By Theodore Watson, Esq

Proposal writing  for a government contract means writing a winning bid that not only gets the government excited about doing business with you but also creating a winning RFP proposal that beats your competitor. There is only one winner. Most government Requests for Proposals (RFP) contain confusing language and incorporate contract clauses that many contractors are unfamiliar with.

To become successful, one must demonstrate confidence and understanding the procurement rules. Never run the risk of adding to much marketing fluff. Not only does the government hate it but it actually minimizes your credibility.

Agencies spot these types of bidders immediately and thus set the proposal package to the bottom of the pile. Effective proposal writers prepare RFP responses by implementing:

• A workable outline that includes all aspects of the award criteria
• A solid display of strong management and key personnel
• A convincing technical approach to solving the government’s problem
• Sound Quality Assurance Plans and risk management strategies
• A strategy that explains the industry problems and how to solve them
   

Federal Bids Must Overcome Past Performance Hurdles. When you bid for government contracts, it’s not all about price. There are more hoops to jump through. A potential bidder must show that the company has completed similar work in the past that is similar /relevant and within the past three years. The reality is that not all companies engaged in government bidding have alot of past performance with the government.

The truth is that you don’t need to. You only have to show that you have comparable commericial experience.

What if you don’t have any past performance at all? The best way to handle this is to seek relationships with large primes as subcontractors or even other small businesses. The Federal Acquisition Regulation allows the agency to consider your subcontractor’s past performance.

Government RFPwriting requires an in-depth knowledge of the rules. Unless you have an experienced proposal writer or proposal consultant that can guide you down the right path, you might just be spinning your wheels. Creating more of s focus on a strong technical ability and management staff can actually minimize some of the risk to the government if you don’t have the requisite past performance.  Lastly, if you lack past performance, government contract law allow the agency to trade off for a lower price.

Our government RFP and proposal writing consultants teach clients across the country how to better apply the rules in their favor.
Government Proposals Must Demonstrate Low Risk. You can be the best contractor in town. However, when it comes to federal bids, must demonstrate a strong risk mitigation or quality assurance plan. Remember, federal contracts take taxpayers’ dollars. Therefore, your government proposal must show that you pose the least risk to the agency. Most proposal consulting firms miss the part in the proposal writing process.

Do Not Carelessly Lose Your Award in a Bid Protest. When you hire a government proposal writer, you can be certain of there level of qualifications when you address avoiding a bid protest. Not only will you get a puzzled look but you will also find that most proposal consulting firms cannot address the issues that become fertile ground for a bid protest.

These include: Unduly relying on a subcontractor or teaming partner to perform the critical parts of the project; letting a teaming partner or subcontractor conduct all management for the project. These matters are considered the “kiss of death” when it comes to RFP proposals.

Know That Your Proposal Writer is Qualified. A substantial amount of companies seek the best in-house English writer or hire technical writers in hope of winning the ‘big contract.’ A few tips in knowing whether you have invested $20,000 to $50,000 in the right person should rest on a few things:

• What can they tell you about the regulatory rules governing a government proposal?
• Does his or her proposal writing experience include actually awarding government contracts?
• What suggestions does the proposal writer have to beat your competitor (best value to the government)

These questions must be answered without hesitation. Why? Because a successful RFP proposal must address these factors. Each government Request for Proposal contains numerous FAR clauses and additional obligations. A proposal writer must be able to talk about your experience or sources on compliance when you bid for government contracts.
The Cost of Proposal Writing for a Government Contract. Businesses sometimes try to haggle on the cost for government RFP consultants. The old saying that “you get what you pay for” actually applies here. If a contract is over a million dollars  AND you find an experienced proposal writing service or consulting firm, then the average cost of a government RFP response should be about $17K- $23K for a contract worth $1Million. For federal bids over $ 3 Million, expect to pay upwards to $54K.

The key is to find proposal consulting professionals that know what they are doing. In that sounds expensive, then consider what it should really take to get $1-30 Million Dollars. 

