Agencies Cannot Use Their Websites as Substitutes for FedBizOpps.gov Notices

Although government contractors have a duty to keep alert for contracting opportunities, agencies have a duty to use FedBizOpps.gov, and not their own websites, to give contractors FAR-required notice of those opportunities. Posting notices of solicitations, amendments, and awards on internal websites like the DLA internet bid board system (DIBBS) or the Army Single Face to Industry (ASFI) website is not enough. Unless the agency has posted notices on FedBizOpps.gov, the agency has not given contractors proper notice, according to several recent protest decisions of the Government Accountability Office (GAO).

In one case, the Army issued via ASFI a significant solicitation amendment one week before the due date for bids, but for technical reasons the amendment was not posted on FedBizOpps.gov until 7 PM the night before bids were due. GAO concluded that the Army did not give vendors sufficient FedBizOpps.gov notice, and recommended that the Army reopen the solicitation and set a new due date for bids.

In another case, a contractor learned about a DLA opportunity only after seeing in FedBizOpps.gov DLA’s notice of a purchase order award. After the contractor protested to GAO the agency’s failure to give FedBizOpps.gov notice of the solicitation itself, DLA claimed that the contractor should have seen notice of the solicitation posted on DIBBS and therefore the contractor’s protest was too late. GAO disagreed, holding that the contractor’s protest clock began only after DLA posted notice of the award on FedBizOpps.gov.

Contractors surprised by agency contract awards should not let an agency claim they should have known about the opportunity. Notice of a potential business opportunity is at the heart of full and open competition. Notice of an agency’s award of that business opportunity is at the heart of a contractor’s right to protest.

Terrence O'Connor is the Director of Government Contracts for Berenzweig Leonard, LLP, a business law firm in the D.C. region. Terry can be reached at toconnor@berenzweiglaw.com.

Avoiding Careless Proposal Preparation Can Help Save Business

In a recent and instructive case, a company that had successfully performed contracts at Camp Pendleton for almost a decade lost a recent contract because it carelessly prepared its proposal. It failed to follow precisely the proposal instructions, relying instead on two wrong assumptions. First, it assumed that its good record would let the government overlook short-comings in its proposal. Second, these “short-comings” involved failing to fill in all the blanks the solicitation required; the company wrongly assumed that the government would blindly accept its explanation for the missing data. If the company had obtained an independent “second-view” of its draft proposal, these errors would have been corrected, leading to an acceptable proposal and more revenues.

A Navy solicitation for installation and repair of fencing warned offerors that any proposal that did not “clearly meet the minimum requirements of the solicitation” would be technically unacceptable.” Safety was to be evaluated in two ways. One way was an offeror’s “experience modification rate” (EMR) for the past three years; this compared a company’s annual losses in insurance claims against its policy premiums. The other way was the offeror’s “Days Away from Work, Restricted Duty, or Job Transfer” (DART) rate, as defined by the U.S. Department of Labor for the previous 3 years. If an offeror was not able to provide these, it had to “affirmatively state so, and explain why.”

The offer from Cherokee Chainlink and Construction provided nothing on either safety measure, although it did tell the Navy that its insurance “premiums were too low to generate an EMR.”  After Cherokee lost the contract because it failed to provide the required safety information, Cherokee protested to the Government Accountability Office (GAO). Cherokee argued that listing a “0” for its 2010 and 2012 DART rates was not necessary because “it was apparent that Cherokee had zeros for every year as the EMR was zero.” Perhaps Cherokee thought this was “apparent” based on its decade-long record of good performance.

GAO disagreed and the company lost the protest. Cherokee should have provided the DART rates required by the solicitation. “While Cherokee argued in its protest that the Navy should have otherwise known that the protester’s DART rates were zero based upon its statement in its proposal that its premiums were too low to generate an EMR, the Navy explained in its report that it could not presume Cherokee’s DART rates for 2010 and 2012 based upon this statement concerning the firm’s EMR.”

