Federal Construction Contracting Lawyer & Attorney : Payne Hackenbracht & Sullivan : Construction Law, Dredging and Claims

An important decision, Serco, Inc. v. United States was issued by the United States Court of Claims last week in a case involving a government-wide acquisition contract (“GWAC”) awarded by the General Services Administration (GSA) to provide technology products and services to the entire federal government.  Sixty-two offerors competed for a chance to perform task orders under this GWAC.  In ranking the technical proposals of these offerors, GSA teams assigned adjectival ratings to various subfactors and then converted them into whole numbers ( e.g., 3, 4, 5). Combining, averaging and weighting these figures, the agency ended up with technical scores that were carried out to three decimal points ( e.g., 3.817), and it made critical distinctions among the sixty-two offerors based upon the thousandths of a point.  Based upon these technical scores, twenty-eight contractors were designated by the agency as “presumptive awardees.”  GSA then purported to conduct price reasonableness and tradeoff analyses to take into account price-but, conspicuously, none of these comparisons resulted in any of the “presumptive awardees” being displaced by a lower-priced offeror.  Indeed, GSA ultimately made awards to offerors whose prices were 59th, 60th and 61st out of the sixty-two offers-prices that the agency claims were “fair and reasonable” despite being twice as high as the lowest winning offer, as much as thirty percent higher than the independent government cost estimate, and more than two standard deviations to the mean of the evaluated prices for all the offerors.

The so-called “Alliant” GWAC is to be administered by GSA pursuant to section 5112(e) of the Clinger-Cohen Act.  Alliant is designed to provide federal agencies with a broad range of information technology (IT) products and services, including computers, ancillary equipment, software, firmware and similar applications, network design, support services, and related resources such as telecommunication and security.  Alliant contemplates the multiple-award of indefinite delivery, indefinite quantity (MA/IDIQ) contracts, with a ceiling of $50 billion, to be performed, on a task order basis, during a five-year base period and one, five-year option period.  Under the Alliant Solicitation No. TQ2006MCB0001 (the Solicitation), individual task orders could range as high as $1 billion in value; successful offerors, however, are guaranteed a minimum take of only $2,500.  Alliant offers a wide range of contract types, including fixed-price, cost reimbursement, labor-hour and time and material.

On September 26, 2007, Serco, Inc. (Serco) filed a complaint in this court challenging the award decisions and seeking a variety of injunctive relief.  Subsequently eight other unsuccessful offerors filed protests and were joined in the Serco protest. GSA issued the Solicitation on September 29, 2006. The Solicitation advised that GSA “contemplate[d making] approximately 25 to 30 awards ... but reserves the right to place fewer or more awards, depending upon the quality of the proposals received.” Those receiving awards under the Solicitation are eligible to perform task orders under the contract. The Solicitation indicated that “[a]ward will be made to responsible Offerors whose proposals are determined to provide the ‘best value’ to the Government.”

In a scholarly opinion, by Judge Francis M. Allegra, the Court concluded that GSA, “in attaching ”talismanic significance to technical calculations that suffer from false precision, made distinctions that, in their own right, likely were arbitrary, capricious and contrary to law, but certainly became so when the agency failed adequately to account for price and to make appropriate tradeoff decisions. Those compounding errors prejudiced the plaintiffs and oblige this court to set aside the awards in question and order appropriate injunctive relief.”  The Court did not agree that there was a rational basis to make distinctions between offerors on the basis of thousandths of a point. Judge Allegra ruled that “Precision of thought is not always reflected in the number of digits found to the right of a decimal point – indeed, as with other constructs, there can be, to paraphrase Holmes, a “kind of precision that obscures.”  Ultimately, Court ruled that the agency made award decisions that were “arbitrary, capricious and otherwise contrary to law.”

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

The Corps of Engineers responded to the recent Order of the United States Court of Federal Claims dated November 1, 2007, granting a permanent injunction against the issuance of a MATOC solicitation for dredging, by taking four proposed task orders included in the MATOC solicitation and reissuing them as separate negotiated procurements.  (See the article posted on November 5, 2007).  The Plaintiff, Weeks Marine, Inc., filed a motion asking the Court to find that the Corps of Engineers had violated the November 1 Order.  Weeks argued that the injunction of the MATOC solicitation was based upon a finding that there was no legal or rational basis for the Corps to employ contracting by negotiation instead of sealed bidding.  The re-issuance of those same projects as individual RFPs violated the spirit, intent, and the letter of the Court’s Order.

