Government Contracts Monitor

Incumbentitis Strikes Again; Be Careful Out There

March 22, 2017

We have commented before, here and here, about the importance of avoiding Incumbentitis, a particularly potent affliction that can fatally undermine a contractor’s efforts to win follow-on contracts. The recent decision by the Government Accountability Office (GAO) in Interactive Technology Solutions, LLC, B-413665.2, B-413665.3 (March 1, 2017) reminds us that the contagion is still at large within the contactor community. Prudent incumbent contractors must take precautions to avoid contracting the disease.

The protest in question involved the award of a task order to Technology, Automation & Management, Inc. (TeAM) under a task order proposal request (TOPR) issued by the Department of the Army, U.S. Army Medical Research Acquisition Activity, for program management and technical management support services. The incumbent, Interactive Technology Solutions (ITS), protested the award, challenging, among other things, the agency’s evaluation of its technical approach.

ITS’s proposal received a rating of acceptable under the technical approach factor, based on the Army’s assignment of one significant strength and two weaknesses. One of the weaknesses relates to the agency’s conclusion that the proposal lacked adequate detail regarding the firm’s approach to meeting several of the tasks in the Performance Work Statement (PWS). The solicitation provided that proposals were to be evaluated to assess, in part, the degree to which the technical approach demonstrates, among other things, “[a] clear understanding of all tasks and how the approach is likely to yield the required results within the required timeframe” and “[a] technical approach which is creative and reduces costs, technical, or schedule risk to the Government.”

With respect to this weakness, Army evaluators noted that ITS had proposed tasks throughout the proposal in tables that were merely “paraphrased directly from the PWS requirement” and found that this approach “fails to provide a level of detail required for the Government to accurately assess the Proposal.” Further, the source selection authority (SSA) also faulted ITS for “often” stating: “As the incumbent . . .”, then referring to its current or past performance rather than how it proposes to meet the new requirement. The SSA went on to explain that the result of that approach was an extremely limited level of detail in ITS’ proposal that did not adequately address the highly technical nature of the requirement. The problem was compounded by what the agency characterized as a bad tactical choice: “[i]nstead of using the limited space in its proposal to address the PWS requirements, the protester made comments that added little value to the proposal.”

Thus, as is often the case when Incumbentitis strikes, the attempt to leverage incumbent status and past performance appears to have actually led ITS astray.

Given the GAO’s longstanding practice of declining to substitute its judgment for that of procuring agencies, it is perhaps not surprising that ITS’ challenge to the Army’s assessment fell on deaf ears. Indeed, this is one of the reasons that Incumbentitis can be so impactful: it leads to proposal writing that is particularly susceptible to agency interpretations that are routinely protected by such deference by GAO and other authorities.

ITS argued that its proposal did not consist solely of tables but also included a narrative section describing its understanding of the tasks, its approach to accomplish those tasks, and the benefits of its proposed approach. ITS also attempted to explain how the tables themselves detailed how the proposal’s narrative “mapped” to the relevant sections of the PWS and an explanation of the value, innovation, and efficiency offered by its technical approach. Finally, ITS pointed out that it only used the phrase “as the incumbent” only four times in its 19-page proposal and claimed that, in each instance, it explained how its incumbency would provide a benefit to the Army with respect to the specific technical approach ITS proposed.

All this was for naught. Based on its review of ITS’ proposal, GAO found no basis to sustain the protest. While GAO acknowledged that ITS’ proposal contained narrative descriptions of its approach, it found reasonable the Army’s conclusion that those short sections “did not provide an adequate level of detail on this highly technical requirement.” GAO also agreed with the agency that the tables contained only an “extremely limited” level of detail. At the end of the day, ITS’s arguments to the contrary were found to constitute a mere disagreement with the agency’s judgment, not evidence that the agency acted unreasonably.

This decision illustrates the primary danger of Incumbentits: it encourages incumbents to think that they can use a sort of “shorthand” to effectively convey their proposal without providing the same level of detail they would use if they were not the incumbent. Their assumption is that evaluators already know much of what they want to convey. To avoid making this mistake, incumbents should set aside any assumptions concerning what the agency “already knows” and make sure to fully articulate their proposed approach.

Attorneys

Lindsay Simmons