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David v. Goliath Webinar Series

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David versus goliath Video 2

Evaluation Criteria and LPTA vs. Best Value

Joe:

Okay. I expect there will be some folks that will be joining us, you know, throughout, um, the course of the webinar today. Uh, my name is Joe Whitcomb. I am the founder of Whitcomb, Selinsky, PC.

Joe:

Um, to my, I want to introduce, make some introductions first. To my far right is, uh, Dani Tarolli. Uh, she's an associate with, with the law firm. She will be moderating today.

Joe:

Uh, to my immediate right is Joel Hamner. Um, he's one of our in house, um, certified experts, uh, in the universe of government contracting.

Joe:

Um, again, I'm the founder. Um, we, Whitcomb, Selinsky, has, uh, been in the government contracting space, um, pretty heavily since at least 2013. And our focus since that time has been on socioeconomic clients, primarily in the service disabled veteran owned small business space.

Joe:

Um, and what we've done since 2013, uh, is helping with those, helping those veteran owned businesses and those women owned and small businesses, um, go, go from, you know, their very first day of getting a DUNS number, uh, all the way through, um, uh, filing contract claims and litigating contract claims for the purpose of getting paid, uh, for the, for the contracts they've already performed.

Joe:

So we, we, we really are, in the universe of government contracting, we're a full service firm. But our focus is in that socioeconomic space, and where we've learned a lot of lessons is in the SDVOSB, or service disabled veteran owned small business, uh, community. Um, many of you, I think you are in reach of our, of our emails and, and, uh, advertising are probably in that service disabled space, so that should apply to many.

Joe:

Uh, but again, a lot of the lessons that we've learned and everything we talk about today will t- will apply government contracting wide. Whether you're a small business or a large business, uh, it won't matter, because today, what we're going to be covering, um, is the second few topics of, of 10, uh, total.

Joe:

And today, we'll be talking first about the evaluation criteria i- in a request for proposals and, you know, specifically, where to look for those, what, what do they mean, um, and, and why d- and we're going to speak today about their importance.

Joe:

And then, the second piece we'll be talking about is, is the distinction between, uh, the two basic, um, big lanes of, of government contracting competition, which is either going to be the lowest price technically acceptable, known by many of you as the LPTA, um, and the second is the best value contract. Um, and we'll talk about, we'll get into the weeds on what those two mean.

Joe:

Um, again, Dani's going to be moderating. The format today will be Dani will present a question that we hope applies, that we will answer questions that apply to many of you. Um, Joel, Joel or I will pick up the answer to one of those questions. We're going to do that for approximately the first 20 minutes.

Joe:

Um, we'll try to cut off around 11:20, uh, Mountain Time, 11:22 Mountain Time. And then, we'll open up that last 10 minutes to any questions, um, that participants, you the attendees, might have.

Joe:

Uh, in addition, uh, we've got, uh, AJ in the background that's helping monitor this. If you guys have any questions or concerns, you're not able to hear us, you're not able to see us, something happens, drop a comment in the chat box, and AJ will get it over to us, and Dani will be monitoring that and sh- we'll be able to, um, you know, to get that, we'll be able to respond to that in real time.

Joe:

The last 10 minutes is where we will reserve, um, where we will answer any questions you submitted, um, along that time, as it relates to the topics we're talking about. And without, without any, um, without dragging it out [inaudible 00:03:41] any longer, I'll hand it over to Dani to present the first question.

Daniela:

Thank you, Joe. So I guess the first question will be, when you use the term evaluation criteria, what do you mean?

Joel:

Yeah. So I'll, I'll go ahead and jump on that one. So the evaluation criteria is, uh, basically, it's a list of the factors that the government states in the solicitation that it's going to use, uh, when it makes its award decision.

Joel:

Uh, usually, these are broken out in a distinct section in the solicitation, but oftentimes, we've, we've seen that actually sprinkled throughout, uh, the solicitation documentation. Uh, sometimes, uh, in the section that you often will find the evaluation criteria, it may even reference other parts of the solicitation or even the statement of work.

Joe:

And the most common way I've seen that broken down, uh, it depen- and it doesn't seem to matter very much about the [inaudible 00:04:37] that they're competing is that they'll have a technical evaluation. They'll have a price evaluation. And they'll have a past performance evaluation.

Joe:

But that, again, to Joel's point, is a 30,000 foot view. And the point of today's conversation will be getting, as you as a prospective, um, offer on one of these contracts, what exact, what kind of language you're looking for and how you want to respond.

Daniela:

So with those factors that you say that are used, what are the most common ones found in, uh, evaluation criteria?

Joe:

So I got a little ahead of myself on that question.

Joel:

(laughs)

Joe:

Um, yeah. Again, typically, and I say, you know, it's hard in the universe of government contracting to, to present a rule that applies across the board, but what you see most commonly, and understanding that we're talking specifically about responses to RFPs or res- or requests for proposals. That's [inaudible 00:05:26] request for quotes or an RFP, which you see regularly in, in construction contract, which is simply the government requesting bids.

Joe:

We're talking about, um, stuff that applies, it, it applies across the board. You may see an RFP in construction. And, and today we'll be t- and, uh, t- to answer Dani's question, you will most re- often see a technical component in which the government will want, from you, things like your approach, your technical approach. How are you going to address the contract? What are the names and qualifications of key personnel? Um, what is your management plan?

Joe:

And it is important, uh, and almost every RFP we'll read will have a, have a disclaimer in it that says, "Simply copying and pa-" This is a Joe Whitcomb paraphrase, but simply copying and pasting the requirements in your response will not do the job. So if the government says, "You need to present a management plan," it will not be sufficient for you to respond with, uh, "Our company intends to present a manag- or pretends, intends to manage this contract."

Joe:

You will need to get more specific than that, um, to, to be able to, to satisfy the government's, um, request, because understand that the people that are publishing this, the contracting officers that are typically publishing this request for proposals, will not regularly be the individuals evaluating the criteria. That will go to a source selection authority.