Weeks requested that the Court amend its November 1, 2007 Order to make it clear that the projects addressed by the task orders could only be procured by sealed bidding.   Judge Thomas C. Wheeler of the United States Court of Federal Claims responded by issuing a new Order on November 16, 2007, stating that “. . . the Court must fashion a remedy to address an agency’s conduct that the Court regards as an ‘end run’ to a judicial order and injunction.”  The Court decided to allow one of the four projects to proceed as an RFP because it involved dredging of the entrance channel to the Naval Submarine Base at Kings Bay, Georgia, and was considered to be urgent. The other three RFPs were not allowed to proceed as RFPs, however, because the agency “did not provide any legal or factual justification to use negotiated procurement methods.”  The Court was also concerned about the Corps’ unilateral decision to attempt to circumvent the earlier injunction and stated that “the prudent approach would have been for Defendant to seek relief from the injunction to issue this solicitation, rather than for the agency to decide unilaterally that the injunction did not cover the proposed action.”

In the hearing that was conducted on November 15, 2007, the Judge reiterated that “if sealed bidding is not used for dredging contracts, you may as well read FAR Part 14 right out of the regulation. I mean, when else is it going to apply if not to dredging contracts?”  The decision is a welcome recognition by the Court that sealed bidding is still the preferred method for procuring federal construction contracting, and the decision will hopefully help to stem the continuing move by the Corps of Engineers to unnecessarily employ IDIQ, MATOC, and contracting by negotiation in more of its construction procurements.

• Email This
• Print
• Comments
• Trackbacks

In a recent prebid protest presented by our firm, Payne Hackenbracht & Sullivan, the United States Court of Federal Claims considered the protest of Weeks Marine, Inc. v. The United States (“Weeks”) challenging the decision of the United States Army Corps of Engineers, South Atlantic Division (“SAD”), to solicit proposals for maintenance dredging and shore protection projects using negotiated indefinite delivery indefinite quantity (“IDIQ”) multiple-award task order contracts (“MATOC”).  The Court noted that the contemplated change to negotiated IDIQ task order contracting represented a significant departure from SAD’s prior practice of using sealed bidding, and further noted that the policy change had caused widespread industry criticism. 

As grounds for its protest, Weeks asserted that SAD’s proposed change to negotiated IDIQ/MATOC task order contracting was contrary to law, and was without any rational basis.  Weeks relied upon 10 U.S.C. § 2304(a) and Federal Acquisition Regulation (“FAR”) ¶ 6.401(a), mandating that an agency shall use sealed bidding procedures when (1) time permits, (2) awards will be made solely based on price, (3) discussions are not necessary, and (4) the agency reasonably expects to receive more than one bid. Weeks contended that each of these four conditions was met for SAD’s dredging contracts, and that no legal basis existed to use negotiation procedures.

The Corps of Engineers argued in opposition that SAD’s proposed IDIQ task order contracting was lawful, that the agency had wide discretion in selecting an appropriate procurement method, and that SAD’s justification for the change was reasonable under current circumstances.  The Court disagreed and ruled that an agency’s discretion “does not empower an agency to employ a procurement method in violation of applicable law.”  The Court ruled that SAD had not pointed to any significant changes in its procurement environment that would warrant a change to IDIQ task order contracting.  The Acquisition Plan confirmed that SAD had “excelled in program execution” during the last two years and “the Court does not see any reasons or developments for moving away from the sealed bid process.  Without any analysis of the applicable statutes and regulations, and without citing any significant reasons or developments, the Court held that SAD would violate 10 U.S.C. § 2304(a), FAR ¶ 6.401(a), FAR ¶ 14.103-1(a), and FAR ¶ 36.103(a) by employing IDIQ task order contracting methods.“

This is an important judicial opinion that will hopefully cause government agencies to revisit decisions to utilize contracting by negotiation in either single procurements or IDIQ contracting.  When the sole justification for negotiated contracting boils down to nothing more than a desire to introduce unnecessary subjectivity into the source selection process, RFPs should not be used and sealed bidding should continue to be the preferred method.  In dredging, as in many other areas of construction contracting, sealed bidding has been a successful procurement method for many years.  It is a system that provides the greatest risk coupled with the greatest opportunity for reward and it is an integral part of the free enterprise system.

