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Pre and Post Award Bid Protest

Unclear Request for Proposal Leads to Bid Protest

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A Request for Proposal (RFP) is a document the government (and commercial companies) uses when soliciting responses from contractors on a particular government requirement. The document lists all the criteria and needs of a project. FAR15.203 details the minimum requirements an RFP must contain. According to FAR15.203, an RFP must contain the Government requirement, anticipated terms and conditions that apply to the contract, information required to be in a proposal, and factors and significant subfactors used to evaluate the proposals. To obtain the best possible proposals, it is important the RFP be clear and concise. The RFP can be protested if the wording is ambiguous or unfair. Innovate Now, LLC (Innovate) protested The Department of the Air Force’s (Air Force) RFP and we discuss the results of that protest below.

Bid Protest of Innovate Now, LLC. B-419546
Decision issued April 26, 2021

THE SOLICITATION 

The Air Force published an RFP for engineering, professional and administrative support services for the Air Force Material Command headquarters at Wright-Patterson Air Force Base, Ohio. The RFP was for a cost-plus-fixed-fee task order for a base year and four one-year options using a unique source selection method the Air Force called “the highest two technically capable offerors with realistic, balanced and reasonable pricing source selection methodology.” The task order was issued under the General Services Administration’s One Acquisition Solution for Integrated Services small business multiple-award indefinite-delivery, indefinite-quantity contract program. The estimated value of the task order was more than $50 million. Since the contract exceeded $10 million, the Government Accountability Office (GAO) had jurisdiction over any protests.

THE PROTEST

Innovate filed a bid protest against the agency with the GAO for two main issues. First, the RFP required the members of a mentor-protégé joint venture to have the same level of experience as other offerors. Secondly, the defective RFP required all offerors to demonstrate the ability to adequately staff on prior contracts through submitted work samples. It also required offerors to demonstrate the “position count” on prior contracts reflected the number of personnel working at “a single point in time”. However, the solicitation did not define a “single point in time”.

THE OUTCOME

“Same Level of Experience” Requirement

Innovate argued the RFP violated the Small Business Association’s (SBA) regulations by requiring the protégé member of any mentor-protégé joint venture offeror to meet the same experience requirements as all other offerors. The SBA regulation 13 CFR §125.8(e) expressly states: “a procuring activity may not require the protégé firm to individually meet same evaluation or responsibility criteria is that stated above other offerors generally. The partners to the joint-venture in the aggregate must demonstrate the past performance, experience, business systems, and certifications necessary to perform the contract.”

The GAO agreed with Innovate and ruled the RFP violated the SBA regulations. The GAO stated its conclusion was reinforced by comments the SBA made when it published the regulation. Those comments included: “however, it is unreasonable to require the protégé concern itself to have the same level of past performance and experience (either in dollar value or number of previous contracts performed, years of performance, or otherwise) as its large business Mentor. The reason that any small business joint venturers with another business entity… Is because it cannot meet all performance requirements by itself and seeks to gain experience through the help of its joint venture partner.”

“Single Point in Time” Requirement

Additionally, Innovate protested the RFP’s requirement regarding the offeror’s ability to adequately staff prior contracts, specifically RFP’s use of the term “single point in time”. In response to the protest, the agency did not clarify the phrase “a single point in time” except to assert the phrase was commonly understood. The agency also pointed the GAO to the definition of the word “point” found in the Merriam-Webster dictionary. The contracting officer further argued the requirement was necessary to ensure the offeror could hire a specific number of employees with demonstrated capability to perform the required task at the same time without significant turnover or vacancies in the required positions and to assess the offeror’s ability to hire and retain a qualified and stable workforce.

The GAO found the agency’s explanations unavailing. The GAO agreed the term “a single point in time” is ambiguous and does not allow offerors to compete intelligently and on a relatively equal and common basis. The GAO ruled “agencies are required to draft solicitations in a manner that enables offerors to compete intelligently and are relatively equal and common basis.”

“Cost-Reimbursement Type Work Samples” Requirement

Finally, Innovate protested the RFP’s requirement that each member of the joint-venture submit at least one work sample that had been performed on a cost-reimbursement basis. Innovate took exception to this requirement arguing it was unduly restrictive because “many small business offerors do not have prior contract experience performing a prime Federal Government contract on a cost-reimbursable basis”. The GAO dismissed this aspect of Innovate’s protest as premature. Instead, it recommended the agency revise the RFP’s requirements and require work samples from the mentor member of the mentor-protégé offeror.

The GAO recommended 1) “the agency amend the RFP to revise the work sample experience requirements as they relate to the protégé member of any Mentor-protégé offeror;” 2) the agency should clarify the phrase “single point in time” in a way that gave offerors a common understanding of the agency’s requirement; and 3) that the agency reimburse innovate for the cost associated with filing its protest, to include attorney’s fees.

THE TAKEAWAY

Although a company does not need to be an expert in the type of service they are requesting, it is important for the RFP to be as clear and concise as possible and not inadvertently violate any regulations. Any ambiguity or violations can be challenged by offerors, costing the company time and money. Well-written RFPs lead to good proposals from offerors, and good proposals lead to better contract outcomes.

If your government bid was evaluated unfairly due to a violation of SBA regulations, contact Whitcomb Selinsky PC.  We have a team of experienced small business government contract attorneys ready to help you.

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About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.

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