Joe:

And again, so that I don't run in danger of getting ahead of myself, the three areas with a technical proposal o- most often, which has those subcategories or sub backers, your pricing, which will normally be done by unit as a CLIN or, or, uh, we call it a CLIN, but a, a line item. All right? And then, the last thing will be your past performance. And again, what we'll talk about today is that every solicitation will place a different emphasis on each of those three areas.

Joel:

Yeah. Um, I would add, too, that too, Joe, oftentimes, depending on, uh, the, the services that are being purchased, you'll see various, uh, licensure or certification requirements, um, that may be listed out either as a subcomponent to your technical requirements, or it could be, uh, it, it could appear as its own separate section.

Joel:

Um, I think that the, the big takeaway for that, um, y- uh, Joe, you appropriately, I think, said, uh, "Hey, you need to usually provide more than an affirmative statement of, 'Yes. We will comply with this particular criteria.'"

Joel:

However, uh, I think on the other side, too, I mean, th- th- the number one thing, uh, that contractors need to keep in mind when responding to these is to address every element in the evaluation criteria.

Joe:

Right.

Joel:

And so to the extent that, um, you want to go line by line through those evaluation criteria that are listed out, um, that, that's a phenomenal way to make sure you address everything. Um, oftentimes, though, uh, yeah, it just requires, uh, more than an affirmative statement, uh, to that point.

Joel:

Uh, and again, I'll, I'll, I guess I'll underscore that with an example. Um, and, and Joe, you're f- you're familiar with this particular case. We recently had, um, we handled a protest for an incumbent contractor. Uh, relatively straightforward service contract.

Joel:

Uh, one of the requirements that was listed, uh, and this was a, a single requirement under a subcomponent of, I believe it was their technical, uh, s- category, uh, i- is that they needed to not only list each of the k- key personnel, but they needed to include a chart.

Joel:

And so, uh, you know, our, our client included a chart, and they made that chart, and they listed everyone by name. Well, one of these individuals ch- was dual hatted, right? They filled two different roles, uh, related to this contract. And they listed in their chart only one of the titles, right, instead of both titles.

Joel:

And, uh, I will say that, uh, that issue, um, w- we ultimately were able to secure a successful outcome in the protest. However, um, we were unable to, uh, to, to receive our fees related to that protest because of, uh, that particular issue.

Joel:

And so when it comes to being so detail specific as make sure that every title of every person is listed on your chart, um, you know, uh, to me, that, that really just kind of underscores this idea that, that when you are working your way through, uh, developing a, a comprehensive response to a solicitation, um, you really do need to be careful to, to address every single element. Uh, but of course, yeah, to your point earlier, Joe, that doesn't necessarily mean, uh, a simple affirmative statement will do.

Joe:

A- And I always like to caution clients that we're working with, you know, keep an eye out for that foot stomping, right, where the government will, will have regularly, and the, um, the example that I'm thinking about, one I read recently that said that the government put a s- a, a specific disclaimer in there as it related to past performance that said short or, you know, inefficient a- insufficient answers, and I'm paraphrasing again, just, just won't do.

Joe:

When you see language like that, when you see language about shall or must, obviously, pay super close attention to that, uh, language, because that, there, there, sometimes the solicitation will include language that says, "If to, if offers don't speak to this point, they won't be considered. They won't make it to the next round." So pay close attention to that.

Joe:

The other thing is, if it, and Joel might have gotten to this eventually, but, um, th- there will b- regularly be a page limit. So you have to both be thorough and concise. But if the page limit is 30 pages, um, remember that you're not going to get any pa- [inaudible 00:11:22] for coming in at 25. If it's 30 pages and you have something to say for 30 pages, use that. Use that page limit.

Joel:

Yeah. And, and maybe part of the way... I mean, uh, that sounds like very kind of generic advice, right? (laughs) Be, be thorough and, and hit your page limit. Uh, okay. Great. Thanks.

Joel:

Um, I, I think that one of the ways that, that you can help to narrow your focus, uh, when you are working through your actual proposal material is through, uh, um, liberal use of the Q and A process. Right?

Joel:

And so if there are ambiguities, certainly as it relates to the evaluation criteria, uh, seek to clarify those. Seek to, to, um, ask questions that would really refine, uh, your understanding of what the government is asking for.

Daniela:

So understanding that you need to be thorough in your proposal process, how would you say that the government goes about treating and evaluating technical and past performances?

Joe:

So I'll, I'll, I'll pick up the, the technical piece, and then Joel, if you want to [inaudible 00:12:27] past performance. The, the technical piece, what the, what the f- FAR essentially requires happens is th- is that the contracting office put together a source selection authority, um, that their job is to then evaluate all the proposals.

Joe:

A perfect RFP, which I have not seen, um, w- is it would include a rubric, which would mean the government would announce to you as the offers the amount of emphasis it intended to place on which portion. The one that I was studying to prepare for this, uh, webinar, it stated that all three would be treated equally, right? If it's technical, it would be treated the same as past performance, and which would be treated the same as price.

Joe:

Um, you will read other, um, solicitations that will say that price is the primary driver, or technical is the primary driver, and that past performance is neutral. So it'll be super important for you to look at that.

Joe:

But understand that there should be a source selection authority that are s- either self described or the agency has described them as subject matter experts, that are supposed to be evaluating, for example, your technical approach. Um, it may be engineers or architects in the universe of, of, of, uh, construction or, or design build, or it could be manufac- you know, folks who have that background are supposed to be determining whether your technical approach is the right approach or the approach the government wants to see you take.

Joe:

Um, again, you will... a- and I want to emphasize this. The government, this is one area where the government has a great deal of discretion. So you, your best effort may still fall short, but it is y- it will... We will tell you in advance, um, you know, don't assume anything. Take nothing for granted. Get everything in there that you think applies. Um, don't assume the contracting office will read into anything.

Joel:

Mm-hmm (affirmative).

Joe:

Uh, they, you know, y- they might make a logical inference. They might not. Uh, just understand that the source selection authority that is removed from the contracting office will regularly be the ones making an evaluation and recommendation, and then the contracting officer has the final authority.