How to Propose a Strong Technical Proposal. An area of common weakness in federal contract bidders is the ability to offer an exceptional technical proposal. This is generally one of the highest graded criteria for award. You must convince the government that your team is competent and has the ability to effectively manage the project if your company is awarded the contract.  An example of how you can improve your technical capability is to:

• Specifically tailor each resume to meet the requirements of the statement of work. Never just submit an old resume
• Create bios of the key players and tell the government what they have done in the past
• Submit proof of certifications although the proposal does not ask for it

If you need proposal writing help for a government RFP, feel free to contact our experts for immediate help. Call  1-866-601-5518.

The President finalized acquisition rules through Executive Order to clarify that a contracting officer can award a sole-source contract to a service-disabled, veteran-owned small business (SDVOSB), even if there is more than one company that can perform the work.

The contracting officer can make the sole source award to that SDVOSB, as long as the officer expects to receive no bids from another SDVOSB, according to the amendment to the Federal Acquisition Regulation. The new rule was published in today’s Federal Register.
Government contracts for SDVOSB will more than likely soar given this new initiative. If you are a SDVOSB, you should seeking competent advice and not fall prey to ethical violations and FAR violations. Contact the attorneys at Theodore Watson & Associates, LLC for more information or call 1-866.601-5518.

By: Theodore Watson, Esq

Government contracts are a very lucrative business. However, learning how to acquire projects takes time, effort and investment. Proposal writing for government contracts is by no means a simple process. However, if you attempt to respond to the agency’s Request For Proposal, you will have to bring more to the table than just having a good technical writer.

Many people will frown at this comment but as former government contracting officials and members of source selection teams, we have written eloquent proposals and perfected efforts by technical writers – we know firsthand that only the proposals that have substance and give the government what they need to know actually win the contract. There is a big difference.

As a general rule, there are ten basic principles that will put you on the right track to success in government RFP and proposal writing.

1. Always learn, learn and learn again the nature of the government’s problem. If you cannot understand and respond to the agency’s problem, you simply will end up with an eloquently written document with no substance and lacking depth. The federal government publicizes its opportunities in a series of solicitations. As an effective proposal writer, you have to read, reread and understand the solicitation.   For example, average responses to a Request For Proposal ( for medical supplies) simply inject paragraphs of how committed to customer service the bidder maybe; then, the bidder simply submits its pricing and past performance. The winning proposal uses a different strategy. Instead of drowning the RFP response with ‘fluff’, the experienced proposal consultant will advise his client to first discuss the industry and problems associated with this particular industry including problems experienced by other customers – this sets the stage for letting the government know that you are ahead of the competition. You then describe how you can prevent these problems and describe what if anything you will do to minimize risk (this substantiates cost and shows additional value to the government.)
2. Never think that the government has no idea of what your service or product costs. Successful bidders understand the theory of the government estimate. The procurement rules require the government to establish some sort of estimate. Most agencies do their homework. However, some still use the outdated methodology that puts potential bidders at risk. Caution: The method arriving at the government estimate does not always work in your favor – the agency should conduct research in the commercial sector to see what similar products and services cost. Unfortunately, many agencies simply rely on other agency pricing to come up with the government estimate.
3. Always focus on beating your competitor. This is a mindset that swallows up inexperienced proposal writing staff. Many simply focus on responding to ‘only what the solicitation calls for’ and nothing more. At best, this line of thinking will get you within range but not win you the award.
   Our proposal writing consultants teach our successful clients to focus on beating the competitor – nothing else matters. Yes, you always have to respond to the criteria accurately as set forth in the solicitation. However, this sets the stage (and a common trap) for only the basic requirements. You simply have to include more.
   As you respond to each section of the RFP, always ask yourself, “what is your adversary going to write?”  If you don’t ask this question, you will undoubtedly find out during a debriefing of notice of non selection for the bid.
4. You must have a thorough understanding of the procurement rules. To say otherwise is analogous to applying for a job at a large corporation without knowing anything about the company. Many companies hire proposal writers who have no clue, or even a basic understanding of the rules involved with procurement.
   For example, many government contract proposals require you to discuss your teaming partners and subcontractors. More specifically, to discuss the roles and percentages of the contract. Many companies dive into this head first without knowing the rules and laws of teaming and subcontracting.  The result is that many companies subject themselves to losing a bid protest for violation of the NAICS standards.
5. Pricing – Always be modest on profit. The old saying that you can price yourself out of business applies to government contracting.  As experienced proposal writing consultants, we advise our clients to stay within certain allowable percentages depending on the industry. However, a good proposal writing strategy is to substantiate your pricing by explaining critical processes and the costs associated with them.
6. You must describe the ‘horsepower’ behind your company – Aka, Management. This is a critical part of the proposal writing process. Successful bidders learn to how to write effective resumes specifically for federal RFPs.  Simply put, traditional resumes don’t lead to awards. The government wants in-depth information about the ‘top brass’ in your organization. Remember, technical proposals are weighted heavily when bidding on government contracts.
7. Never write about your weaknesses. This is one of the most common traps in government contract proposal writing. When you see language in the solicitation that asks you to describe past problems and how you handled them – warning, tread lightly.
   For example, if you missed project schedules in a previous construction project, you may simply want to use another project for past performance and discuss it. The government does not want to award a construction project to a company that has a history (even if only once) of missing deadlines.
8. Never expect to get a million dollar contract for pennies. Many successful bidders invest in experienced proposal writers. Although the skill of a technical writer is critical to the proposal writing process, there is a huge difference – experience and knowledge of the rules.
9. Successful bidders invest the time and effort in securing skilled and experienced government contract proposal writers. Note: There are overrated technical writers that charge outrageous prices. However, there are also experienced ones that are worth their weight in gold.
   Tip – for a million dollar contract, you should expect costs to run about 4%; for a $100,000 contract you should expect to pay between $6000 and $7500 for a solid proposal writer that knows federal government contracting
10. Learn how to pick qualified proposal writers.  The internet is swamped with proposal writers for government contracts. However, picking the most qualified ones is the tricky part. Many shoppers typically want to know how many proposals a person has written in that specific industry; or what is their success rate.
    To be frank – none of this matters!! Why? Solid proposal writers for government contracts should be able to write a response to a Request For Proposal regardless of the industry – there is simply a set strategy and approach to writing government RFPs – this is similar to asking an expert car racer what experience he or she has driving a Ford versus a Chevy.
     

