Bidders Beware: Follow the Government’s Rules or Risk Losing the Contract

Read any bid protest decision issued by the U.S. General Accounting Office (GAO) and you will see that the losers are frequently reminded of their responsibility to submit adequately written and affirmatively stated proposals that clearly and unambiguously demonstrate their strengths in the areas specified by the contracting agency. Even incumbent contractors who have developed a relationship with the agency and have consistently demonstrated through their actions that they are qualified for future contracts are expected to follow the prescriptions of the request for proposal (RFP) or request for quotation (RFQ).

When ASPEC Engineering’s proposal for an award of a fixed-price contract to operate and maintain the water and waste water treatment plants at Lajes Field, Azores, was rejected as technically unacceptable by the Department of the Air Force, ASPEC tried to pull the incumbent card in its protest, which was filed February 17, 2012. ASPEC had been the incumbent contractor for the waste water treatment plant portion of the solicitations requirements.

All offerors were asked to describe their organization in a way that would demonstrate to the agency that successful performance could be ensured and to provide a description of the methods that would be used to ensure that their personnel were knowledgeable and qualified. But instead, ASPEC merely submitted an organization chart that identified the individuals who would participate in the performance of the contract and a resume for each individual. ASPEC neglected to clearly and unambiguously demonstrate how, and with what methods, the personnel would be employed to ensure performance.

ASPEC preferred to rely on the certification held by one specified individual, a lead operator who had the requisite water and waste water treatment plant operation certifications. ASPEC also relied on the notion that the agency should have already known that it had the necessary capability to perform under the contract — based on its performance in the past.

The GAO, however, rejected ASPEC’s bid protest on May 22, 2012. Its decision emphasized that an individual’s certification alone was insufficient to demonstrate how that individual would be used to ensure performance under the contract and that ASPEC’s role as the incumbent could not serve as a substitute for providing this detailed information.

ASPEC’s misfortune in this case can prove good fortune for both incumbent and new contractors who submit proposals to government agencies.

Any bidder, incumbent or new, can be assured that the agency will carry out a stringent technical evaluation, based solely on the information that a contractor includes in its proposal. The best qualified candidate may lose out because it failed to adhere to the proposal request’s specifications. There is no room for inferences in government contracts, so never believe that your strength can be assumed to exist. Instead, state it clearly and unambiguously.

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