Joe:

Uh, as it relates to past performance, I'll leave that to Joel.

Joel:

Sure. Yeah. I, I would say I think that normally, there, there are two components for most, um, m- most evaluation teams as it relates to past performance, uh, the first being the contractors' inputs in their own, uh, uh, proposal material. Right?

Joel:

You will have, normally, there will be certain requirements that are set forth, um, where you need to provide evidence of past performance of two or three or however many, um, uh, previously completed contracts. Uh, but that's really only a part of it.

Joel:

Of course, you know, any, any contractor who's been doing this for, for some amount of time is familiar with their CPAR and CPAR rating. Uh, that is a government run, uh, system in which after you complete any prior contract, uh, the contracting officer will go into the system and provide their own comments, uh, related to the performance of that prior contract.

Joel:

Uh, and so that will normally provide, uh, the contractor an additional data point, if you will, uh, related to, uh, your, your past performance. Um, one point on that is, is normally, past performance, uh, it often operates as kind, on, on kind of a pass fail basis.

Joel:

Um, and, uh, I, I will, I will make a brief note, uh, for any small businesses or, or other, uh, uh, businesses that may qualify for certain set-aside requirements, um, or opportunities, rather. If, uh, you are a small business under one of these programs, and if the procuring agency is going to, uh, ultimately preclude you from competition based on the basis of past performance, uh, that is really a determination. They are required by regulation to engage the SBA in making that decision, making that determination.

Joel:

Uh, and then, the SBA, uh, will go through, uh, the relevant paperwork in making a determination whether you as a small business have the ability to perform that particular contract.

Joe:

Right. And that's referred to, the, the term [inaudible 00:16:46] for that is a responsibility determination. So, uh, what you should know is the co- what Joel is saying is the contracting officer makes that determination without more, it is not sufficient. They need to go to the SBA. You have a right of appeal through the SBA on a respo- on an adverse responsibility determination, which would include past performance.

Joel:

And if you find yourself in that situation, that is certainly a conversation that you should be having, uh, in your, um, in your post award decision conversation with the agency.

Joe:

Right. And a lot of these, a lot of these con- contracts will be competing on the FAR Part 15. That's a little, that's a little more nuanced than we have time to get into today, but that FAR Part 15 also requires a debriefing.

Joe:

So if the [inaudible 00:17:32] you know, piggybacking on what Joel is saying, is if the only reason the agency gave for not selecting you was an, the inadequacy of your past performance, that is a responsibility determination. You should have a right of appeal through the SBA.

Joe:

And you want to preserve your rights, and you will always be limited to 10 days on that, from the date of the announcement. So, so be, be careful and, and look for that. Request your debriefing right away and, and get, find out from the agency what it is they, what the reason for, for not awarding.

Joe:

Um, I want to be conscious of everyone's time. It's about 11:20. I know Dani has some more questions.

Daniela:

I was going to say just l- looking at time right now, I'm going to switch gears just slightly. So I wanted to ask you guys about the difference between the best value and the LPTA type of procurement.

Joe:

All right. So why don't I start that one? So th- they're just, they're two major lanes in which contracts are competed. Um, there's a lot of case law in our universe, the LPTA, the lowest price technically acceptable, is probably the most used, and the small business universe that we've added just means that there's a technical bar over which you have to, you have to exceed that technical bar. But then, once e- w- whoever exceeds that technical bar, whoever has the lowest price for those, exceed that technical bar, wins the contract.

Joe:

Um, that, that's the, the LPTA, in its, um, in its short form. That does not mean that you can turn in the technical proposal or that the technical proposal is unimportant. It's eminently important. You have to be technically acceptable.

Joe:

But after that, once you get over that technically acceptable threshold, there are... It's pass fail. You either pass for technically acceptable, and then you go onto price consideration, or you fail the technical proposal, technical side of it, and you're, and they never review your price. Um, so that's super important.

Joe:

Under the best value... actually, why don't I just let you describe, uh, w- what the best value looks like?

Joel:

Yeah. It's y- you know, i- it's best to understand these, I guess, just in, in opposition to each other. Um, and the question is, what drives the award decision? Under an LPTA, price drives the award decision. And, yeah, you have to clear the, the technical hurdle. Once you're found technically acceptable, then price drives that decision.

Joel:

Under best value, factors other than price may drive that decision. No, won't necessarily always, but they may. Uh, and the FAR uses the term trade offs. It refers to, to, it allows the agency to make what they call trade offs.

Joel:

And so that just means, then, if you have, uh, a unique solution, right, a unique technical solution, um, then an agency, uh, is allowed, under best value determination, uh, to pay a price premium for that unique solution. Or simply, if you have better management structure or, or, or whatever the various trade offs may be, uh, the agency is allowed, under best value determination, uh, to consider those things.

Joel:

Importantly, uh, the agency is not allowed to cons- to make those trade offs under an LPTA. It is just a pass fail determination based upon, uh, your technical acceptability, um, and based upon these other factors, every factor other than price, uh, where, uh, I'm sorry, the, uh, the agency can make a pass fail determination. And then, they must award to the lowest price after that point.

Daniela:

So I'm going to try and get one more question in before we [inaudible 00:20:53].

Joe:

Sure. Yeah.

Daniela:

So with that being said, what, uh, do these solicitations look the same? And how can a contractor use these type of evaluations to their advantage?

Joe:

Um, yeah, I'll pick up. So I'll pick up [crosstalk 00:21:06].

Joel:

Sure.

Joe:

Do, do they look the same? Um, you're looking for specific language. So what I'm do- if I pick up a solicitation from a client, uh, who's asking me to review it, I'm going to look for language specific to the issue of best value, or I'm going to look for language specific to lowest price.

Joe:

Um, you may read lowest price in a best value solicitation, but it might say something like, "All factors being equal." Right? If everybody gets the same score. So you might see a scoring rubric in a best value contract that reads, "You can either be rated, uh, you know, no weaknesses, some weaknesses, right, or, or weak." Or you could see excellent, good, fair.