When you are looking for QUALIFIED PROPOSAL WRITER OR CONSULTANT, here are relevant points to consider:

• Level of experience in federal government contracting
• Have them describe important issues when writing about best value
• The level of experience they have in responding to government RFPs that involve teaming partners or subcontractors
• Ask what does the government need to know about a prospective bidder to set a high impression

Understand that prior win rates do not guarantee a win in this effort. Most businesses seek proposal writers based on their win rates – only to lose in this particular effort. As government contract lawyers, we also get the same question – what is your win rate? Not only is this misleading but the analysis and inference of prior win rates can be negative.
Each RFP is unique and the focus must be specific to the proposal at hand – how are you going to attack the solicitation and submit a winning proposal on THIS project?

• Point – agencies look for different things in their solicitations
• Point – Not all agencies follow the FAR (See FDIC)
• Point – Rating criteria is different in virtually all RFPs
• Point – Lowest price (alone) is not the statutory requirement for award in federal contracts

High- Caliber Advice Sets You Apart from Your Competitors

As you venture into the market for a government contract proposal writing consultant, you are investing in someone that can convince the government that you are the best candidate for award. This is a skill that goes over and beyond proofreading and editing.  Proposal writers must understand and have experience in the actual rules of engagement and the pitfalls associated with losing an award on a bid protest. This foresight sets you apart from your competitors and automatically increases your caliber and probabilities of being successful.

Contact Us

If you are in the market for in-depth advice and guidance in federal government contract proposal writing, contact Theodore Watson & Associates, LLC today at 1.866.601.5518.

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.

By Theodore Watson

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.

The Small Business Subcontracting Plan Program is based on Public Law 95-507  that was passed in 1978 to ensure that prime contractors further the goal of increasing participation of small businesses in federal procurement. Per Federal Acquisition Regulation (FAR) Subpart 19.7, any contractor receiving a contract for more than the simplified acquisition threshold must agree in the contract that small businesses, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns will have the maximum practicable opportunity to participate in contract performance consistent with its efficient performance. See also Section 8(d) of the Small Business Act (15 U.S.C. 637(d)).

