The 100 Worst Mistakes in Government Contracting

1. The 100 Worst Mistakes in Government Contracting Pre-Award or “A Race to the Finish Line” – Getting an Award Presented by: John Withers

2. Pre-Award Panel Discussion • Session Covers Chapters 1-16 and 28-29 • Solicitations, Chapters 1-5, 15 and 16 • Proposal Preparation, Chapters 6-10, 28 and 29 • Submission and Questions/Revisions, Chapters 11 -14 Page 2

3. Who said this? By failing to prepare, you are preparing to fail.

4. Who said this? By failing to prepare, you are preparing to fail. Page 3

5. Solicitations • Reading the Solicitation • Reading and Acknowledging Amendments • Asking about Ambiguities • Don’t Rely on Verbal Representations • Request a Post-Award Debriefing • Solicitation Types • Past Performance RFP IFB RFA RFQ Page 4

6. Prepare - Read the Solicitation • IFB, RFP, RFTOP, RFQ • Read it all, understand it all – ask if you don’t! • Clauses incorporated by Reference • Analyze and acknowledge amendments Page 5

7. Recognize the Hurdles in Solicitation Types • Three elements of contract formation • IFB – sealed bidding; may bind your company • RFP – negotiated procurement; may bind your company • RFQ – merely a quote not an offer; may not bind • Contract established by acceptance (written) or performance • Government may withdraw, amend or cancel before acceptance • If you let date for performance pass, purchase order may lapse and you will not be able to recover costs Page 6

8. Gather all your equipment for the Race - Ask Questions • Check Fedbizopps, econsultant2 (World Bank), etc., to make sure you have everything and that it is current • You must ask questions about patent ambiguities or assume the risk (could mean additional costs, not being responsive, etc.) • Latent ambiguities should be construed against the drafter in court (“contra proferentem”) • Submit questions in timely fashion (pre-award protest can be submitted before closing date) • Informal letter expressing dissatisfaction and request for corrective action can be viewed as a “protest” Page 7

9. Train, Train, Train – Don’t Quit Now! • Ask questions in writing and get answers in writing! • If Contracting Officer (CO) acknowledges an ambiguity, solicitation should be amended • Never rely on verbal representations • Verbal solicitations are allowed for micro-purchases or those under SAT • Spacesaver Storage Systems, Inc., best –value weapon storage systems and verbal assurance that laminate panels were acceptable (Page 4) Page 8

10. Post-award Debriefings • Used to furnish basis for selection decision and contract award • Per FAR 15-506 (d) – information to be provided by Government: (1) The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable; (2) The overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror; (3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection; (4) A summary of the rationale for award; (5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and (6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed. • Request within three days after receiving notification of award • Debrief may actually help avoid a protest • Always request as under CICA, you may also get an automatic stay of performance for GAO protest (31 U.S.C. § 3553) Page 9

11. Past Performance – What is your Track Record? • Past performance information – all relevant information regarding contractor’s actions under previously awarded contracts (on-going and completed) Includes conforming to contract requirements, cost control, adherence to schedules, including administrative, reasonable and cooperative behavior, businesslike concern for interests of client • Maintain database; keep contact information, check and update agency information • Fully provide past performance information and references Page 10

12. Race Rest Stop Questions? Page 11

13. Proposal Preparation & Submission • Freedom of Information Act (FOIA) • Comply With Submission Instructions • Base Offer on Evaluation Factors • Timely Submission • Ensure Compliant Proposals • CPAF Contracts & Award Fee Formula • IDIQ Contracts – Range of Options Page 12

14. Freedom of Information Act (FOIA) • FOIA requires an agency to provide all records to a member of the public upon demand except for those records that fall within an exclusion or exemption. • Most common exemption – Exemption #4 which exempts from disclosure “Privileged or confidential trade secrets and commercial or financial information”. • Typical use of FOIA request – obtain information about an incumbent contract that is up for re-compete. Page 13

15. Comply With Submission Instructions Most Common Solicitation Instructions: • Font size and type • Page limits • Technical and Cost Proposals in separate volumes • Hard copies and Electronic copies • Past Performance – specific number of references • Resumes – specific number Comply with all requirements stated in the solicitation/RFP. Page 14

16. Base Offer on Evaluation Factors • Evaluation factors established by the Government to evaluate competitive proposals. • Evaluation factors generally located in Section M of the solicitation. • Proposals should be written to specifically address evaluation factors, even “low value” factors. • “Best Value” award decisions – Government retains discretion to award to other than the lowest price offeror. Note: In today’s climate of severely constrained budgets, always assume that “Price” is an important factor. Page 15

