How to Protest Proof Your Federal Proposal: Part 1

Wednesday, March 4, 2020

How do I “protest proof” my federal proposal? 

Short answer – you can’t. 

Although federal agencies and their corresponding source selection boards work hard to create processes and procedures to evaluate bids fairly and objectively, at the end of the day they are translating qualitative data into quantitative scorecards…and they’re only human. However, there are concepts and tactics Government Contractors can use to better arm themselves against a protest lost on compliance and technicalities.

To find out what Protest Attorneys look for in acts against compliance, and how you can use this as armor and rationale in your next protest, The Pulse sat down with Elizabeth Jochum of Smith Pachter McWhorter after our February 26 Lunch and Learn event on the same subject (download the presentation here).

Question 1: Solicitations are typically long and thereby full of ambiguities, inconsistencies, date requirements and (let’s be honest) silly mistakes. Typically, Government Contractors are allowed to submit Questions (within a certain timeframe) to clarify a few things, but we all know proposal question writing is an art form in and of itself. How can contractors use the Questions & Answers period to protect their federal bid against protests? 

Offerors should realize that ambiguities in a solicitation need to be ironed out before bids are submitted (either through Questions & Answers, other discussions with the agency, or a pre-award protest). Depending on how obvious the existence of the ambiguity is, failing to get clarity could preclude any post-award protest grounds that implicate that ambiguity and could put the award – or even the whole procurement – at risk. 

I fully understand the hesitation clients have about protesting a solicitation. Effective use of the Questions & Answers process is the best method of trying to resolve solicitation issues without filing a protest. Just be sure that you actually get a resolution. Sometimes agencies’ “yes” or “no” answers, or answers that just refer back to solicitation provisions, don’t actually resolve the issue. 

Question 2: There are times when the government will release their answers to questions, but then some (or all, or most) answers won’t be reflected in the following amended and/or modified solicitation. Legally speaking, which document takes precedence? 

Many, if not most, Questions & Answer documents are explicitly incorporated into the solicitation through an amendment. Even if they are not, the Government Accountability Office (GAO) has held that information disseminated during the course of a procurement is effectively an “amendment” as long as it is: 1) provided to all vendors 2) in writing, 3) by the contracting officer. Responses during Questions & Answers generally meet these requirements and GAO typically treats the answers as being incorporated into the solicitation, just as an amendment would be. 

However, there are challenges when amendments to the solicitation create further confusion and occur after the Questions & Answers period. Offerors should continue to push the agency for clarification or to remedy whatever the issue is, even if the Questions & Answers period has closed. If that goes nowhere, then Offerors should seriously consider a protest. 

Question 3: Give us some tricks of the trade. How do Protest Attorneys use other organizations’ compliance issues to win protests?

The first thing most protest attorneys do when they gain access to an awardee’s proposal under the protective order is to look for compliance issues. That covers everything from checking to make sure the awardee complied with page limitations, font and spacing requirements and other formatting mandates, to more substantive requirements like required corporate certifications and level of experience for key personnel. 

We’ve all heard of situations where an Offeror feels confident that an agency won’t enforce a requirement during evaluation, but even when that is true, there may still be Protest Attorneys waiting on the other end of the gauntlet to point out the non-compliance and argue that it means the award should be overturned. 

Question 4: Putting feelings aside, when do you think a Government Contractor is wasting time with a protest?

I’ve seen a positive trend recently where clients who strongly believe that there was a specific error in the procurement, and then protest based on that error, ask me to review the record and advise them whether or not to move forward with the protest. They go into the protest with the intention to withdraw if they are wrong in their belief about the error. 

For example, the protester may firmly believe that the awardee’s proposed Program Manager couldn’t have met the qualifications or that the awardee couldn’t possibly have met the past performance requirements. It is certainly not a waste of time to pursue a protest on those grounds if there is a good reason for that belief. But if the record doesn’t bear that out, it makes sense to discuss withdrawing unless there are other strong supplemental protest grounds that emerge. 

It can be a waste of time to file shotgun blasts of supplemental protests late in the process, especially when a client’s strong beliefs about the competitive landscape don’t pan out. It should be standard practice for all protesters to confer with their lawyers after the documents have been produced and reassess, within the bounds of the protective order, whether it makes sense to go forward. 

Of course it also makes good business sense for Government Contractors to consider the likelihood not just of winning the protest, but of winning the contract, before they file a protest. It’s the Contractors, not the lawyers, that have the best understanding of whether their company has another decent shot of being selected as the awardee if there is a re-evaluation. This understanding shouldn’t be based solely on the win probability originally assigned to the proposal effort, but should incorporate information received during the debriefing, information about the awardee, and any other circumstances that may have changed from when the proposal was submitted. 

Question 5: What is the biggest challenge in this Government Contracting legal right now?

Overall: Cybersecurity Maturity Model Certification (CMMC). The requirement to achieve third-party certification in order to be eligible for Defense contracts and subcontracts is a massive one that’s likely to play out in protests, investigations, and in a whole host of other ways. (pulse note: we couldn’t agree more.)

Protest-Specific: Document disputes at GAO. Anecdotally, there is a feeling that it is becoming more difficult to get the complete record – including the awardee’s proposal and all relevant evaluation documents – in the course of the average protest. Agencies and intervenors are trying to limit the production of documents to the fullest extent possible in order to avoid supplemental protests, and GAO seems amenable to that trend. Some protests aren’t likely to progress without those documents, and document disputes can significantly ramp up costs for all the parties. 

Question 6: Okay, let’s settle this. What is the legal definition of Low-Cost Technically Acceptable (LPTA)? And is there actually a legal definition of Best Value (BV)?

In my opinion, it would be more precise to refer to them as “LPTA” and “Trade-Off” rather than “LPTA” and “Best Value.”  

FAR 15.101 contains definitions for the two (2) most common source selection schemes – LPTA and what the federal government and industry often refer to as “best value.”  It’s worth noting that both methods of source selection fall under what the Federal Acquisition Regulation (FAR) calls the “best value continuum.”  

Under an LPTA process, the solicitation establishes the requirements for acceptability, and the award is made on the basis of the lowest-evaluated price among proposals meeting or exceeding those standards for acceptability. 

Under a Trade-Off process, often referred to as “Best Value,” the federal government can make tradeoffs among cost (price) and non-cost factors – as long as the perceived benefits of the higher-priced proposal merits the additional costs and the rationale for the tradeoff is properly documented. 

The process the agency is using to select an awardee really should be crystal clear. It’s worth seeking clarification if the solicitation creates any confusion about what process is being used or about the relative importance of the evaluation factors. 

If you have any other questions on Government Contracting protests, please reach out to Elizabeth Jochum at ejochum@smithpachter.com.

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