The government requires the adoption of FAR Clause 52.219-8, ‘Utilization of Small, Small Disadvantaged and Women-Owned Small Business Concerns, in all purchases/contracts over the simplified acquisition threshold that offer subcontracting opportunities. The legislation requires certain prime contractors and subcontractors to prepare formal subcontracting plans. The law also specifically requires submission and implementation of a subcontracting plan for contracts exceeding $550,000, including options, $1 million for construction, as well as reporting and record keeping for contractors with plans.

Offerors submitting a proposal in response to the government´s solicitation shall submit a small business subcontracting plan that complies with the requirements of FAR Clause 52.219-9. The following outline for a subcontracting plan satisfies the requirements implemented by public law and supplemented by the FAR.
 

Subcontracting plans in federal government contractshas been an ongoing problem throughout the United States. FAR Sub-part 19 of the Federal Acquisition Regulations require government contracts awarded to larger business and over $550K to have a mandatory subcontracting plan included in the prime contract. The reason is to ensure that some of the contracting dollars are passed down to small businessesthat are service disabled veteran-owned, HUBZone, Small Disadvantaged Businesses, Woman-owed and Veteran-owned.
 

Goals Versus Legal Obligations

Although it is true that subcontracting plans only set forth goals, each prime contractor now has a legal obligation (through the expressed terms of the prime contract) to demonstrate a good faith effort to seek out qualified subcontractors in the various socio-economic categories (service disabled veteran-owned, HUBZone, Small Disadvantaged Businesses, Woman-owned and Veteran-owned).

To amplify the legal obligation, primes have to submit reports ( SF 294 and 295) in addition to other reports showing their interaction with small businesses. Good faith must be present or the prime contractor runs the risk of breaching the contract. As stated in 15 U.S.C. 637(d)(8), any contractor or subcontractor failing to comply in good faith with the requirements of the subcontracting plan is in material breach of its contract.

Further, 15 U.S.C. 637(d)(4)(F) directs that a contractor’s failure to make a good faith effort to comply with the requirements of the subcontracting plan shall result in the imposition of liquidated damages.

Example

A good example is when a prime contractor uproots an existing subcontractor and awards to another large business that offers better pricing. The prime will more than likely argue that it has a right to seek cheaper bids, and has no guaranty of work to the existing subcontractor.

A closer look at this response introduces the very heart of the problem. Although the prime has the right to seek cheaper bids, this right is still subject to any limitations set forth in the prime contract with the agency.
To amplify even more, the example of a prime that has a prime contract for $1 Million dollars has a subcontracting goal of 3% to a service disabled veteran small business. It then places bids out and receives a quote from a large business for $28,000.00 and a bid from the small business for $30,000.00 who should prime award to? If the prime awards to the large business simply to save $2,000.00 is there a bad faith argument?  The answer should be apparent.
 

Legal Rights for Small Businesses

Revisiting the lack of privity of contract excuse from government agencies, one has to ask what rights the small subcontractor actually has. Given the language of federal statutes and Federal Acquisition Regulations (FAR), it appears that subcontractors are third party beneficiaries to the terms of the prime contract. For small businesses that attempt to, or have already secured, work under the subcontracting plan, bad faith on the prime contractor’s part triggers the small businesses’ legal rights. In other words,  third party beneficiaries have legal rights in contract law ( when their rights vest).  

More importantly,  the rules tend to give  rise to the contracting officer’s legal obligation to enforce the terms of the contact.  More specifically, to ensure that large prime contractors do no just ‘blow off’ their responsibility to pass on work to small businesses. For small businesses effected, having a government contracts lawyer that understands the underlying principles of subcontracting plans can be the difference between getting work or not.
 

The Problem

Large businesses that bid on full and open government contracts have no problem submitting a subcontracting plan. However, when the bid is awarded, most large prime contractors know that government agencies genuinely do not follow up or enforce the statutory requirements for subcontracting plans.  Therefore, after the contract is awarded, a significant amount of problems occur. As a result, small businesses are left  to fend for themselves.

Privity of Contract Excuse

When small subcontractors are placed in a tough situation, the contracting agency typically responds by claiming that the problem is out of its hands because there is no privity of contract. As a result, small subcontractors are left to fend for themselves.

