Infotech and the Law

Bid protests are a fact of life in the federal marketplace. The government, quite naturally, dislikes protests because they can be expensive and disruptive to the procurement process. Many contractors agree and are hesitant to sue a customer over a lost opportunity.Neither the procurement process nor government officials are perfect. So, there are times when a company decides the government has awarded a contract in error and a protest is necessary to protect the company from harm.In most of these cases, the government is required to produce the complete written record of the source selection process. Attorneys for the parties then review the record to determine if the agency made any procedural or substantive error that prejudiced the protesting contractor.Thus, a protest can afford a rare look at the detailed workings of a source selection. All the evaluation materials, from evaluators' work sheets to the selection authority's trade-off decision, typically are subject to scrutiny, as are the proposals of the relevant offerers.Reviewing a source selection record always is enlightening, but it is remarkable how often companies make the same mistakes in responding to government solicitations. Lessons gained from my experience with protests include the obvious and more subtle ones.Work the procurement before release of the solicitation. Evaluators inevitably have preferences and preconceptions. When assessing offers, they tend to view objective evidence in a way that conforms to these preferences and preconceptions.Thus, to best sell an agency on your company's solution, you have to pre-sell the agency through early exchanges of information. In particular, take the time to analyze and provide feedback to the agency on its requirements. Such analysis will allow you to both influence the formation of the final requirements and clarify areas of potential ambiguity.Make sure your proposal meets all key requirements. Even for requirements that are desired rather than mandatory ("shoulds" rather than "shalls"), compliance can be a critical competitive discriminator.If your solution cannot meet a particular requirement, be sure to explain the non-compliance in detail in either the initial proposal or during the negotiation process. Offerers typically have sound cost or technical reasons for not meeting a requirement, but too often fail to thoroughly explain those reasons to the agency.Avoid signs of arrogance in your proposal. A company can go overboard and harp on its alleged superior experience or claim an unparalleled understanding of an agency's requirements. At best, such hubris is annoying to evaluators; at worst, it may be perceived as a sign that the company is condescending and will be difficult to deal with during contract performance.This problem can creep into the proposals of incumbent contractors engaged in follow-on competitions. While incumbency can be a significant advantage, the advantage is best realized by demonstrating, through concrete details and examples, an understanding of both the agency's requirements and appropriate solutions.Pay special attention to questions or issues that arises during negotiations. The government is obligated to identify all deficiencies and weaknesses in your proposal during negotiations. If the government raises a particular issue, respond as if it might cost you the contract. Do not assume that an issue is insignificant or that the agency will accept a "trust me" response; support every response with hard data, and lots of it.Also, do not assume the agency has asked a stupid question and do not stubbornly stand by an approach that the agency clearly does not prefer. Accept gracefully the agency's view of the requirement and change your approach if possible.Identify and explain your proposal's best value features. Too often, offerers claim to provide best value but fail to explain why their proposal is superior.The key is to quantify and prove all assertions of best value. Successful offerers demonstrate how their solutions will optimize the agency's return on investment, focusing on the specific cost savings the agency will realize over the product's life cycle (even if life-cycle costs are not an evaluation factor).Take advantage of the changing procurement environment. Smart contractors are making greater use of alternative technical and pricing proposals and embracing the give-and-take that is now permitted in negotiations. In other words, be creative in making and modifying your offer in response to competitive pressures. You may improve your company's chances of being on the winning side of the next bid protest.Richard Rector is a partner in the government contracts group of Piper & Marbury LLP in Washington. His e-mail address is rrector@pipermar.com.