Contracting officers are human. They want to complete procurements with the least amount of muss and fuss possible. They want to avoid embarrassing anyone and they’re (probably) not out to get you. But they are looking for a reason to eliminate proposals from the competition.
Don’t give them one!
Over the next couple of weeks, I’m going to use this space to talk about some common mistakes that I’ve seen in proposals that can lead to a defensible decision to eliminate a proposal from the competition (which means that a potential protest will have an uphill battle). By no means am I a proposal drafting expert. Rather, these are some items that I’ve identified from litigating numerous bid protests before the Government Accountability Office (“GAO”) and Court of Federal Claims. These are less tips of how to make a proposal a winner, and more examples of how to stop a proposal from being a loser.
Today’s topic: Assumptions
Do not make Assumptions
We all know the saying about assumptions, and it’s not good. In the context of federal contracting, assumptions can occur in two places: proposal preparation and proposal review. At either juncture, assumptions—particularly incorrect ones—can have major impacts on proposal evaluation.
In the proposal preparation phase, ambiguities in solicitation requirements can result in contractors making assumptions about the needs of an agency. This can be a dangerous proposition, however, as the bidder’s assumption may not match that of the agency. Mismatched assumptions can have disastrous results during proposal evaluation.
For example, let’s say a solicitation states a particular key employee position should have a Bachelor of Science degree and three years of professional experience. Proposing a candidate with a Bachelor of Arts degree with three years of professional experience may result in a rejected proposal. The assumption is that the agency will treat the Bachelor of Science and Bachelor of Arts degrees as equivalent, but there is no guarantee. If this example sounds farfetched, I assure you it’s not.
How can a business avoid this disastrous outcome? One way is to make thorough use of any question and answer opportunities provided by the agency. Request clarification on specific provisions that seem ambiguous. To the extent questions and answers do not achieve results, prospective bidders can also use the bid protest process to bring the concern to the agency, GAO, or the court of federal claims. Importantly, these forums will only consider challenges to the solicitation before the proposal submission deadline. After that date, the die is cast.
Additionally, assumptions can also arise during the proposal evaluation phase. To the extent an agency is uncertain about that a proposal is communicating, it may need to make assumptions about an offerors technical approach or capabilities. At that point an agency is making assumptions about proposal capabilities, and it’s filling in details about the proposed technical solution that may or may not be accurate. This is a risky proposition.
To minimize the possibility of miscommunications, express technical solutions as clearly as possible. Another example is useful here. Let’s say a proposed technical solution includes a rapid response team for troubleshooting. Do not refer to the team as a “tactical response unit” expecting the agency to know what capability such teams typically have. Instead explain that the proposed “tactical response unit” is a specialized team of five highly knowledgeable professionals with diverse experience to trouble shoot technical issues. Merely referring to the “tactical response unit” without further description leaves the specific qualifications of the team ambiguous, which will require the evaluating agency to make assumptions about the proposed approach and its ultimate value.
As was mentioned at the beginning of this blog, we are not proposal drafting experts. We are attorneys. We are concerned with legal sufficiency, not competitive posturing. Nevertheless, in the federal marketplace, competitive positioning and legal sufficiency sometimes go hand in hand. To that end, it’s our hope a few of our pointers might make a difference.