Of great concern to the Court was the fact that under SAD’s “new” procurement method approximately $2 billion in task order awards during the next five years would become virtually immune from any judicial or administrative bid protest review.  The Federal Acquisition Streamlining Act of 1994 (“FASA”) provides that “[a] protest is not authorized in connection with the issuance of a task order or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.”  While SAD’s current sealed bid awards routinely are subject to bid protest review by the Government Accountability Office (“GAO”) or the Court, SAD’s task order awards would be insulated from review except in very limited circumstances.  Thus, while purporting to use highly discretionary “best value” evaluation procedures in awarding task orders, SAD effectively would remove itself from any bid protest oversight.   Although the Corps argued that the Court must apply the FASA provision that Congress created, the Court ruled that this provision did not authorize SAD to convert all of its procurements into task orders.

In asserting a need for a change from sealed bidding to contracting by negotiation, the Corps contradicted its own position by stating that its sealed bid approach had “excelled in program execution” during the last two years.  As a result, the Court concluded that “The agency has provided no evidence that the current system is failing or in need of revision.  In fact, the Court would be hard-pressed to identify any contracts better suited to sealed bid procurement than dredging.  If not appropriate for dredging work, it is difficult to imagine when sealed bidding ought to be used.” (Emphasis added).

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

In a decision issued on April 20, 2007, but published today because of a protective order, the GAO denied a protest by Olympus Building Services, Inc., B-296741.14; B-296741.15 against the award of a contract to Rowe Contracting Services, Inc., issued by the Defense Intelligence Agency (DIA) for janitorial services at the DIA Analysis Center. Olympus challenged the proposal evaluation and best value determination.

Among other things, Olympus asserted that Rowe’s proposal should not have been rated excellent under the technical factors because it did not include a required security awareness plan.  In this regard, in evaluating Rowe’s initial proposal, the Technical Evaluation Board (TEB) noted that Rowe had not provided a security awareness plan; the agency pointed this out to Rowe as a weakness during discussions.  In response, in its final proposal revision (FPR), Rowe provided a security awareness plan comprised of a short statement explaining, among other things, that Rowe was familiar with current Defense Security Services and DIA Regulations and security manuals, and stating that Rowe would comply with all DIA security policies. The FPR also included copies of several documents, including an Annual Security Awareness Briefing, a Refresher Security Briefing, and a Security Awareness Bulletin (self inspection handbook for contractors). The TEB determined that this information was sufficient to respond to its original concern.  Olympus argued that the information should not have been deemed sufficient because it did not include a narrative explaining how each of the included documents would be utilized during performance.

The GAO concluded that the RFP did not require that the security awareness plan be presented in any particular format or include any particular information; thus, the fact that the plan could have included additional information did not require the agency to find it deficient.  “The plan Rowe presented included information addressing security awareness and, given the absence from the RFP of detailed informational requirements, we think the agency reasonably could determine that this information was sufficient to address its concerns. Olympus’s disagreement with the agency’s conclusion is not sufficient to establish that the evaluation is unreasonable.”

While the outcome of the protest might have been the same for other reasons, we find it to be somewhat inconsistent, based on prior GAO decisions, for the GAO to take the position that instead of providing a security awareness plan, it was sufficient for Rowe to simply furnish a “short statement” explaining that it was familiar with DIA security policies.  A “plan” is usually required to enable a TEB to be certain that an offeror has thought out the implementation of agency policy.  The GAO has frequently found that the mere recitation of compliance with an RFP requirement is not sufficient to demonstrate compliance.  The fact that the TEB was willing to accept a “short statement” instead of a security awareness plan should not have endorsed by the GAO.

• Email This
• Print
• Comments
• Trackbacks

In a decision issued by the Government Accountability Office, S4, Inc., B-299817, August 23, 2007, the disappointed offer protested an award to Croop-LaFrance, Inc., a lower priced offeror, under a Request for Proposals (“RFP”) to procure information technology desktop information services. The RFP specified that award would be based on a “technically acceptable-risk/past performance/price tradeoff,” which the RFP explained as follows:

For those Offerors who are determined to be technically acceptable, tradeoffs will be made between proposal risk, past performance and price. Proposal risk and past performance are of equal importance, and when combined, are considered significantly more important than price.

The agency determined that the ratings of past performance of S4, Inc. and Croop-LaFrance were essentially equal and that it was therefore appropriate that price should be the discriminator in making the source selection.  S4 contended that the agency should have drawn more detailed distinctions in the past performance evaluations and that the agency improperly ignored significant distinctions. This sort of protest is very difficult to win because it calls upon the GAO to substitute its discretion for that of the agency – something that the GAO has consistently refused to do, except where there is no rational basis or the agency’s source selection, or procurements laws or regulations have been clearly violated.

