Government Contracts Monitor

Once again, the Devil’s in the Details -- and the Documents

June 26, 2015

In procurement, even the most seemingly insignificant things can actually rob you of any chance of an award. If you want to win contracts, you need to pay attention to detail. This lesson was driven home once again in the recent Government Accountability Office (GAO) decision in Team Systems International, B-411139 (May 22, 2015).

The case involved an Army procurement of construction work at Fort Belvoir. The request for proposals (RFP) contemplated award to the lowest-priced, technically acceptable offeror, based on four evaluation factors: (i) past performance; (ii) management approach; (iii) technical approach; and (iv) price. When the Army’s evaluation found TSI’s proposal unacceptable on all three non-price evaluation factors and excluded it from the competitive range, TSI protested, challenging all aspects of the technical evaluation.

The past performance analysis is the most telling of the three with respect to the importance of focusing on details.

The solicitation expressly provided that an offeror could consist of two or more entities combined to form a "contractor team arrangement" (CTA), as defined by FAR subpart 9.6. In other words, the offeror could be a partnership or joint venture that would itself act as the potential prime contractor, or the offeror could be one entity acting as the potential prime with one or more others having agreed to serve as its subcontractors. See FAR 9.601. Under the RFP, an entity forming a CTA could rely on the experience and past performance history of any of its team members, but only if the offeror provided a teaming agreement that included, among other things, a description of the entity and how its members relate to one another (e.g. partnership, joint venture, prime/sub). The nature of the team structure dictated the manner in which past performance information would be evaluated. The RFP made clear that for prime/sub team arrangements, the prime contractor would be considered the "primary offeror" and would have to have completed at least 50% of the total number of projects submitted for past performance consideration. In contrast, the past performance of joint venture offerors could be based on the performance history of any of the entities involved in the venture.

Unfortunately for TSI, while it submitted a timely proposal that included a copy of its teaming agreement, its past performance submission did not meet the RFP requirements for the type of CTA created by its teaming agreement. More particularly, TSI’s agreement established a prime/sub relationship between itself and the other team members, largely because it specifically disclaimed the creation of a partnership or joint venture. GAO noted that TSI’s arguments to the contrary were based on a misreading of FAR 9.601: "[t]he mere submission of a teaming agreement neither determined a team’s status, nor prevented the agency from classifying the team as being based on a prime/sub relationship where, as here, [TSI] did not clearly identify its team’s desired status."

Relying on its misunderstanding, TSI submitted a total of four past performance projects, only one of which was performed by TSI (the other three had been performed by one of its team members). Thus, TSI only performed 25% of the projects rather than the required 50% and GAO had no trouble upholding the Army’s finding that TSI had failed to meet the RFP’s past performance requirements.

How could TSI have avoided this outcome? While there are certainly limits to "Monday morning quarterbacking," the decision does suggest a number of things that might have given TSI a fighting chance. First and foremost, TSI should have read the RFP carefully and made sure it understood what was required before developing its proposal strategy. Second, it should have made certain that its teaming agreement actually achieved the desired relationships between the team members.. Blind reliance on form or model agreements is a very risky strategy.

TSI’s choice to pursue its protest without legal counsel suggests that it might have taken the same approach when interpreting the RFP and preparing its proposal. While it’s far from certain that an attorney would have made a difference in this protest, better legal advice on the front end might have helped TSI avoid the missteps that gave rise to its need to protest.