Not Protesting Government RFPs Early Can Impact Your Proposal Evaluation.
As government contractors, you may sometimes run across an RFP that appears vague or even narrowly written for another contractor and you wonder whether you can file a bid protest on those grounds. In other situations, you wonder whether the solicitation is “written for another contractor.” This will seriously impact your proposal evaluation.
To answer the first question, the government must give bidders sufficient information in a solicitation and must provide offerors sufficient information so that they can prepare their proposals intelligently and compete on an equal basis. Failure to do this may taint you proposal evaluation or even violate the Competition in Contracting Act.
The U.S. Court of Federal Claims denied a pre-award protest that alleged the agency had failed to include essential information to permit bidders to intelligently prepare proposals and ensure that the agency had a common basis for evaluating proposals. See Glenn Defense Marine (Asia), PTE v. United States, 97 Fed. Cl. 568, 571 (2011).
In its ruling, the court explained that “in certain circumstances, it may not be possible for the contracting agency to predict its needs accurately. In such circumstances, . . . the solicitation should be based upon the best available information.” If you wait until after bid submission, the agency evaluation may hurt you without recourse of filing a bid protest. It will be deemed untimely.
The only wiggle room here, if at all, would be to show the available information in the commercial market that would have bolstered the government’s market research.
The Glenn Defense court went on to state that “… it is not unreasonable for an agency to “base the solicitation upon the best available information, and rely on the professional expertise and business judgment of the bidders to fill in the missing information for themselves.”
How Do You Approach These Situations?
When you respond to the government RFP, first see if you can carefully narrate how your product or service will meet the requirements. If not, you may get low scores on your evaluation.
Given the Glenn Defense case, the best approach to government proposal writing is to take the opinion to a vantage point where you show your expertise in the industry and explain in your proposal HOW your product of service will be accomplished or what ability will your product have. The missing piece is to see whether the solicitation has an end result. If so then explain how you offer will get to the end result.
On the other hand, if the government gives statistical data, you should at least show how your bid will function under the criteria or information provided. As you can see, filing a bid protest under these facts would be a dangerous gamble.
In answer to the second question, when a government RFP contains a Statement of Work (SOW) that appears overly restrictive, what do you look for before filing a bid protest.
Although a contracting agency has the discretion to determine its needs and the best method to accommodate them, the agency may include restrictive requirements only to the extent they are necessary to satisfy its legitimate needs. See FAR § 11.002(a)(ii).
The legal test is not whether is appears to be too restrictive courts review your challenge to allegedly restrictive requirements to determine whether the restrictions are reasonably necessary to meet the agency’s needs. It’s all about necessity.
For example, if you can should that the commercial market manufactures products that can accomplish the same end result, then a bid protest based upon restrictiveness may prevail.
The burden of proof is upon the agency justify AND document its rationale.
The bottom line is that you must be extremely careful when deciding to file a bid protest based upon restrictiveness or a pre-award protest based upon insufficient information. Always get around the requirement by looking to see if there is information provided by the government so that you can propose a product or service given the criteria.
An indicator is when the agency gives end result such as “above average performance” and “ sufficient reliability.” These are vague terms and may be subject to a valid bid protest.
Remember, if you do not file a protest based upon the solicitation terms, you may be stuck with the proposal evaluation.