Joe:

Or you could see some, I've seen 'em where they have a scoring system where you, you can be assigned a certain amount of points, zero through 10, for each factor. And whoever has the highest number of points wins.

Joe:

And you might read something in a best value that says if you had two, if two offers tied in whatever rubric, then the tiebreaker would be price, and that was what, um, Joel was talking about as far as these trade offs. And that's allowed.

Joe:

Um, the, the government can assign, allowed a lot of discretion in what points it assigns. Um, and if it pays more, the government, uh, the best, the, the advantage to the government in a best value is it allows the government to pay more for a higher, what it perceives to be a higher quality service or, or a more unique solution or a better technical approach.

Joe:

So Joel, what Joel said earlier is succinct. An LPTA deprives the government of that opportunity, which is why the case law suggests that LPTAs are not favored. But you see many of them, because they're just easier to write, honestly. I think that's why, Joe Whitcomb's theory on why LPTAs are more commonly used. It's just, it's just easier, so a more streamlined process.

Joel:

Yeah. And I would, I would probably tack onto that, they may be more easier to, to mess up as well.

Joe:

Right. (laughs) Yes.

Joel:

Um, (laughs) because you will often find, right, language, uh, from the technical evaluation team, again, right, once, once all of the, uh, the proposals come in, uh, that is normally the, the, the re- the job of parsing through all of those proposals and comparing that, uh, line by line to the requirements and, of the solicitation. That is pushed off to an evaluation team.

Joel:

And so you will often find language, right, from the evaluation team that essentially is, is going through the thought process of a trade off, right, despite it being an LPTA, uh, type procurement.

Joel:

Um, to, to answer the second part of your question, though, Dani, about how you can use the type of procurement, uh, to your advantage as a contractor, um, I mean, your advantage, that's kind of a broad term. Uh, uh, s- certainly, there is the, the likelihood of winning the award. But then also, you know, your advantage could be construed as y- y- the margin that you actually realize, assuming that you win the award.

Joel:

And so, uh, the answer to that question very much depends, uh, on the type of, uh, uh, contract on which you're bidding, but also on what your strengths are specific to your own business. Right?

Joel:

Again, I'll go back to the example where you may have a unique solution, a unique technical solution, uh, that you know that competitors may not share. Um, in that case, uh, you can, uh, certainly you want to be price competitive.

Joel:

However, in the event that you are in a, a best value determination, uh, you may be able, then, to talk up your strengths, right, and your unique solution, and you may be then able to realize, uh, a little bit better margin, uh, for the competitive advantage that you have in the marketplace.

Joel:

Uh, conversely, if you find yourself in that situation and, uh, a- and you're in an LPTA type context, well, now you know, right, all I need to do is clear the bar. I just need to clear the technical bar. And in that case, then, it's a price shootout. Right? And, uh, you need to be ready and willing to make, um, whatever moves you need to make in order to win that price shootout.

Joel:

Uh, you will often find, uh, contractors who just bid the exact same way for every type of contract. However, being flexible and responsive to, uh, the, the method of, uh, the, that the government will employ in making its award determination, will give you a distinct advantage, usually both in terms of your likelihood of award, but also in terms of potentially realizing, uh, healthier margins, uh, when appropriate.

Joe:

Um, we're nearing the end of our time, so I want to put, I want to try to address, um, any type of, uh, an- anticipation that folks may be having. Um, if the question pops into your head, and there's a couple of questions I'll address, but, uh, if the question pops into your head, "What if the government gets this wrong?" Rest assured, they will.

Joe:

Um, and, and there a- there is legal recourse for you. Right? If you believe you were technically acceptable, you believe you satisfied all that criteria, and the government ruled you out because you weren't, um, that's a good, that's a good reason to reach out to a, a government contract attorney who knows what they're doing and can handle your post award bid protest.

Joe:

And that's your w- but our firm will be, in the course of our upcoming webinars, will be covering, uh, post, pre and post award bid protests over three different webinars, because that's a pretty dense, uh, topic.

Joe:

I want to go over the ones that are on here. W- The first question I think we addressed, what if I don't have past performance, uh, Joel addressed that as being, uh, an issue with relation, uh, that's a responsibility determination. You have a right to appeal that decision, uh, up to the SBA, uh, for, for a responsibility determination.

Joe:

The second piece, how can I team with a company that's covered under nine, uh, FAR Part nine point, I think it's point six. Um, teaming agreements, uh, are legal. They're recognized. Um, the government is, is supposed to look at those, uh, with favor. We will be unpacking teaming agreements in future webinars. Um, that'll be something we're going to cover in more detail than we have time today. Um.

Joel:

They're pretty complex.

Joe:

The, the next question is about unsolicited proposals. I would just qualify that and say that is another, at least a half an hour long, uh, webinar on unsolicited proposals. We have some content on our website that you guys can find on our resource page that deals with unsolicited proposals, but we will be... That could be the topic for, for its own separate webinar on how to get that done. And there's more than one lane on how to get that done.

Joe:

The, the last one is, uh, uh, from [inaudible 00:28:02] if you chimed in, if you got in late, and we don't want anyone to be nervous. Um, there were over 300 registrants for this. All of this, this webinar will go out, um, in an easily digestible, you know, easily viewable format to all of the registrants, and it will be warehoused in our resource page online.

Joe:

So that, we're, we're d- we're doing this so that folks, um, can view this in perpetuity, uh, have this as a resource, and then ultim- for our benefit, if ultimately, you guys run into a snag or have additional questions, then hopefully, our hope is that you'll reach out to us and, you know, and ultimately, use our legal services.

Joe:

Um, but we, we als- w- what Joel and I and o- our other attorneys in this firm have found, one of the motivations for us to do this, is if you as the offer, as a contractor is, are armed with this, is armed with this information, then you know the right time to call on us.