All Cherokee had to do to make its proposal acceptable for this factor was to fill in the blanks or at least explain clearly why there were blanks in its proposal. It should have assumed nothing, and unfortunately lost the work. Cherokee Chainlink & Construction Inc., B-408979, January 3, 2014.

The lawyers at Berenzweig Leonard have seen hundreds of technical proposals and can provide your company an independent “second-view” of your technical proposal prior to submitting it to the government. In previous blog articles, we have described a number of easily avoidable fatal mistakes that have unnecessarily cost offerors valuable contracts. With all the time and money a company spends on preparing a technical proposal, an inexpensive, independent second-view of your technical proposal is always a smart investment.

Terrence O'Connor is the Director of Government Contracts for Berenzweig Leonard, LLP, a DC regional business law firm. Terry can be reached at toconnor@berenzweiglaw.com. 

Can Contractors Ask the Government for More Price Information?

With budget cuts making price more important in winning government contracts, contractors should know that the government is allowed to provide more helpful information during price discussions than the standard “sharpen your pencil” refrain.  FAR 15.306 (e)(3) lets the government “inform an offeror that its price is considered by the Government to be too high, or too low, and reveal the results of the analysis supporting that conclusion. It is also permissible, at the Government's discretion, to indicate to all offerors the cost or price that the Government's price analysis, market research, and other reviews have identified as reasonable.”

Unfortunately, the government rarely uses this broad authority. Contracting officers can be reluctant to get more specific on price, and prefer to err on the side of caution when it comes to price discussions. In the end, they disclose only the bare minimum that they have to disclose.  This safe approach, however, is not always the right one. In one GAO decision, an agency told an offeror simply that its price was “overstated” when its price was 8 times the government estimate. GAO said that the agency had to tell the offeror much more than “overstated.”  Creative Information Technology, Inc.  B- 293073.10, Mar. 16, 2005.

If the government is stingy with price information, it might help to remind the agency that the FAR lets the government be more helpful in discussing price with government contractors.  In one case, the GAO had no problem with an agency telling offerors during the first round of discussions about those line item prices which varied from the government estimates by more than 20%, nor with telling offerors during the second round all of the agency's estimates. Kaneohe General Services, Inc., B- 293097.2, Feb. 2, 2004.

More recently, the GAO concluded that there was nothing wrong with the VA telling each offeror in the competitive range where its price stood in comparison to the average of all current offers in the competitive range. Walsh Investors, LLC, B-407717, B-407717.2, January 28, 2013.  These decisions show that an agency can often give government contractors information more helpful pricing than to just “sharpen your pencil.”  Because there is no harm in asking the government for more information, contractors should ask.

Terry O’Connor is the Director of  Government Contracts with Berenzweig Leonard, LLP, a DC region business law firm. Terry can be reached at toconnor@BerenzweigLaw.com.

Make It Easier To Do Business With The Government

Although vendors can give the government a “proposal acceptance period” after which the vendor’s prices are no longer valid, the government can ask vendors to extend that period so the government can have more time to evaluate offers. When asked to extend, it’s risky to refuse because reviving an expired bid, although possible, is by no means a sure thing.

In a recent case, Global Automotive, Inc. agreed to several extensions of its bid acceptance period but refused to extend the period to February 29, 2012 saying that “Our prices are valid until 1 February only and we reserve the right to adjust prices thereafter.” After the government awarded the work to another vendor on April 10th, Global protested to the Government Accountability Office (GAO) arguing that the government should have allowed Global to “revive” its expired bid.

According to GAO, it is possible for a vendor to revive an expired bid and extend its prices after-the-fact, but not under these circumstances. Global’s refusal to extend the acceptance period had tried to give Global “the right to adjust prices thereafter.”  This unfairly put Global in the position of unilaterally setting the revived price which, if market trends had allowed lower prices, would have been unfair to other vendors.

As this case shows, it’s easier to simply extend acceptance periods than to have to rely on the government allowing you to revive your expired prices.

Author Terrence O’Connor is the Director of Government Contracts for the Washington, DC regional business law firm of Berenzweig Leonard, LLP.  He can be reached at toconnor@BerenzweigLaw.com.