17. Timely Submission Proposals must be received by the agency on time at the place specified in the solicitation. Otherwise, the proposal is likely to not be considered by the agency. Submit proposals on time. Enough said! Page 16

18. Ensure Compliant Proposals Proposals must comply with the Government’s specified requirements in order to be eligible for award. Potential “Red Flags: • Exception to or deviation from specified delivery schedule • Exceptions to any specified requirement • Proposing alternate products/services that do not meet requirements • “Alternate” proposals may be allowed but are subject to first submitting a fully compliant proposal Page 17

19. Heads Up Issues – Getting to the Finish Line • CPAF Contracts & Award Fee Formula • Heads Up: Read and understand the Award Fee Formula prior to finalizing the budget/cost proposal. • Indefinite Delivery Contracts – Range of Options • Heads Up: Requirements contracts and indefinite delivery-indefinite quantity (IDIQ) contracts are most common. Page 18

20. Post-Submission-What Can Happen Next • Material Misrepresentations • Collaborating and Set-Asides • Award Without Discussion • Discussions and Final Proposal Revisions • Mistakes Page 20

21. Misrepresentations • Proposal contents should always be clear and accurate. • A material misrepresentation is the basis for disqualifying a proposal and for canceling any contract that may have been awarded. • Should you discover that any statements made to the Government, whether intentional or inadvertent, either written or oral, are not accurate, notify the Contracting Officer immediately and provide a correction. Page 21

22. Collaborating and SB Set-Asides • Collaboration with small businesses - SB must have at least 50% of the cost of performance incurred for labor. A large business will help itself when helping the SB submit a compliant proposal. (Note: By collaborating with SBs under set-asides, large businesses open the door to asking that SB to serve as a subcontractor under full and open competitions, thus helping to meet Subcontracting Plan goals.) • When a team has a large number of collaborators, keep in mind FAR 52.215-22, “Limitation on Pass-Through Charges---Identification of Subcontract Effort” and 52.215-23, “Limitations on Pass-Through Charges”. If 70% or more of the total cost of the work is subcontracted, the prime contractor must demonstrate value-added to the effort. The 70% rule is also a mandatory flow-down to subcontractors. Page 22

23. Award without Discussions - “We Can Always Correct It Later” • Does an RFP contains FAR 52.215-1 or FAR 52.215-1, Alternate 1 • If the solicitation does not include Alternate 1, offerors may only get one chance to submit a competitive proposal. The Government MAY conduct negotiations in a procurement which does not specifically call out the need for them as it does in Alternate 1, but they can also make awards based on initial proposals. • Unless Alternate 1 is specified in the RFP, assume that your first offer is likely your final proposal submission. “We can always correct it later” may be a losing strategy. Page 23

24. Discussions and Final Proposal Revisions (FPRs) • Establishment of a competitive range and discussions with offerors can result in submission of multiple proposal revisions prior to submission of an FPR • Responses to questions, confirmation of discussions, and FPR’s should be just as timely and complete as the original proposal submission. • Remember to ask for a timely debriefing If you are notified that you (i) are no longer under consideration, (ii) have not been selected for award, or (iii) you are the successful bidder. Page 24

25. MISTAKES---Everyone Makes Them • Mistakes can be mutual or unilateral. -Mutual mistakes could result from reliance by both the Government and Contractor on specifications that proved to be inaccurate. -Unilateral mistakes by bidders could be simple clerical errors or inadvertent omissions/deletions and should be corrected upon discovery. • Unilateral mistakes discovered post-award may be corrected if the contractor can establish its intended bid and the mistake was so obvious as to have placed the Government in a position to have requested bid verification. • Errors in judgment are not mistakes. Page 25

26. Race Rest Stop Questions? Page 26

27. What To Take Away – “The Winner’s Circle” • Read the solicitation and understand the evaluation factors. • If a solicitation is not clear, ask questions. • Submit a timely, competitive, compliant initial proposal. • Read requests for additional information or final proposal revisions and ask questions if they are not clear. If something in your proposal was unintentionally misleading or unclear, acknowledge and correct. • Respond to questions and requests for final proposal revisions in a complete and timely manner. • Avoid mistakes by checking and rechecking your bid assumptions and proposal package. • Request debriefings on both winning and unsuccessful proposals. • Don’t forget about FOIA requests. Use the information to help plan future proposal submissions. • Past performance information can help document the potential for future performance capability. Page 27

28. End of Pre-Award Session Thank you for attending. Page 28