Joe:

Very often, the most heartbreaking instances is when people wait too long, when there's, as we talked about last week, when there, uh, or last month, when there is ambiguous language in a solicitation, and you wait until after the offer. Then our, our, the sad advice we have to offer is you waited too long.

Joe:

If you get a bad outcome on a bid, uh, for a bid you think you should have won, and you didn't, you wait longer than 10 days, um, then that, our, we won't be able to help you. Uh, if you believe that the awardee should not have been eligible because of the si- their size or because of their status, you have five business days to deal with that. And if you wait too long, we won't be able to help you.

Joe:

So we want to educate those who might be coming to us so that they know exactly, you know, one, they know how to help themselves, and two, they know when to call on us if they need our help. So again, to the gr- to, to the degree that any of you have additional questions, you all received this invitation from my real email, joe@whitcomblawpc.com. So if you have any additional questions, shoot those questions over. We will be responsive. We will get back. And we will use the questions that you offer us for the purpose of future webinars.

Joe:

Um, but also, if you guys got my email, emails from me, um, you're able to, to, to directly l- uh, click right into my calendar and get yourselves on my calendar in either 15 or 30 minute increments. Um, and that's always, that first one is always, um, on the cuff, you know, and then we can figure out whether or not there's a, we're a good fit and whether we can help you, uh, as [inaudible 00:30:38].

Joe:

Um, I want to, I want to thank everyone who joined us today, um, and again, know that we will be doing this again in October, possibly two in November, again in December. We'll announce well in advance what those, what those topics are.

Joe:

And with that, uh, we're about three minutes over. I hope everyone will forgive us for going long. Um, I don't see any other questions that we didn't address. Again, if you do have any other questions, use the email that sent you this, you know, sent you the invite, and I'll get to your questions, and we can schedule time to speak if the questions are longer than I can answer in an email.

Joe:

With that, I thank you on behalf of our firm and on behalf of, uh, Dani and Joel for, for joi- joining in.

Joel:

Thank you.

 

 

David versus goliath Video 1

Starting Before the Solicitation and Using the Q&A

I wanted to thank everyone who showed up for our webinar. The broadcast of our webinar is above and a transcript of the webinar will follow. ~Joe Whitcomb

Joseph Whitcomb:
All right. We're waiting for a few more folks to file in. It's 11:01. My name is Joe Whitcomb. I want to say good morning to everybody on Mountain and Pacific time. Good afternoon, everybody on the Central and East Coast. My name is Joe Whitcomb and joining me today is Joel Hamner and Dani Tarolli. Dani will be moderating today.
Joseph Whitcomb:
First, I want to thank everyone who is taking the time out of your busy schedules to show up today for this webinar. We hope it will be informational and useful to everyone who's joining us. Again, my name is Joe Whitcomb. I founded a law firm in 2012, and our firm's been helping small businesses, specifically in the socioeconomic space, since 2013, relevant to the universe of government contracting.

Joseph Whitcomb:
Our primary focus since 2013 has been on SDVOSBs, obviously, and in their efforts in winning, maintaining, and collecting on government contracts in which they're performing. Because of that work we've had a lot of conversations with existing and prospective clients whose problems, in our view of the world, could have been meaningfully reduced or curtailed if they had taken action earlier in the procurement process. So that is why we are focused today on the early part of the procurement process. Why today's meeting is about starting before the procurement process and taking advantage of the Q&A process.

Joseph Whitcomb:
We're going to break this webinar down into two sections. The first 20 minutes is going to be just a facilitated conversation between Dani, Joel, and myself. I'm going over a list of questions that we've prepared in this patient of this webinar. And then the last 10 minutes of the 30 minutes will be dedicated to answering your questions that you guys have as they may give way. And again, you'll see some chats pop up, instructing you on maybe using the chat bar, of course, using the Q&A as a way to get questions over.

Joseph Whitcomb:
But understand that we will be focused on those questions in the last 10 minutes. We hope we address enough in the first 20 that you won't have a lot of questions, but if you do, please feel free to use it those last 10 minutes. And then again, any questions that we're not able to answer in this 30 minute segment that we got over, that we feel like we can put together, we'll put together a response, sent you over a personalized video for you guys to be able to review. And of course we're always available through email if you have questions. And with that in mind, I'm going to turn it over to Dani, short for Daniela, to start with our questions.

Dani Tarolli:
So I guess to start things off, you guys suggest that we start the RFPs before the process. So why don't you explain exactly what you mean by that?

Joseph Whitcomb:
Sure. Joel, you want to take that question?

Joel Hamner:
Yeah. So I'll kick it off here. And this is the first in a series of five webinars where we kind of talked about the disproportionate power right now and sometimes that it seems to exist between contractors and the federal government, particularly small businesses. And so starting before the RFP even comes out is vital to preparation, right, when you are in this David and Goliath type interaction. And so what we mean about starting before the RFP is really just actively tracking and appropriately responding to RFIs and sources sought when those documents and other related information comes out.

Joseph Whitcomb:
One of the things that Joel and I were talking about before is what kind of things are you as contractors going to be looking for in those documents, right? The first thing you'll learn obviously is what is the government trying to purchase by way of goods or services? The second maybe equally important thing you'll learn is how does the government plan to procure this? In other words, is it going to use a blanket purchase agreement? Is it going to use a negotiated procurement? If it comes out on EBI, that's a good indication that they're going to be using federal supply schedules, or what you may refer to as the GSA schedule.

Joseph Whitcomb:
And it's important for you to know as a contractor, is this probably going to be split between five or 10 contractors in the sense of an IDIQ or a MATOC or is this going to be a single award to a single awardee. And one of the things you can do in looking at those early documents, is just determine whether or not this is a good fit for your company, you have the bandwidth to perform. Because as Joel hinted at, as we get further on in our seminars, we'll talk about the consequences of maybe getting awarded a contract for what you're maybe not 100% prepared for. So those sources sought and those RFIs can help you with that. And then lastly, for this audience, you want to be looking to see whether or not it's set aside for socioeconomic. Is it SDVOSB, is it a small business set aside, or is this open compete?

