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Posted on Thursday, February 14, 2013

What Are Common Bid Errors to Avoid?

The procurement process is fraught with many procedures and regulations, and therefore submitting a flawless solicitation is a difficult task.  But there are some errors committed with enough frequency that contractors can readily learn from the mistakes of others. Recent protest decisions of the Government Accountability Office (GAO) show good examples of common errors that government contractors make in submitting proposals for a contract or task order.  Here are five common proposal errors for all contractors to avoid in the proposal process.

1. When in doubt, treat the words ‘may’ or ‘should’ as ‘shall.’
Last year, we reported a decision in which GAO treated the word “should” as “shall”, concluding that a solicitation telling offerors they “should” submit resumes of some personnel really meant that offerors “shall” submit their resumes. According to GAO, “terms like ‘may’ and ‘should’ are capable of expressing a mandate.” KPMG LLP, B-406409; B-406409.2; B-406409.3; B-406409.4, May 12, 2012.  In another case, “may” turned out to be “expressing a mandate” in a recent GAO opinion. The RFP warned offerors that the agency “may evaluate the past performance of subcontractors that would perform major or critical aspects of the requirement.” An offeror failed to provide past performance information for all subcontractors that would be performing the
work. GAO concluded that the agency properly downgraded the offeror for failing to do so, even though the information was not required.  According to GAO, offerors were on notice that it would be wise for them to submit past performance information on major subcontractors. Paragon Technology Group Inc., B-407331, December 18, 2012.
2. Confirm that the government has actually received your offer. 
 
It may sound elementary, but make sure the proposal you send to the agency is actually received.  A vendor carries the burden of proving that the government received its quote and any requested vendor verification of that quote.  In one noteworthy case, the vendor claimed it had sent its quote and follow-up verification to the agency by email prior to the deadline.  After the agency awarded the work to another contractor, the vendor checked with the agency to see why its quote had not been selected.  After doing an email trace, the agency informed the contractor that it had not received the vendor’s verification.  The company’s protest to GAO included an email chain with a message, allegedly sent before the agency deadline to the relevant contract specialist, containing the vendor’s necessary verification. In denying the company’s protest, GAO stated that “although the protester has presented evidence that it timely sent an email verifying information about its quote, there’s no question that the agency did not receive B&S’s email verification prior to the contract specialist’s deadline.”  In addition, “the record does not show that the offeror took steps to confirm that its email message was received.” GAO cited a number of prior decisions agreeing with an agency and rejecting a quote where vendors could not prove that the agency timely received it.  B&S Transport Inc., B-407589, December 27, 2012.
3. Put the right information in the right section of the proposal. 
 
It is a bad idea to make the agency evaluators hunt for required information. They can hunt for it if they want to, but they need not do so.  For example, an agency properly did not assign a “strength” to a company’s home office management and support portion of its proposal when that information did not appear in the relevant section of
its proposal, “but instead was presented in an executive summary of its past performance and in its discussion of its approach to design requirements.” Clark Construction Group, LLC, B-407334.2; B-407334.3, December 18, 2012.   One caveat here is that, although an agency may ignore information in an unrelated section, the agency “does not have license to ignore information in a proposal that is readily apparent.”  For instance, an agency’s evaluation of corporate experience required offerors to provide a
range of information, including “contracting method.”  One vendor described its project experience in both his proposal narrative and in proposal exhibits. Although the proposal did not address the contracting method as required, the information was included on the general contractor reference form in its proposal exhibits. GAO concluded that the agency should have considered that information.  J.R.Conkey and Assoc., B-406024.4, Aug. 22, 2012.
4. Don’t be ambiguous that you intend to comply with the solicitation requirements.
Some contractors’ proposals will be less than clear regarding their intent to adhere to the solicitation requirements, thus jeopardizing any chance of getting the award.  The FAR mandates that a proposal that “contains an ambiguity as to whether the offeror will comply with a material requirement of the solicitation renders
the proposal or quotation unacceptable.”  In one recent case, an agency required an offeror to provide an item that would comply with “ISO 17357.” One offeror
promised to comply with “ISO 17357:2000 (E) /eqvt. ASTM standard,” which on its face signaled that the contractor may choose to comply with an equivalent standard as opposed to the stated requirement.  GAO concluded that this “qualified designation created ambiguity regarding the offeror’s intentions and introduced
uncertainty regarding whether the offeror intended to perform in accordance with the terms of the RFP.” In other words, was the offeror promising to comply with ISO 17357:2002 (E) or in accordance “with what it viewed to be an equivalent ASTM standard?”  GAO agreed with the agency that the proposal was ambiguous and, therefore, unacceptable.  Kirti International, B-407612, January 16, 2013.
5. Promptly correct any bid deficiencies that the agency points out.
 
Contractors should consider it a gift when an agency points out a proposal error. In one case, an agency told an offeror that its technical approach did not include a necessary component. Rather than revise the proposal, the offeror responded along the lines that it could do the work.  After being told that its proposal remained
deficient on this technical issue and provided an opportunity to correct it, the offeror again failed to address it in its final revision.  GAO agreed with the agency that the proposal was deficient: “although the offeror insists that it will adequately perform the required work, it failed to adequately explain this approach in its
proposal as required by the RFP.” Tidewater, Inc., B-407483: B-407483.2, Jan. 8, 2013.
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.
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