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.
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