• LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411

Bid Protest Weekly
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us

Top 3 Technical Evaluation Factors that Lead to a Bid Protest and How to Avoid Them

  • By GCPC GovCon Legal Team
  • March 9, 2018
  • Bidding Best Practices
  • 0 Comments
Top 3 Technical Evaluation Factors that Lead to a Bid Protest and How to Avoid Them

You put in the hard work.  You burned the midnight oil. You made certain that you met the requirements of the solicitation.  You tracked down those resumes. You crunched the numbers, and submitted your proposal.  You celebrate with your business partners when you win the award and hold your breath.  And then, it happens.  You receive notice another bidder is protesting the award.

Bidding for government contracts is never a sure thing. Opposing bidders can be unpredictable and there are agency actions over which you have no control. While you can never be certain that your bid will survive a protest, there are certain mistakes bidders make, time and time again, which have resulted in the loss of an award.

In this article, we review some GAO decisions over the past year, looking for patterns of error, or offeror missteps, so you can avoid them as you go forward.  We also offer simple solutions which could have prevented rulings of “protest sustained.”

1. Failure to Address All Terms of the Solicitation

This is perhaps the most common, and perhaps the easiest to avoid.  Recently, we discussed The Matter of CR/ZWS LLC, where the protestor objected to the winning proposal on the grounds the awardee, PBP Management failed to address the terms and requirements of the solicitation.  Specifically, CR/ZWS pointed to a requirement that offerors address five factors relevant to the contractor services plan.  PBP’s two-page proposal included only three substantive sections.  Upon review, the GAO found two of the five requirements were not addressed in any meaningful way. This resulted in a finding that PBP’s technical proposal failed to meet the minimum requirements of the solicitation, and should have been rated unacceptable.  The protest was sustained.

Practice Tip: Evaluators of proposals are human.  They are also reviewing a large amount of data for offerors.  Make it easy on evaluators (and the GAO should a protest be filed), by clearly labeling each section of the proposal’s requirements with subheadings.  This ensures that you address each requirement and ensures the agency doesn’t have to guess whether your proposal covers each of the requirements or not.

2. Failure to Comply with Other Relevant Federal Laws

The federal government has many moving parts.  It can be difficult to keep track of all requirements.  However, in this case, the whole issue could have been avoided.  Recently, we discussed a failure to comply with federal law, and how this resulted in a sustained protest.  In The Matter of Goodwill Industries of the Valleys, the General Services Administration (GSA) renegotiated a lease with WP, LLC, who owned a building which houses the Charlottesville courthouse.  Previously, cleaning services were handled by Goodwill, pursuant to the Javits-Wagner-O’Day Act (JWOD Act).  The JWOD Act is designed to provide training and employment opportunities to the blind and severely disabled.  It requires the use of identified mandatory sources for certain services, including cleaning services.

GSA bundled cleaning services into a larger building management contract.  Goodwill Services notified both the GSA and WP they were the mandatory designated source for custodial services, pursuant to the JWOD Act.  Upon request of WP, they offered a bid for services.  However, the GSA took the position they had no authority to require WP to avail themselves of Goodwill Services bid.

The decision to bundle cleaning services into a larger building management contract, in and of itself, would not have been improper.  However, GSA failed to require compliance with the JWOD Act in their contract.  This is contrary to federal law.

The JWOD Act cannot be avoided by folding the work into a subcontract.  The GAO has the jurisdiction to rule on protests related to the JWOD Act.  Beneficiaries of the JWOD Act, such as Goodwill Industries, have standing to protest an offeror’s failure to comply with the JWOD Act.  Offerors ignore federal law at their peril.

Practice Tip: Particularly where an offeror is on notice from a qualifying agency that the JWOD Act or another federal law may apply, offerors would do well to review the claim.  Consultation with an experienced government contract attorney is a small up-front investment to avoid losing a contract post award.

3. Failure to Provide Essential Information Demonstrating Compliance with Federal Law

Finally, The Matter ofL3 Unidyne, Inc, illustrates the concept of leaving nothing to assumptions.  In that protest, L3 objected to a contract award to Leidos for services related to the operation of a towed array facility.  Included in their proposal were letters of intent for key employees.  The intent letters detailed, in part, the mandate that potential employees must enter into binding arbitration as a condition of employment, should a subsequent dispute arise.  Federal law, however, prohibits arbitration agreements for conditional employees in certain circumstances.  This prohibition can only be waived if certain conditions are met.

