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
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Congress entered into its spring recess on April 7 having delivered regulatory reforms to President Trump's desk. In the first 75 days of the Trump administration, legislators approved 13 Congressional Review Act resolutions, with President Trump signing 11 thus far.
If your company was one of the 375 government contractors or subcontractors who recently received a Scheduling Letter from the Office of Federal Contractor Compliance Programs, you're probably not reading this post.
The U.S. Court of Federal Claims recently issued a decision arising from work at an Oklahoma dam that contains two holdings on Type I differing site condition claims helpful for contractors asserting such claims.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).