Joel Hamner:
Yeah, Joe, I'll just jump on that and say, additionally, responding to RFIs or sources sought, when they come out is also vitally important in a set aside context. Oftentimes that is a critical component. Sometimes even the only component of market research that a contracting officer may do. And so by responding to actively monitoring, tracking, and then responding to those types of documents, RFI, sources sought, that is what will maybe not necessarily ensure, but certainly tip the scales in favor of this particular procurement effort being set aside for something that you may qualify for.

Joseph Whitcomb:
Absolutely.

Dani Tarolli:
My question after that would have to be, if a contractor doesn't respond to an RFI or sources sought, can that contractor still submit a bid?

Joel Hamner:
Absolutely.

Joseph Whitcomb:
Yep. But piggybacking off what Joel was saying is if you, as a service disabled veteran owned small business or veteran owned small business, or even a small business, don't respond to that RFI or sources sought, then that may deprive you of the ability to later complain, as Joel and I will get into in this seminar, to be able to later complain about the fact that the contract was not set aside. A lot of our clients do business particularly with the Veterans Administration. I try to encourage every client, prospective client that's SDVOSB or VOSB make sure you're responding to those RFIs or sources sought, because otherwise the contracting officer may, not always, but may use the lack of responses as an excuse to not set aside that contract in the future. But to Dani's question you can absolutely and should respond. That's actually key to making sure that your rights further in the procurement process are preserved. If you don't submit a bid, then your opportunity to complain later will of course evaporate.

Joel Hamner:
Absolutely.

Dani Tarolli:
So would that being said, what do you think that the most important part of solicitation is that contractor should be reading?

Joseph Whitcomb:
Well, Joel, you came up with this question, so I'm going to let you run.

Joel Hamner:
So I'll jump on that. So that certainly is a loaded question. What's the most important part of the solicitation? So now we have moved beyond that pre-RFP stage and we have actually seen the solicitation. What we see oftentimes is that contractors will tend to just go right straight to the SOW, right? The statement of work or the performance work statement, however, it is styled in that particular solicitation, and bypass a whole host of other issues that are extremely relevant for how to prepare a properly responsive proposal.

Joel Hamner:
If I were to pick one key aspect, I would say, you must be aware and have intimate knowledge of the source selection criteria, right, and the evaluation methodology. That is going to inform you exactly how you're going to style your proposal. It's going to inform you what information needs to be included and what doesn't need to be included. Sometimes we run into issues where we're contractors maybe have included information that might not necessarily be necessary, but then ultimately the contracting officer uses that over abundance of information, right, to find a reason to exclude that contractor from consideration of the award.

Joel Hamner:
But of course, I mean, there are a host of other points along the way that, of course, we need to be mindful of. Everything from understanding what's the contract type, what's the period of performance, what's the set aside criteria, which we've mentioned previously. And certainly perusing, right, the long list of FAR or other agency clauses, really looking to see whether there are any clauses that might not necessarily be applicable, that might should be removed from that. Whether there are any other conflicting provisions that might exist there too.

Joseph Whitcomb:
Yeah, I would just piggyback on Joel's response and say also be on the lookout as the technical experts in your field for the things that just don't make a lot of sense, right, or which are completely unclear. If you're a construction contractor and the request for bids, in this example, doesn't include things that you as a performer would just know they are necessary, right? That is absolutely goes into our next point, which is how to leverage that Q&A period.

Joseph Whitcomb:
So looking for those ambiguities, looking for things that just don't make sense to you as a technical expert, and then enumerating it, putting a list together of things that you need clarification on in order for you to be able to best prepare. Because where you don't want to be as just feeling your way around in the dark, putting together a proposal, and for reasons we'll discuss today and in future webinars, and then waiting until the award to complain that, oh, well, I didn't understand the request for proposals or the request for bids, or what have you, or the request for quotes. So that's super important. As Joel said, how is this thing being competed? Is it under FAR part 15? Are discussions available? Am I going to get a debriefing? Is the government ask-

Joel Hamner:
Is it DOD acquisition?

Joseph Whitcomb:
That's right. Exactly. What agency? And it may be most importantly, ladies and gentlemen, when are my submissions due? Because if it turns out you open this RFP, and you have a huge effort and response... You'll see this happen a lot in late August and early September. The responses are due in a week. Well, the first alarm bell that should go off is, well, that's completely unreasonable. There's no way that they can expect us to respond to that. That might be the time to either reach out to the contracting officer, or send them an email and say, "Hey, this should at least be a 30 day response." So those are the things that I would suggest a compliment what Joel was saying.

Dani Tarolli:
So of course this all can be very overwhelming. And the question and answer phase can alleviate some of those concerns. Now is the contracting staff required to provide question and answer period during every solicitation?

Joseph Whitcomb:
I'll take that. So the response to that is sure, right? If they put out something that's unclear, and you submit questions and they don't respond, then the only choice or leading you with is to rush in with a pre-award bid protest, and complain about patent ambiguities or defective solicitation protestors, or sometimes style. So the answer is if they don't respond to your Q&A, then they've ultimately forced your hand and forced you to litigate as it relates to the lack of clarity.

Joseph Whitcomb:
Now will the government sometimes respond with answers that are not terribly helpful, like see paragraph 10.13 in the solicitation? Absolutely. And you should still be prepared to escalate, but understand that your deadline for complaining about those unclear clauses or those unclear evaluation criteria is the date and time of when responses are due. So if your responses are due noon on August 30th, then that's the latest you have to clear up any of those ambiguities, or to file a protest and force the government's hand.

Dani Tarolli:
Yeah. So do you have any suggestions on helpful questions you would suggest to pose?

Joseph Whitcomb:
You want to take that, Joel?

Joel Hamner:
So yeah, I'll jump on that. The first that you've referenced at length here, Joe, is to clarify ambiguities. As you talked about that, I remember a recent issue that we had where we saw a solicitation that listed the evaluation criteria would employ both an LPTA and a best value determination, right? Which just is nonsensical under the FAR and under the provisions of the FAR. And so certainly clarifying whether that be technical ambiguities or contractual ambiguities.