Predictably, the GAO stated that “Determining the relative merits of an offeror’s past performance information is primarily a matter within the contracting agency’s discretion; we will examine an agency’s evaluation only to ensure that it was reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations.” Here, the RFP did not commit the Air Force to evaluating past performance only in the more selective manner that S4 desires.  Rather, based on the GAO’s review of the record, the finding was made that the Air Force’s approach was consistent with the RFP, and that the overall rating of Croop-LaFrance as “high confidence” under the past performance factor was reasonable.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

A client new to Federal contracting was requested recently to submit a "BAFO" by an agency contract specialist. Our client asked what was meant by a "BAFO," and the government representative responded "your best and final offer," and suggested that our client read the Federal Acquisition Regulation (FAR). When our client could not find any reference to a "BAFO" or a "best and final offer" our "baffled" client called us. "Best and Final Offer," or "BAFO" was a term used in the FAR many years ago, before the major revision to Part 15, "Contracting by Negotiation," in 1997. In a negotiated procurement, following the conclusion of discussions with offerors, the contracting officer would issue a request for best and final offers to all offerors still within the competitive range. The pre-1997 FAR contained an entire section that described the "best and final" process. In Federal procurement today, “BAFO” has been replaced by "final proposal revision," as referenced in FAR 15.307. However, some agencies still refer to an “FPR” as a “BAFO.”

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

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.”

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

The cover story, “New Marching Orders,” in the most recent edition of Constructor, published by McGraw-Hill Construction, highlights a trend in military construction that should concern small to mid-size general contractors.  In the past, many projects for construction of military housing and other facilities were procured as individual contracts through sealed bid solicitations issued by the U.S. Army Corps of Engineers.  Small and mid-size contractors, familiar with the local market conditions, were well positioned to compete for, win, and perform these contracts.  E. Michael Powers reports that today, however, the Corps is focusing its procurement efforts on multiple-award construction contracts and indefinite delivery/indefinite quantity contracts with task orders.  These contracts tend to be for greater volumes of work, resulting in contracts that exceed the bonding capacity of many small to mid-size firms.

Powers also notes that a contract to build fifty buildings at a cost of $10 million per building, spread across a large geographic area, might not even appeal to firms that have the bonding capacity to bid on such a large contract.  In addition, where so much work is included in one contract, there is only one prime contractor, whereas before there could have been as many as fifty contractors performing fifty separate projects.

These large procurements are often the subject of negotiated procedures under FAR, Part 15, where price is no longer the controlling factor in determining who receives the contract.  In these "best value" procurements, the experience and past performance of a larger contractor may be decisive in the Corps' award decision.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

In yet another example of one of my long-standing complaints about the GAO’s interpretation of the “Procurement by Negotiation” process specified in FAR, Part 15, the GAO has reiterated its long-standing policy that “there is generally no obligation that a contracting agency conduct discussions where the RFP specifically instructed offerors of the agency’s intent to award a contract on the basis of initial proposals without conducting discussions.   In a decision issued today, in the Matter of Gemmo-CCC, B-297447.2, December 13, 2006, the GAO ruled that a protest that the agency should have engaged in clarifications with the protester to resolve material omissions in its proposal must be denied since any such exchange would have constituted discussions, not clarifications, and an agency generally has no obligation to hold discussions where it put offerors on notice of its intent to make award on the basis of initial proposals.

The protester’s offer was not considered for award because the agency believed that important vendor data had been omitted from the proposal. The protester argued that since its price was substantially lower than the awardee’s price, the agency should have informed it if it believed that vendor product data had been omitted and should have allowed the protester to cure the alleged defect.  The GAO disagreed and stated that “contrary to the protester’s assertion that the agency was required to hold discussions before making award in light of the protester’s lower price, an agency is not precluded from awarding on the basis of initial proposals basis merely because an unacceptable lower-priced offer might be made acceptable through discussions.”  In other words, an agency has no obligation to negotiate a negotiated proposal, even if such negotiations (discussions) might result in an unacceptable low bid being made acceptable. From a taxpayers perspective, that policy does not make sense.

