before accessing the PPIRS a contractor must not only be registered with the Central Contractor Registration (CCR), [www.ccr.gov] but also must have created a Marketing Partner Identification Number (MPIN) in its CCR profile. Instructions on creating an MPIN are available on the CCR website.

As everyone who has dealings with the federal government is learning, access to government information is becoming more difficult, particularly information from the Department of Defense.  Obtaining the past performance information on your federal contracts is no exception.  As of November 1, 2006, contractors must also have a valid DoD PKI (Public Key Infrastructure) certificate.  For most federal construction contractors, this certificate must be obtained from an External Certificate Authority (ECA). The approved ECA vendors for the Department of Defense are VeriSign, Inc. and Operations Research Consultants, Inc.

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