Joel Hamner:
Another thing that we've mentioned already today is seeking to have removed inapplicable terms. Inapplicable FAR part 52 flow down clauses that may not apply is also that's a prime opportunity to raise that in a Q&A, right? You say, look, I see that this clause was flowed down. You have, for example, set aside the procurement as this type of a set aside. This particular clause may not apply.

Joel Hamner:
And normally then, I mean, it depends on the contracting officer, the type of response that you'll get, but you will get some type of response, either that's inapplicable or, sure, we'll remove. Occasionally you'll run into an issue where the contracting officer is somewhat recalcitrant and dug in. And it says what it says. It is what it is.

Joel Hamner:
I think one of the biggest things though, and one of the most important things you can do with a Q&A comes back to the theme of this David versus Goliath dynamic that sometimes occurs particularly again with small businesses seeking the contract with the federal government. And that is that your Q&A is a chance to certainly clarify issues. But it's also an opportunity to pin the government down, pin the contracting officer down in how they are going to either execute the contract or follow through on making their award decision.

Joel Hamner:
We recently had another instance in which a contractor reached out to us and said, "Hey, I see a couple of these terms. They're unique. Haven't seen them in a procurement like this before, and they caused me concern. I have some concerns about that. What can we do in the Q&A process to approach those?" And so what we did is that we developed a few questions that said, hey, I see term X says this, right? Far provision Y requires that. How do you, government, intend to meet the requirements of the FAR provision when you do this?

Joel Hamner:
And what that ultimately is going to do is that the government is going to ultimately articulate their process and say, "Well, we intend to do these things to ensure that the regulations are met." And now they have essentially committed themselves to that. And if they fail to follow through on that, then you will always be able to point back to that question. Those questions become part of the solicitation. They're incorporated into that solicitation.

Joseph Whitcomb:
Here's one thing I want to add to what Joel was saying. In that same vein, when you're looking at these FAR provisions, look for any sort of, again, it's the technical experts, look for a major departure on how the government is purchasing a good or service. We've seen recent examples, and the term of art that we lawyers like to throw around without thinking about our audience is bundling, as an example, or consolidating, which is covered under FAR part seven.

Joseph Whitcomb:
So recent example was the Social Security Administration taking what was previously 1,000 individual contracts covered under a BPA and consolidating them. And that was all over the country. I understanding there's 170 hearing offices and 1,700 judges. And they consolidated those contracts into five contracts across the country. The government's allowed to do that. But there's also a process the government has to go through to ensure that that kind of bundling or consolidating, does it negatively impact small businesses, or SDVOSBs.

Joseph Whitcomb:
So look for something that's very different. Look for, assume, construction contract, where the government attempted to award a MATOC to the entire East Coast for a furniture contract that they were going to distribute across the entire country into five regions. And that might, by its very definition, might make it super, super difficult for a small business that is operating under the size standards of the SBA, right, to be able to perform. I mean, if you're a $11 million company or a $37 million general contractor, it may not be realistic for you to be able to compete on that contract. And it may be important for you to go in and press the government and say, "Hey, did you do a procurement plan? Did you get the SBAs input on how this is going to hurt or impact small businesses?" And if the answer to that question is no, then that might throw open the doors for, again, for litigating, or forcing the government's hand on that front.

Dani Tarolli:
So with that being said, the question and answer phase can ensure a certain performance out of the government. Can the question and answer phase also hurt you? For example, if you file a legal action, is there a risk of losing the contract?

Joseph Whitcomb:
I'll take that one. So the legal answer to that question is absolutely not. That's retaliation. They're not allowed to do that. That's a different answer from what may play out in reality. But know that if the contracting officer or the contracting staff does that, they are acting illegally. And they could even go so far as to basically limit... All these contracting officers work with a certain level of immunity as it relates to private actions against them. If they go so far afield and start retaliating against you individually, they may crossover into a universe of what we lawyers refer to as bad faith. And if they'd cross over into that universe, that can change the game completely. So again, the legal answer is no, they're not supposed to be able to do that. And no they shouldn't. And if they do, they will create legal recourse for you.

Joseph Whitcomb:
And again, I think the other piece of it is, is just using the Q&A, being as politically forthcoming and upfront, as you can be. Not being combative, asking questions that you need answers to. And then you have all of those documents that you can present to the GAO or the court of federal claims, or whatever route you decide to go, and say, "Look, these are all the opportunities we gave the government to answer these questions. They dug in their heels." And then let them answer it to the GAO or the court of federal claims judge for not responding.

Joel Hamner:
Joe, there's a question here to kind of repeat that question about the legal action. And so I want to pick up on a couple of things you said, but I'll simply say the question was, do you as a contractor open yourself up to any potential adverse consequences, right? If you take a hard line on a Q&A or potentially even file a bid protest or otherwise litigate a claim. And so certainly, yeah, to your point Joe, no, the government is precluded by law from holding that against you, right? That obviously is your legal right to be able to take any of those.

Joel Hamner:
That said, of course, right, there are pragmatic considerations. When we, again, kind of hearkening back to this most recent example that we dealt with, where we developed some specific questions that seemed to get at what we thought were likely difficult terms, right, for the government to be able to support, and potentially at odds with certain FAR provisions. Really, it's just taking a matter of fact approach, right? And laying before the government to say the regulations say X, your term says Y. And then just ask the question how do you reconcile these two? How do you intend to follow through on ensuring that X is followed? You can do that in a political way, right, and in a good way. Because of course they still are your government customer. But fortunately in the world of government contracting, you're right, they are precluded, Joe, from holding that against you.

Joseph Whitcomb:
So again, maybe this will be the last word on this, whatever danger you may encounter from using the Q&A, and even using the litigation is far outweighed by the risk you take in being silent. Because if you are silent, especially when the law is super clear, if you're silent about a super ambiguous clause in the contract, it's just completely unclear, and you don't complain about it before the solicitation responses are due, then the government will be the first ones to tell you in your bid protest when you don't win, hey, you should have brought that up before the award. So they will certainly use your silence against you as readily as they might illegally use your questions against you, if that makes sense. So whatever, again, I just don't know how to put it more plainly than whatever risk you run from being overly verbose, you've got a bigger risk from being too silent.

