Understanding the requirements and/or selection criteria before preparing a fully responsive bid to a government solicitation cannot be understated. In a recent decision (B-413559.2; B-413559.8) by the Government Accountability Office (GAO), two separate government contractors’ protests questioned the government’s evaluation scheme. Specifically, the protesters argued that certain terms contained in the request for proposal (RFP) were unduly restrictive. The protestors were ultimately challenging their respective elimination from competition based on the fact that they did not score high enough to be included in the top 60 technically rated offerors.
BACKGROUND
The RFP stated that the government agency will award the contract to the 60 highest technically rated offerors that were within a fair and reasonable price. There was a potential for 83,100 points, under the following categories: relevant experience, past performance, systems, certifications, and clearances. Both contractors were protesting the grading of their respective systems; specifically, that the government agency was wrong to not allow any points for accounting systems approved by third-party CPA firms (as well as purchasing systems for which the government requirements were the same). The RFP stated that 7,600 points were possible for adequate systems including 5,500 points for an adequate accounting system and 1,500 points for an adequate purchasing system. In order to receive the possible allotment of points for an offerors system, the offeror’s supporting documents must include either:
- An official letter from DCAA, DCMA or any Cognizant Federal Agency indicating that the offeror’s system has been audited; or
- A copy of the offeror’s official audit from DCMA.
The protesters’ here assert that the supporting documentation required by the solicitation was unduly restrictive. The protesters believe that the assessment of an accounting system by a third-party CPA should suffice. In contrast to this solicitation, in the Matter of AttainX, Inc.; FreeAlliance.com, LLC, discussed in depth in RGC Blog “Details Matter in Preparing Responsive Bids”, the government solicitation allowed for the contractor to prove its accounting system adequacy by employing a third-party CPA firm. The difference between the two cases lies with the agency that authored the solicitation. In the Matter of AttainX, Inc.; FreeAlliance.com, LLC, the soliciting agency was the Department of Health and Human Services, National Institutes of Health (NIH). In the matter discussed here, the Department of Defense (DOD) is the agency that will primarily be using the contract vehicle and as evidenced by the differing solicitations, the DOD has more restrictions than NIH. Specifically, for cost-type contracts, DOD de facto required that the potential contractor have a cost accounting system that is certified (adequate) by DCAA, DCMA, or some other cognizant federal agency. For whatever reasons, DOD, unlike NIH, chose not to recognize a third-party certification.
THE DECISION IS….
The GAO’s decision (that the solicitation was not unduly restrictive) noted that there was an expectation of the work to be 25% cost-reimbursement contracts and that DOD, the primary government agency using the contract, had valid reasons for the disputed solicitation provisions and points scenario. Equally, that the solicitation criteria were clear and indisputable, at least to the extent that it gave no points for third party business system certifications.
The protesters also included another claim within, implicitly a fallback should the GAO not concur with “Plan A” (third-party certification). The protesters contend that an adequate cost accounting system should not be required until award. The GAO disagreed because of the belief that a successful offeror should be able to perform cost-reimbursement task orders from day one of the award.
WHAT HAVE WE LEARNED
There is a lesson for any contractor contemplating a response to a government solicitation, which has requirements and are potential “showstoppers”. In this case, bidders who could not provide evidence of an adequate accounting system (or purchasing system) as determined by a government agency, were at a significant competitive disadvantage (7,600 points less than competitors who met the “restrictive” criteria). This should have sparked an internal conversation which considered a “no-bid” rather than investing significant resources within their proposal development and submission. At the very least, this solicitation criteria should have been confirmed in the question and answers phase of the solicitation.
Right, wrong or indifferent, when developing solicitations for which an agency expects an overwhelming response of potentially responsive bidders, the agencies are using solicitation criteria which is designed to efficiently and effectively “down-select” to a more manageable number. It might not seem fair, but it is what it is.
