Avoiding a Government Contract Bid Protest
Bidding on a government contract requires more than just responding to the RFP. Avoiding a bid protest should be part of your analysis when submitting a bid to the federal government.
When the stakes are high, successful bidders typically have an attorney become part of their team for legal oversight and to look at the proposal with an eye towards a possible bid protest. Some common fertile areas include:
- Utilizing teaming agreements with small businesses
- Consideration of using the incumbent as a subcontractor
- Failure to use a teaming partner when you have little past performance
- 8a Firms using large businesses as subcontractors or teaming partners
Teaming Agreements with Small Businesses
There is no question that government agencies take small business set asides seriously. In fact a substantial amount of government opportunities are set aside for small businesses under FAR Part 19.
This tends to cause friction because large contractors are excluded from bidding. As a result, they seek out small businesses to serve as teaming partners. A bid protest is imminent when a small business unduly relies on a larger contractor to perform the contract. For example:
A large contractor seeks out an 8a firm to act as a prime on a new bid. However, the large business executes a separate agreement that essentially gives the large business control over the project.
A bid protest to the SBA may succeed if the protestor can show that the 8a firm could not completer the project without the help of the large business. A more critical issue occurs when the 8a prime hires the large contractors personnel to perform the critical parts of the contract.
Bid Protest Alleging Technical Deficiencies
Having no past performance can become problematic in a bid protest. A successful protestor may challenge the technical capability of the awardee. Although the agency has wide latitude to accept certain risks and trade-offs, the reality is that sometimes that government contracting agency forgets the criteria as set forth in the solicitation and rely solely on the proposal writing skills of the offeror.
A skilled GAO bid protest attorney may prevail on a bid protest because of the costly mistake. To overcome this fatal result, businesses that lack relevant past performance may want to consider using a reputable and experienced teaming partner or subcontractor.
The Federal Acquisition Regulations allow the contracting officer to consider a subcontractors past performance. However, you must still follow the traps discussed above.
As you respond to a government RFP, you should seriously consider having federal procurement attorney review the proposal for technical acceptability and bid protest avoidance. As mentioned above, if you are hiring a large subcontractor, you must make all efforts to discuss the roles played and articulate that the small (8a) prime is responsible for the key components of the bid if awarded – go into detail.
Government Contract Attorney
For additional information or help, contact the bid protest attorneys at Watson & Associates, LLC at 720.941.7200 or Toll Free at 1-866-601-5518.
