Government Contracts Monitor

A Shakespearian Twist: First Let’s Kill All the Consultants

April 27, 2015

In a decision having potentially far-reaching implications, the Government Accountability Office (GAO) recently sustained an agency’s bar on offerors using proposal consultants to prepare offerors’ responses to sample tasks as part of the offerors’ technical proposals. Advanced Communications Cabling, Inc. ("ACCI"), B-410898.2, decided March 25, 2015. In addition to raising the spectre that other agencies might follow suit and similarly limit offerors’ ability to use proposal consultants, the case highlights the importance and need for offerors to maintain control over consultants and to ensure that submitted proposals reflect the specific offeror’s actual capabilities and proposed performance, and not just stock solutions generated by the proposal consultants.

Specifically, ACCI involved a solicitation (RFP) contemplating the award of up to 20 indefinite-delivery/indefinite-quantity contracts for a broad range of information technology services. The RFP stated that awards would be made on a best value basis, using six evaluation factors including technical, which was comprised of two subfactors – sample tasks and management. With regard to the sample tasks, the RFP directed offerors to describe their approach to performing three hypothetical tasks, and stated that the sample tasks "are designed to test the Offeror’s expertise and innovative capabilities to respond to the types of situations that may be encountered in perform[ing] a contract resulting from this solicitation." The RFP further stated that, in evaluating each sample task, the agency would consider the offeror’s understanding of the problem and the feasibility of the offeror’s proposed approach.

Importantly, the RFP expressly prohibited offerors from using consultants to assist them in preparing their sample task proposals. Moreover, the RFP required each offeror to explicitly certify, using a form provided with the RFP, that its sample task responses were prepared only by the offeror and its subcontractors that (i) had entered into contractor team arrangements with the offeror and (ii) were identified in the offeror’s management proposal. The RFP stated that the agency would not consider proposals which did not include the certification or included a false certification.

ACCI filed a pre-award protest challenging this prohibition on using consultants as being unduly restrictive of competition. ACCI argued that the prohibition was overly broad and placed an undue burden on small businesses.

The agency responded that the prohibition was intended to help ensure that the responses received would reflect the technical abilities of the respective offerors and their subcontractors, and not that of outside consultants who would not be involved in performing the contract. The agency reasoned that this restriction would reduce the risk of unsuccessful performance by making it more likely the technical evaluation would be based on the knowledge and abilities of the individuals who would actually be involved in performance.

GAO found this explanation reasonable, and denied the protest. Specifically, GAO stated that "Since the fundamental purpose underlying the sample tasks is to gauge an offeror’s ability to successfully perform the contract, it is reasonable to require that the sample task responses be prepared by the firms proposed to perform the contract, as opposed to outside consultants who have not been identified as members of the offeror’s team." GAO analogized the situation to cases in which GAO has sustained an agency considering only the experience and past performance of firms contractually obligated to meet the agency’s requirements.

While acknowledging ACCI’s argument that the RFP restriction did not actually require that the non-consultant personnel preparing the proposal actually participate in performance, GAO stated that "the government’s interest in simply reducing the risk of unsuccessful performance is a legitimate basis for including a restrictive solicitation provision." GAO further rejected ACCI’s small business arguments, stating that "The fact that a requirement may be burdensome or even impossible for a particular firm to meet . . . does not make it objectionable, so long as the requirement properly reflects the agency’s needs."

Importantly, the agency noted that in its experience use of consultants to prepare sample task responses results in the agency receiving identical responses from multiple offerors, despite the fact that the offerors’ teams are comprised of entirely different members. This assertion highlights a problem extending far beyond the facts at issue here, and provides an important caution to all offerors. Offerors need to retain control over their proposal consultants and stay actively involved in the proposal preparation process, to ensure that the proposal reflects the offeror’s actual capabilities and proposed performance, and is not something simply dreamed up by the consultants. The proposal is the offeror’s and something the offeror will have to live up to and perform. Moreover, offerors should ensure that proposal consultants are not working with other competing offerors on the same procurement.

It is unclear whether other agencies will follow suit and echo in their procurements the type of restriction on proposal consultants sustained here. However, offerors should be on the look-out for such provisions, and certainly should be prepared to challenge any broader restriction. More importantly, offerors should take seriously the agency concerns that led to the imposed restriction here, and stay involved in and maintain tight control over their proposal preparation process to ensure that the final proposal submitted reflects a solution tailored to the offeror’s individual capabilities and intended performance.