• Email This
• Print
• Comments (1)
• Trackbacks

“Discussions” in a negotiated procurement between the government and an offeror are the exception, not the norm, as those of you who have submitted a response to a Request for Proposals know.  Too often the government awards a contract on the basis of the initial proposal, without any discussions or negotiations with the offerors.  The reason that the government refrains from formally opening up negotiations is that if discussions occur between the government and one offeror, then the government must hold discussions with all of the offerors in the competitive range.  (FAR 15.306(d)(1).  That can be time consuming.  (It can be argued that the term “Procurement by Negotiation,” as explained in FAR, Part 15, anticipates that discussions and negotiations will actually occur). 

            Of course, not all communications between the government and an offeror constitute “discussions.”   As the Government Accountability Office stated in a recent case, Overlook Systems Technologies, Inc., Nov 28, 2006, “the acid test is whether an offeror has been afforded an opportunity to revise or modify its proposal.” In Overlook, the contracting officer contacted the successful offeror regarding a perceived organizational conflict of interest because Overlook planned to use a subcontractor that had provided a system to the government that Overlook would now “troubleshoot.”  The GAO determined that the contracting officer’s communications with Overlook were similar to the sort of inquiries the government frequently makes to perform a responsibility determination.  The GAO relied heavily on the fact that the government was required to make such a responsibility determination, citing prior GAO decisions that have held that responsibility inquiries are not “discussions.”

           

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

This article describes a GAO decision that highlights how difficult it is to prevail on a protest that challenges an agency’s rating of a proposal where the protest is not supported by anything more than a difference of opinion as to how much weight, or what score, should be assigned to a particular evaluation factor. Absent a showing that there was no rational basis for an agency’s evaluation, contractors should not expect the GAO to overturn an evaluation.

The GAO published a decision today that was originally issued on July 19, 2006, but delayed in being made public because of the need for redactions.  The case involved a protest by East-West Industries, Inc. against the award of a contract to Regent Manufacturing, Inc.   The solicitation was issued under request for proposals (RFP) No. FA8518-04-R-70801, advertised by the Department of the Air Force for multi-aircraft canopy cranes (MACC). East-West challenged the past performance and risk evaluations of its and Regent’s proposals. The protest was denied.

In its decision, East-West Industries, Inc. , B-297391.2; B-297391.3, the GAO stated that in reviewing a protest of an agency’s proposal evaluation, “our review is confined to determining whether the evaluation was reasonable and consistent with the terms of the solicitation and applicable statutes and regulations.” The GAO found that the evaluation of protester’s proposal under the past performance evaluation factor was unobjectionable where the agency reasonably concluded that only one of four prior contracts was of a magnitude and complexity essentially the same as the solicitation’s, and thus met the solicitation’s definition of very relevant. Since only one contract was rated very relevant and the protester received exceptional performance ratings under only two of its three relevant contracts, the GAO determined that the agency reasonably concluded that East-West’s performance record warranted assigning the firm a very good/significant confidence rating based on there being little doubt--rather than no doubt--as to its successful performance.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

The Navy recently awarded three cost-plus-award-fee, indefinite-delivery/indefinite-quantity (ID/IQ) contracts to Fluor International, Inc., URS-IAP, LLC (a joint venture of URS Corporation and IAP Worldwide Services, Inc.) and Atlantic Contingency Constructors, LLC (a limited liability company managed by The Shaw Group) for global contingency construction. Each contract was for a base year with four one year options, and the value of each contract was approximately one billion dollars. The contractors were to provide construction and related engineering services in response to war fighting needs, global natural disasters, and humanitarian assistance.

The awards were made following a "best value" evaluation based on experience, past performance, contingency planning, management, small business utilization, and cost. Non-cost factors were considered more important than cost. A disappointed offeror, Kellogg Brown & Root Services, Inc. (“KBR”), filed a GAO protest asserting that the Navy misevaluated the proposals under technical and cost factors. The GAO agreed and issued a decision sustaining the protest.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

A GAO decision released today, but dated November 15, 2006, reported that Advanced Federal Services Corp. protested the award of a contract to Eastek, Inc. under request for proposals (RFP) No. W9128Z-06-R-0001, issued by the Department of the Army Communications-Electronics Life Cycle Management Command for business administrative support services (BASS).  The protester contended that the agency unreasonably evaluated offerors’ technical proposals and past performance and made an improper source selection decision.  The protest was denied.

