Submitting the winning bid is an exhilarating feeling, dimmed only by the following days, as the offeror waits to hear if others may file a protest.  Once a protest is filed, offerors options are limited. One option that is available to offerors, but often ignored is the right to hire qualified counsel to represent their interests.  Government contract attorneys are in a unique position, in that, while they are ethically obligated to protect their client’s interests, they are prohibited from discussing certain information with their clients.  This frustrates offerors, and limits an attorney’s opportunities to provide valuable information about how things might have been different, had the offeror only done something different.

In this article, we seek to proactively address some factors we have seen which have tipped the scales either for or against an offeror in past protests.  We also seek to offer some hands on, practical solutions which can make your bid more likely to survive a protest.  You can’t control what the agency does during a protest, but you can ensure your proposal will be reviewed in the best possible light by addressing the issues discussed below.

1.   Seek Clarification

If you are confused about a term or condition of the solicitation, seek clarification.  Just guessing about what the agency wants does not serve you.  Seeking clarification allows you to address each requirement fully and head on.  In most cases, failure to understand a requirement will lead to a failure to address all issues an agency has in mind when issuing a request for proposals (RFP).  Remember, the agency’s evaluation, and the review during any subsequent protest, will focus on whether the bid met the terms of the solicitation.  Thus, understanding the terms of the solicitation is critical to creating a successful offer that survives a protest.

2.   Provide a Detailed Road Map

All too often, we hear our clients exclaim, “But I did address all five factors in my proposal!” In these situations, a review of the proposal reveals a single paragraph with an umbrella heading.  If there are five factors you must address, give each factor its own heading and discussion.  If you only have one or two sentences for each factor, consider a bullet list, like this:

• Factor One: Our company provides detailed Factor One services. We began offering Factor One services in 1977, and have employees well versed in Factor One issues.
• Factor Two: The education levels required by Factor Two are met for each key personnel position. Our top three proposed personnel have the requisite Ph.D’s, and our five managerial positions will be filled with key personnel with master’s degrees (or better), as required.
• Et cetera, et cetera.

Remember that there are often a large number of bids are submitted for each solicitation, and evaluators have a large amount of information to review in each proposal.  Make it easy for them to locate evaluation factors, and make sure their evaluation is easy to defend, by clearly establishing that you have met the solicitation requirements.

3.   Cross Reference Costs

You’d be surprised how often the figures listed in the proposal’s written summary, and the figures listed in the line by line budget disagree.  Perhaps the evaluator won’t notice the inconsistencies, but you can bet an attorney filing a protest will be looking for just such a discrepancy.  This is an easy thing to check before submitting your proposal.  Don’t give the government, or a protester, the opportunity to challenge your winning bid based on a simple, easily correctable oversight. Always double-check your numbers and eliminate this grounds for a protest from your proposals.

4.   Cross Reference FTEs

While you are cross referencing dollar amounts, take time to cross reference any and all references to full time equivalents (FTEs).  Once again, the number of times the proposal and the budget are inconsistent in regards to FTEs is appalling. Take the time to make sure your numbers add up.  Proposals that suggest 15 FTEs are needed, but only budget for 12, may fail during a protest.  Because different sections may be evaluated by different people or different teams, and often evaluated at different times, these inconsistencies may be missed during the evaluation process.  (Imagine reviewing 12 proposals for technical acceptability, then evaluating the budgets of those same 12 proposals.)  These inconsistencies between your winning bid, and that of a disappointed offeror, however, are less likely to be missed.

5.   Make Sure Your Proposal Establishes that You Meet the Requirements

Do not presume the evaluator “knows” you meet the requirements.  A simple assertion you meet the requirements is unlikely to be considered sufficient during a protest.  In fact, simply repeating the language of the RFP has specifically been found to fail as proof of competence or compliance.  Make sure each requirement of the RFP is addressed in your proposal.

Bonus Tip: Don’t Face a Bid Protest Alone!

If you are facing a bid protest, don’t do it alone.  While you are, technically, allowed to represent yourself, our experience indicates that self-representation is not a good idea.  A qualified attorney experienced in government contract law can provide the support you need during a protest. You can bet that a protester will have an attorney on their side. If you are facing a protest, contact us for a consultation today.