Government Contracts Monitor

Amending the RFP Through a “Threatened” Pre-Proposal Protest

July 6, 2015

You are a small business, and believe you have the inside track on a substantial services contract opportunity. You have prepared your proposal, including pricing, and proposals are due mid-day tomorrow. You know the procurement is proceeding on a fast-track, with scheduled contract start-up in a month. However, the agency has just thrown a monkey wrench into the works by issuing a last minute solicitation amendment that creates an obvious defect in the RFP. You could go ahead, avoid stirring the pot and angering the agency, and keep your fingers crossed. Or, you could take the bull by the horns, try to get the agency to see the light and amend the RFP to resolve the problem and, if necessary, file a pre-proposal protest.

This was the real-life situation confronted recently by a small business offeror. The RFP referenced a Collective Bargaining Agreement (CBA), but did not include the CBA or any information regarding the wages and benefits payable under the CBA. Instead, the solicitation incorporated a standard local area wage determination covering the job classifications called for in the solicitation. Offerors submitted questions as to whether there was a CBA in place at the performance site, and if so, asked the agency to include a copy in the solicitation. At the last minute – just one day before the initial proposal due date – the agency finally responded, confirming that there was an applicable CBA in effect. This meant that under the Service Contract Act the successful offeror would be required to pay the wages and benefits contained in the CBA. But the agency refused to provide the CBA or information regarding the wages and benefits required under the CBA, on the grounds that the agreement was between two private parties – the incumbent and the union. This left offerors with an RFP that was patently defective and a bidding quandary as to what wage and benefits rates to use in pricing a proposal. Importantly, there was a risk that offerors would respond differently to this dilemma, and thereby gain a competitive bidding advantage. This risk was particularly serious if any offeror had inside information as to the actual CBA rates, for example, through teaming with the incumbent contractor.

Fortunately, the offeror consulted legal counsel and decided to insist on clarification up-front. The offeror first attempted to resolve the matter directly with the contracting office. It quickly became apparent that this would not work. The contracting office mistakenly believed that the information in the CBA could not be divulged and, in any event, was focused on maintaining the sanctity of the proposal due date in order to meet the transition schedule. The offeror quickly decided on a pre-proposal agency-level protest.

Before filing, the offeror provided agency counsel with an advance copy of its protest. As soon as agency counsel conferred with the contracting officer the agency agreed first to a 24-hour delay of the initial proposal due time, to permit review of the issues, and then to amend the solicitation to incorporate the CBA wages and benefits information. This resolved the problem and enabled all offerors to prepare their proposals on a common basis, and compete on a level playing field.

Most importantly, from the agency’s viewpoint, this prompt corrective action enabled the agency to maintain its procurement schedule, with only a short delay. Moreover, the agency was able to avoid the greater disruption and delay that a formal protest proceeding would have caused, as well as the risk of future protests and claims had the procurement proceeded uncorrected.

In short, the preparation of a pre-proposal protest and overture to the agency here resulted in a win-win scenario for all. Indeed, the agency, far from being mad, actually thanked the offeror for bringing this issue to the agency’s attention and enabling the agency to resolve the matter before proposal submission. Best of all for the offeror, it was selected as the winning offeror and was awarded the subject contract.

The bottom line is that a well-founded pre-proposal protest, properly pursued, can serve and further both an offeror’s competitive interests and the agency’s interests in obtaining competition on a fair and common basis, and avoiding subsequent protests and procurement delays.

* Jackson Kelly PLLC represented the offeror in connection with the discussed matter.