The GAO stated that in reviewing a procuring agency’s evaluation of an offeror’s technical proposal, “our Office’s role is limited to ensuring that the evaluation was reasonable and consistent with the terms of the solicitation and applicable statutes and regulations. As with any evaluation review, our chief concern is whether the record supports the agency’s conclusions To the extent a protester disagrees with an agency’s evaluation, such mere disagreement does not render an evaluation unreasonable; our Office will not question an agency’s evaluation judgments absent evidence that its judgments were unreasonable or contrary to the stated evaluation criteria.”

In other words, contractors who want to challenge the government’s evaluation of an offer submitted in response to a Request for Proposals (RFP) should understand that the GAO gives great latitude to federal agencies. The GAO will almost always yield to the discretion of the source selection official unless the protester can provide evidence that there was not a rational basis for the evaluation.   See Advanced Federal Services Corp., B-298662, November 15, 2006.

• Email This
• Print
• Comments
• Trackbacks

The GAO published a decision today in the Matter of SunEdison, LLC, B-298583; B-298583.2, dated October 30, 2006, involving SunEdison’s protest of an award to PowerLight Corporation under request for proposals (RFP) No. FA4861-06-R-B501, issued by the Department of the Air Force for the construction and operation of a photovoltaic array to supply solar power to Nellis Air Force Base (AFB) in Nevada. The protester contended that the agency’s evaluation of offerors’ prices was flawed and the GAO sustained the protest. 

The protester argued that the agency’s evaluation of the offerors’ prices was flawed in that it failed to take into consideration that PowerLight’s price was offered contingent upon “successful completion of an REC purchase agreement with Nevada Power,” whereas its own price was offered on an unconditional basis.  The GAO agreed that the agency’s price evaluation was flawed and found hat PowerLight’s inclusion of a contingency in its pricing rendered the proposal ineligible for award.  Where a solicitation requests offers on a fixed-price basis, an offer that is conditional and not firm cannot be considered for award.  Omega World Travel, Inc.; Sato/Travel, Inc., B-288861.5 et al., Aug. 21, 2002, 2002 CPD para. 149 at 6.  Here, not only did PowerLight make its offer conditional upon successful completion of an REC purchase agreement, but further, it acknowledged the uncertainty of such an agreement being reached.

Government contractors need to keep in mind, when responding to a sealed bid invitation or to a request for proposals, that conditional pricing is an almost certain way to have your bid, or offer, rejected.  Of course, this procurement seems to have been yet another of those all too frequent “negotiated” procurements were actual discussions, or negotiations, did not occur. The Contracting Officer simply furnished each of the offerors with “evaluation notices” describing required information that had not been fully addressed in the proposal or that required clarification.  Apparently the uncertainty in PowerLight’s proposal was not addressed, and there were no discussions during which additional issues could have been raised. (Unlike sealed bidding, where a bid cannot be revised after bid opening, offers submitted in response to a Request for Proposals can be revised after offers are submitted if the government conducts discussions, or negotiations, and gives the offerors in the competitive range an opportunity to submit best and final offers. The regulations regarding Contracting by Negotiation are found in FAR, Part 15).

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

The GAO issued a decision today reiterating a familiar theme: Where a protester’s proposal failed to provide information specifically requested by the solicitation and necessary for evaluation purposes, the agency’s evaluation of the proposal as “poor” was reasonable.

The solicitation required the submission of a proposal with sections addressing the offeror’s past performance, technical approach, staffing, and management approach, and supplied instructions as to what proposals were to address in relation to each of the RFP’s evaluation factors. Because the agency’s evaluation was dependent upon information furnished in the proposal, it was the offeror’s obligation to submit an adequately written proposal for the agency to evaluate. The protester simply failed to do so. Therefore, the agency’s evaluation of the proposal, and determination to not award a contract under this solicitation to the protester, was consistent with the terms of the solicitation and was reasonably based. See Matter of Phyllis M. Chestang, B-298394.3, November 20, 2006.

All government contractors should be aware that federal agencies have a great deal of discretion in determining whether a proposal is responsive to the listed evaluation factors. Before submitting a proposal, contractors should try to put themselves in the position of the government’s source selection team. Does the proposal answer the questions that the government will have about an offeror’s experience, past performance, and technical qualifications? If your proposal doesn’t seem convincing and responsive to you, the chances are that the government will not think very much of it either. In the world of negotiated procurement and proposal preparation, it is vital to be thorough, responsive, and persuasive. A contractor needs to sell the company’s capabilities and approach throughout the process.

• Email This
• Print
• Comments
• Trackbacks