Government contractors responding to RFPs understand the need to read the fine print.
Mostly commonly, we discuss this topic in terms of pure proposal acceptability. Protest decisions from the GAO and Court of Federal Claims make it abundantly clear that the burden falls on the contractor to follow directions and include all of the required information in all of the right places. It is for that reason (among others) that we always recommend having an outsider (be it a consultant, a lawyer, or even just another person from your company not involved in preparing the proposal) do a quality check before a proposal is submitted.
A more nuanced issue – but just as important – is understanding the RFP's evaluation scheme. That is, not only what information must be submitted, but how that information will be weighed and measured by the Agency.
For example, in the past, we've looked at low-price technically acceptable (LPTA) RFPs. The basic idea on an LPTA procurement is that a contractor need only achieve a minimum passing score on its technical proposal – the Agency will not give bonus points for added bells and whistles. The much more important part of an LPTA proposal is price. Among those offerors found to be technically acceptable, the award goes to the offeror with the lowest submitted price. So, the focus on an LPTA proposal should be on getting lean (while maintaining technical acceptability) so that you can get as low as possible (or practical) on price.
But what about Best Value RFPs? There, the game changes dramatically. The Agency is not looking just at technical ability or price – but how the two interact in order to maximize the benefit to the government. The award may be made to a higher-priced offeror, but only if that higher price is justified by a proper tradeoff analysis. Stated differently, is the contractor's higher price justified by greater technical skill?
Here is a nice, short summary from a recent GAO decision outlining government's rights and responsibilities under a Best Value RFP:
[Agencies] have discretion to make award to a concern that has submitted a higher-priced, technically superior offer. An agency's decision is governed only by the test of rationality and consistency with the solicitation's stated evaluation criteria. Source selection decisions must be documented, and must include the rationale for any business judgments and tradeoffs made or relied upon by the source selection authority, but there is no need for extensive documentation of every consideration factored into a tradeoff decision. Rather, the documentation need only be sufficient to establish that the agency was aware of the relative merits and costs of the competing proposals and that the source selection was reasonably based.
So, what is the BEST approach for Best Value competitions?
Maximize Technical Skill. Unlike LPTA (where the proverbial C- or D+ proposal could get the award), the key is to go for the A+. Play to your strengths and show the Agency that your firm is not only capable – but highly skilled and able to deliver the best service.
In maximizing technical skill, you'll look to add those bells and whistles that show off your firm's capabilities. But remember, this isn't just a talent show.
Keep Price in Mind. This is where things start to get tricky. While you'll want to maximize technical skill and performance, price must always be a touchstone. In order to accept a higher price, the Agency must be able to document (as part of its Best Value Tradeoff Analysis) that the higher price is justified by demonstrated technical superiority.
The Best Value combination of technical aptitude and price is particularly important for contracts involving complex, multi-disciplinary services because it gives the government the option of accepting a higher price in exchange for better odds of successful future performance. But what if the Agency gets the formula wrong? Fortunately, the GAO and Court of Federal Claims have recognized a number of avenues for challenging the Agency's Best Value Trade Off.
Protesting Best Value Awards. Bid protests of Best Value award decisions generally fall into one of two buckets: (1) The Agency overvalued the technical aspects of the awardee's proposal (when a lower-priced offeror that believes that it is on par with the technical skill of the offeror) or (2) The Agency failed to recognize the technical superiority of a proposal (when a higher-priced offeror loses out to a lower-priced and allegedly less skilled awardee).
When properly supported, these allegations will put the Agency's Best Value Tradeoff Decision under the microscope and open the door for the more skilled and/or lower-priced protester to make its case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.