Joseph Whitcomb:
And I see now that we're at 11:24. We want to be respectful of everybody's time. We have two questions that have shown up in our Q&A. I don't know if there's any others on the chat, but I want to take the first question, which talks about the limitations on subcontracting. And the question is how do you bring this up with contracting? And when you know that the incumbent has hired all subcontractors, no W-2 employees.

Joseph Whitcomb:
So that's a question that we could probably spend a whole 20 minutes. And our team in this firm has litigated this issue on the limitations on subcontracting a lot, a great deal. So the way the courts come down on that is that the limitations in subcontracting is an issue of contract administration. It is up to the contracting officer to make sure that the limitations in subcontracting are followed. Meaning that if it's an SDVOSB set aside, as an example, that the prime contractor, you, those are within the sound of my voice, do not subcontract more than 50% of that contract value out to other than similarly situated other SDVOSBs to put it simply.

Joseph Whitcomb:
So if you're going to submit, if you're going to subcontract to a small business or a large contractor that's not an SDVOSB, then your ceiling is that 50% mark of that contract value. If it's a million dollar contract, don't subcontract more than 500,000. There's a little bit of nuance math in there. You can remove your cost in a construction contract. Obviously in a construction contract, the math is different because it's 15%, maybe five, but in a services contract, you can't subcontract more than 50%, or manufacturing contractor, other than similarly situated.

Joseph Whitcomb:
Now I think the question is, what do you do when you find out that the incumbent has been violating that, or that the awardee has been violating. Well, then you get into the universe of protesting at the SBA about sensible subcontracting, and whether they're complying with the limitations of subcontracting. You can use responsibility determinations to complain. And ultimately, if you really want to opt for the nuclear option, if you're really convinced that the awardee is not complying with the law and has represented to the government that they are, then you have a qui tam action or a False Claims Act action after the award.

Joseph Whitcomb:
And we will unpack that issue in later webinars because that's a big deal. If you bring a qui tam action against another contractor and stating that, "Hey, they were awarded under a set aside. They haven't complied with limitations of subcontracting," the penalties around one around 13 CFR, 125.6, which is what governs that limitations in subcontracting, are huge. The minimum penalty is a half a million dollars. That's enormous. And that's statutory, which means the judges don't even have any discretion as to whether or not they levy that penalty. And usually that involves the DOJ. And it is. So it is not anything to be taken lightly.

Joseph Whitcomb:
And so if you're the contractor, and you're like, well, I'm competing against people who are not playing by the rules. So unfortunately your recourse is that, if they're awarded and they're not complying, then you could ultimately bring a qui tam or post claim. Now they essentially have six months of that first year contract performance to get into compliance, right? Because the measure of whether they're satisfying that limitations in subcontracting is that full base year. So they could theoretically subcontract out 100% of the contract. And then on day 179, pick up full performance and carry it out for the rest of the year, and they'd be compliant. But to Todd's question, you can alert the contracting officer. Then your job is, ultimately if the contracting officer just sort of winks at the error, then your job is really just go to the DOJ and bring it up there.

Joel Hamner:
Right. One thing Joe, that you mentioned is, obviously, you mentioned stiff penalties related to that. And I would just underscore, and it's because it gets to the heart of how these set asides work, you mentioned in passing the ostensible subcontractor rule. That's basically a rule which states, in regulation, that if a subcontractor performs a majority are vital components of a given subcontract, that subcontractor will be treated as an affiliate of the prime contractor. And so if you have a dissimilarly situated subcontractor who's performing all the work, right, or at least all the vital parts of that particular contract, that raises serious issues with respect to how these set asides are actually functioning.

Joseph Whitcomb:
All right, I got a question from Kevin about are there any books or guides that we'd recommend for someone who's just starting out in the government contracting universe? So this is a shameless self-plug in that this firm has written about 350 to 400 blog posts on our website, specifically related to the universe of government contracting. That's probably an easy place to start. We've also put together, there's some videos out on our website, on our resources page that'll help with that.

Joseph Whitcomb:
But also, there are other attorneys. Steve Koprince up in Kansas has written some good books on government contracting for small businesses. The SBA, by the way, is an excellent and free resource, especially if you are service disabled, or I'll just say, SDVOSB for short, make an appointment. Any new contractors, make an appointment with your local SBA office to get in and use all of their free resources.

Joseph Whitcomb:
Also, every state will have a PTAC, P-T-A-C, that's another free resource. It's partially funded by the Department of Defense that will help you. And again, they won't charge you a dime. We participate in PTAC. We do free webinars for that group to help them. And they exist in virtually every state in the union. And will help you with those resources. And there's print literature and online literature on all of those places.

Joseph Whitcomb:
We are now officially out of time. It's 11:31. Now we're not, an the self-imposed deadline of 11:30, but we wanted to be fair to everyone who's joined us. What we're going to do is we're going to take all of these unanswered questions that exist in both the chat and the Q&A, and what we're going to do is, Joel and I, we'll put together short videos to try to address those questions, get those out to you via email. We've got some nifty little tools that make it easy so you don't have to download big videos. You'll be able to see them in your Chrome or whatever browser you're using. And so, that's how we'll address the rest of those questions.

Joseph Whitcomb:
Understand, as Joel started off, this is the first of five of these webinars we'll be doing on a monthly basis. And again, there are a myriad of ways to reach this law firm through our website, that you can submit your questions and forms online. And you can even create an appointment with me for 15 minutes at your leisure for any other questions you may have, if the videos we send out don't the job. We want to thank everybody who has joined us today. We greatly appreciate the time you've taken out of your busy lives. We want to be respectful of that. And so, again, we know there're outstanding questions. We will address those. And with that, we bid you all adieu. And thank you very much. Yeah.

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