If an Agency Does Not Answer Your Questions, Keep Asking

If used wisely and persistently, the Q & A part of the solicitation process can mitigate numerous contractor risks. One of those risks is the risk of winning a contract with a vague statement of work that exposes a contractor to overruns; another is the risk of losing a contract because a bidder misinterpreted ambiguous solicitation instructions to bidders.

As a recent GAO decision shows, it pays for a bidder to keep asking the agency to clarify a vague solicitation if the Q&A fails to do so and even, as another decision holds, if the government has said it will take no more questions.

In a solicitation that limited offerors to giving past performance references on no more than 3 projects, the RFP’s instructions were unclear about whether the offeror’s involvement in the 3 projects had to be as a prime or as a subcontractor. During the Q&A, several offerors asked for clarifications, but the government’s answers only confused things more. One offeror wanted a clear answer so, six days before the offer due date, it asked the government to further clarify its previous answer. After the government failed to do, the offeror submitted its offer but lost to a company that, under the vague instructions to offerors, the agency concluded had better past performance references and a slightly lower price.

The offeror protested to GAO and won in two ways. First, GAO recommended that the agency clear up the ambiguous past performance requirements via an amendment and get new offers, giving the protester a second chance to win the work. Second, GAO said the protester – a small business – was entitled to get protest costs and attorneys’ fees from the agency.

GAO’s decision is consistent with other protest decisions, one of which held that an offeror should keep asking the government questions even if the government has said it would not accept any more.

This persistence the case law demands seems to run against the business instincts of many offerors; they are reluctant to challenge the agency in the middle of a solicitation because it seems like a bad business strategy and may cause offense.

It is not. Keeping after the government for a clear answer can benefit a government contractor, win or lose. If it wins the work, its pre-award attempt to clear up an ambiguity generally entitles it to an equitable adjustment to pay for the work the government had only vaguely described in the solicitation. On the other hand, if it loses the work, it can argue that its continued questioning protects its right to protest.

In addition, bidders sometimes must take bidding risks because the risk of not bidding seems unacceptable. Especially in these cases, persistent questioning is a must and can help protect the company in an already challenging environment.  

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.

Know How to Enforce Your Rights For Winning Task Orders

Although task order contracts are common, the rights contractors have to win one are complex and vary widely depending on whether the task orders are under FAR Part 8, the GSA Federal Supply Schedule (FSS) or FAR Part 16, Government-wide Acquisition Contracts (GWAC). It is important, therefore, to know exactly what your rights are under your specific contract – FSS contract or a GWAC – and  how to enforce them, as a recent decision of the Armed Services Board of Contract Appeals (ASBCA or Board) shows.

The decision deals with one significant difference between FAR Part 8 and FAR Part 16 task order competitions: the GWAC holder’s significantly limited right to challenge how an agency misuses the solicitation process.  Unlike FSS contract holders that have broad rights to protest to the Government Accountability Office (GAO) and the Court of Federal Claims (CFC), GWAC holders’ right to protest to GAO or the CFC is very limited. The Board’s decision is, therefore, significant because it shows that GWAC holders still can sue the government, not as a protest but as a claim under the contract’s Disputes clause.

PAW and Associates submitted a task order proposal under its GWAC with the National Guard, but the contracting officer refused to award a task order. PAW filed a claim under the contract’s Disputes clause arguing that the government did not evaluate PAW’s task order proposal fairly and honestly and, therefore, violated PAW’s right to a “fair opportunity” to be solicited and to be fairly evaluated. The Board agreed with PAW, and concluded that GWAC holders can file a claim to enforce their “fair opportunity” right.

This decision shows just one significant difference in the task order solicitation process. There are others that contractors must be aware of. For example, GWAC contract holders must be given a “fair opportunity” to be considered for ALL task orders over $3,000.  In contrast, not all contractors on a particular GSA Federal Supply Schedule have to be solicited; although FSS Requests for Quotations over $150,000 must be posted on e-Buy, a contracting officer has the alternative of simply trying to get quotes from at least three Schedule vendors seeking a FAR Part 8 task order.

These differing and complex rules affect significant contractor rights to future business. The lawyers at Berenzweig Leonard LLP have decades of experience working with these rules and helping government contractors understand and enforce their rights.

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.

Bidders Must Not Delay Protesting Solicitation Amendments

Filing a protest before the agency even awards a contract can be a very difficult business decision because it seems like you are suing your potential customer to get the order. But sometimes that difficult decision must be made and, as we will see, might not be a bad business decision at all.

Recently, the U.S. Court of Appeals for the Federal Circuit (CAFC) set a firm timeliness rule for pre-award protests: If the agency amends the solicitation and in the process hurts a bidder’s chances of winning the contract, a bidder cannot wait until after losing the contract to protest that amendment. Any protest must be filed right away, before award. Failing to do so waives a bidder’s right to protest the amendment after award.

DoD issued a solicitation that initially made contract award dependent on the evaluation of the bidder’s proposals for a “basic contract” and 2 specific task orders. Only those offerors providing the best value for the basic contract would be considered for award of the task orders. Later, the agency issued Amendment 5 stating that only the basic contract would be awarded, that the task orders would be converted to sample task orders, that the proposals for task orders would be used for evaluating the pricing factor for the basic contract, and that no proposal revisions would be accepted.

After award, an unsuccessful bidder protested, arguing that the amendment was improper because it prohibited changes to proposals.

The appeals court concluded that the bidder should have protested Amendment 5 before award. By not doing so, the bidder had waived its right to protest after award. The court’s explanation was based on keeping the solicitation process fair: “a contractor with knowledge of the solicitation defect could choose to stay silent… If his proposal loses to another bidder, the contractor could then come forward with the defect to restart the bidding process, perhaps with increased knowledge of its competitors.”

As mentioned above, not all pre-award protests are bad business decisions. For example, a protest alerting the Contracting Officer to ambiguities in the solicitation might be welcomed and not counter-productive. Berenzweig Leonard for years has helped its government contract clients decide whether to protest pre-award and, if so, whether to protest to the agency, the Government Accountability Office, or the U.S. Court of Federal Claims. Although a pre-award protest can be a difficult business decision, it can also be the right one.

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.