While the agreement for arbitration was referenced, the actual arbitration agreement was not provided as part of the proposal.  As such, the agency had no way of knowing whether Leidos did or did not comply with federal law by exempting the circumstances as required by the law.  Had this information been provided, and had the arbitration agreement indeed complied with federal law by exempting the relevant circumstances, this argument would have failed.

Practice tip: Do not presume you will be given the benefit of the doubt during a protest.  If, for example, your arbitration agreement calls for conditional employees to agree to binding arbitration except where prohibited by law, make sure your employee letters of intent, and the arbitration agreement, detail that fact, and include this in your submission.

Looking for a Government Contract Attorney?

Consulting with an attorney experienced in government contracting offers peace of mind.  To talk to an attorney who specializes in bid protests, call 202.770.2939.  We offer comprehensive representation in all areas of government contracting.  Contact us today.

 

Share

Related Posts

Best Value: Making Sure Your Proposal Reflects Best Value, Not Just Lowest Price

June 21, 2018

Price Realism as the Basis for a Protest

June 21, 2018

New Procedure For Submitting Bid Protests Coming in May 2018

April 17, 2018

What You Need to Know About Past Performance before you Submit Your Bid

March 9, 2018

Leave a Reply Cancel reply

You must be logged in to post a comment.

Search Bid Protest Weekly

Need help with a bid protest?

Call us at: 703-556-0411 Or fill out this form:

Categories

  • 8(a) Sole Source Awards
  • Acknowledging Amendments
  • Adequately Written Proposal
  • Adverse Agency Action
  • Adverse Impact Analysis
  • Agency Tender
  • Alternate or Previously-Approved Product
  • Alternative Dispute Resolution
  • Ambiguity in Solicitation
  • Attorney's Fees
  • Bad Faith in Evaluation
  • Below-Cost Offer
  • Best Value
  • Beyond the Scope
  • Bias
  • Bid and Proposal Costs
  • Bid Bond
  • Bid Compliance
  • Bid Protest Decisions
  • Bid Protest Jurisdiction
  • Bid Protests
  • Bidding Best Practices
  • Blanket Purchase Agreement
  • Blanket Purchase Order
  • Blog Articles
  • Bona Fide Needs Rule
  • Brand Name or Equal
  • Broad Agency Announcement
  • Brooks Act
  • Bundling or Consolidation
  • Buy American Act
  • Cancellation of a Solicitation
  • Capability of Contractor
  • CCR Registration
  • Certificate of Competency (COC)
  • Certification Requirements
  • Changes Clause
  • Clarifications
  • Clear and Convincing Evidence
  • Clearly Meritorious Protest
  • Clerical Error
  • Commercial Item Acquisition
  • Competitive Range
  • Compliance
  • Conflict of Interest
  • Construction Design-Build
  • Construction Services
  • Contract Administration
  • Contract Modifications
  • Contracting Preference
  • Contractor Responsibility
  • Corporate Capability
  • Corrective Action
  • Cost Accounting System
  • Cost Evaluation
  • Cost Realism
  • Cost Reimbursement Contract
  • Cost-Technical Trade-Off
  • Customary Commercial Practice
  • CVE
  • DCAA Audit
  • Debriefing
  • Default Termination
  • Deficient Price Proposal
  • Delivery Order jurisdiction
  • Delivery Schedule
  • Designated Employee Agent
  • Disclosure of Price
  • Disclosure of Source Selection-Sensitive Information
  • Discussions
  • Disqualification
  • Documentation of Evaluation
  • Domestic Production Requirement
  • Education Center Articles
  • Electronic Filing
  • Evaluation Criteria
  • Evaluations
  • Events
  • Executive Order Compliance
  • Experience of Contractor
  • Experience Requirement
  • Facility Clearance
  • Fair Market Price
  • FASA
  • FedBizOpps
  • Federal Prison Industries (FPI)
  • Filing Deadlines
  • Final Evaluation
  • Final Proposal Revisions
  • Financial Responsibility
  • Fixed Price Contract
  • Former Government Employees
  • FSS Contract
  • GAO Bid Protest Review
  • GAO Jurisdiction
  • GAO Standard of Review
  • Government Contracts
  • Government Office Closings
  • Government Surplus Material
  • GSA Lease
  • HUBZone
  • ID/IQ
  • Impaired Objectivity
  • In-Sourcing
  • Incentive Fee
  • Inclement Weather Delay
  • Incomplete Proposal
  • Incorporation by Reference
  • Incumbent Capture
  • Incumbent Status
  • Independent Government Estimate (IGE)
  • Individual Environmental Report
  • Industrial Mobilization
  • Innovations
  • Interested Party
  • Invitation for Bid
  • Invited Contractor
  • Javits-Wagner-O'Day Act
  • Joint Venture
  • Key Personnel
  • Labor Hours
  • Labor Rate Pricing
  • Late Proposals
  • Late Submissions
  • Level of Effort
  • Licensing Requirements
  • Limitation on Subcontracting
  • Liquidated Damages
  • Lost Proposal
  • Lowest Price Technically Acceptable
  • Mail-Box Rule
  • Management Planning
  • Market Research
  • MAS Contracts
  • Material Misrepresentation
  • Material Solicitation Amendment
  • Material Solicitation Terms
  • Meaningful Discussions
  • Micro-Purchase Threshold
  • Minimum Requirements
  • Misleading Discussions
  • Mistake
  • Mitigation Strategy
  • Multiple Awards
  • NAICS Code
  • National Security
  • Negotiation
  • News
  • Non-Procurement Instruments
  • Novations
  • Offeror Representations
  • OMB Circular A-76
  • Option Exercise
  • Oral Presentations
  • Organizational Conflict of Interest (OCI)
  • Page Limitations
  • Past Performance
  • Past Performance Information Retrieval System (PPIRS)
  • Performance Based Standards
  • Permits and Responsibilities
  • Personal Conflicts of Interest
  • Post-Award Changes to the Contract
  • Post-Protest Re-Evaluations
  • Practicable Alternative
  • Pre-Award Protest
  • Pre-award vs. Post-award Requirements
  • Pre-Qualification of Offerors
  • Pre-Solicitation Notice
  • Prejudice
  • Price Calculation Error
  • Price Calculation Error
  • Price Evaluation
  • Price of FSS Task Order Quote
  • Price Realism
  • Price Reasonableness
  • Price Reduction
  • Procurement Announcement
  • Procurement Integrity
  • Product Testing
  • Proposal Acceptance Period
  • Proposal Detail
  • Proposal Evaluation
  • Proposal Extension
  • Proposal Standards
  • Proposals
  • Protest Terms of Solicitation
  • Protester Comments
  • Public-Private Competition
  • Randolph-Sheppard Act (RSA)
  • Rate Tenders
  • Re-Certification of Size Status
  • Reconsideration
  • Reevaluation
  • Reevaluation Standards
  • Reimbursed Attorney's Fees
  • Reimbursement of Protest Costs
  • Rejection of Proposal
  • Relaxation or Waiver of Requirement
  • Relevancy of Past Performance
  • Reliance on the Proposal
  • Remedies
  • Requirements Contract
  • Responsibility
  • Responsiveness
  • Restricted Competition
  • Resumes
  • Revision of Proposal
  • Revision of Proposals
  • Risk
  • Rule of Two
  • SBA Status protest
  • Scope of GAO Review
  • SDVOSB Set-Asides
  • Significant Issue Exception
  • Simplified Acquisition Procedures
  • Site Visit
  • Size Determination
  • Size Protest
  • Small Business Innovation Research (SBIR) Program
  • Small Business Set-Asides
  • Small Business Subcontracting Goals
  • Sole-Source Award
  • Solicitation Amendment
  • Solicitation Requirements
  • Source Approval
  • Source Selection Authority
  • Source Selection Decision
  • Source Selection Plan
  • Sources Sought Notice
  • Staffing Plan
  • State and Local Requirements
  • Status of Forces Agreement (SOFA)
  • Subcontract Protest
  • Subcontractor Experience
  • Suspension and Debarment
  • Taking Exception to RFP Requirements
  • Task Orders
  • Teaming Agreement
  • Technical Acceptability
  • Technical Evaluation
  • Technical Evaluation
  • Termination of Award
  • Terms of the Solicitation
  • Timeliness of Protest
  • Timely Filing
  • Timely Performance
  • Timely Proposal Submission
  • Trade Agreement Act
  • Unbalanced Pricing
  • Unduly Restrictive Terms
  • Unequal Access to Information
  • Unequal Treatment of Offerors
  • Uniform Time Act of 1996
  • Unstated Evaluation Criteria
  • Unusual and Compelling Urgency
  • Use of Appropriated Funds
  • Veterans First
  • VIP Database
  • VOSB Set Asides
  • Wage Determination

Get Help


Talk to an
attorney who
specializes
in bid protests:

+1-703-556-0411
Email

Keep up to date
on bid protest
decisions and
policies:

© 2023 Bid Protest Weekly

  • LinkedIn
  • Google +
  • Twitter
  • Facebook
  • Home
  • Bid Protest Ed Center
  • Blog
  • Topics
  • About Us
  • Contact Us
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us
  • LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411