Upon careful review, it can be quite easy to see that the contracting officer (the teeth for the government) does in fact have legal authority to inquire into the prime contractor’s good faith effort to meet an expressed requirement within the prime contract.

For the government to claim there is no privity of contractand authority to inquire into the prime’s actions is neither supported by law nor has any plausibility. The statute in essence confers privity when it states that if the prime does not in good faith meet its requirements for subcontracting plans, then it is in material breach of contract. If the contracting offer does not oversea this ( and enforce legal rights ) then who will?

GAO Reports

The Government Accounting Office  (GAO) has submitted reports addressing this very problem. In fact, it made stern recommendations to at least two agencies to implement more oversight into their government contract subcontracting goal obligations.

Nationwide Problem for Small Businesses

As primes start to perform the contract, they undoubtedly seek ways to increase profit. However, although this may be a sound business judgment decision, they must still act within the boundaries and obligations as set forth in the four corners of the prime contract. Without oversight small business across the nation fall prey to bad business practices and are left without assistance from agencies such as the Small Business Administration (SBA).
 

Minimizing the Problem

Small businesses should seek to enforce their rights under subcontracting plans. Having a government contract attorney that can help  to enforce your rights is a viable solution. In addition, small businesses should seek out federal contracts awarded  to large primes and market more aggressively for subcontracting work.

Keeping the agency aware of the issues in writing can also put the agency on notice to act. Although enforcing subcontracting plans has become a national problem, the solution has to start at some point. Education and training to small businesses make them more aware of their rights.

For additional information or help, contact the government contract law attorneys at Theodore Watson & Associates, LLC or call 720.941.7200.

As a government contractor, your ability to collect prompt payment from the federal government is essential to your success.  The Federal Acquisition Regulation includes law that supports timely payment by the government.  As government contract attorneys, we sometimes have to represent contractors by assisting them in receiving payment for unpaid invoices.

Prompt Payment

The Prompt Payment Act (PPA), as enacted by Congress requires the government to pay invoices by the required due date. As practical matter, the federal government usually pays invoices within 30 days. However, this does not always happen.

Conditions of Payment

If you don’t submit a proper invoice then, you will have a hard time demanding payment and interest.  Most contractors are now signed up with Wide Area Workflow. This process is designed to speed up payment of invoices. Invoices for progress payments  should be certified under FAR 52.232-5. Nevertheless, the government must notify you if you have submitted a defective invoice.

Am I entitled to Interest?

The Prompt Payment Act does not allow interest if the government and the contractor do not agreement on the amount invoiced (disputed invoice). Also, contractors should be aware that if they are paid for work that does not conform to the contract requirements, then the government may be entitled to interest.

Subcontractor payments

The prime contractors on government projects are also supposed to pay subcontractors within 7 days after receiving payment from the government. Failure to do this will incur interest.

However, prime contractors are not required to pay a sub contractor for work that is not timely or accurately performed under the subcontract. Some government contract attorneys forget this point when dealing with prompt payment act issues, and focus solely on whether the government has paid the prime.

Subcontractors should be aware that complaining to the government will not solve the problem simply because the government has no privity of contract with subcontractors.  The basis for payment is the terms and conditions of the subcontract not the prime contract.

What can I do to ensure that the quality of work does not harm prompt payment?

As a matter of practice, you can keep in close communication with government contracting and quality assurance personnel. Written communication and project reports can reduce prompt payment act issues.

For information, feel free to contact our office or call us at 720.941.7200 for representation.

Large businesses tend to sabotage their efforts and ultimately lose out on federal bids. As compared to small business that are limited in funds, larger businesses make careless mistakes when submitting a government RFP.

Common mistakes include:

• Mistakenly believing that they can control the federal market
• Simply ignoring the rules in the solicitation
• Not telling the government how it will solve the problem
• Arbitrarily changing the length of the proposal
• Not allowing the proposal to speak for itself

Who is in Charge?

Simply put, the government is the final decision-maker of who gets the bid award. Large businesses tend to forget this. The result – catastrophe.

Large manufacturers of IT equipment tend to be in the majority when it comes to ignoring the rules. Others include large construction contractors bidding on high-dollar construction projects. A simply word of caution is “never believe that you can outsmart the 800-pound gorilla.”

RFP Writing 101

When writing to a response to a government request for proposal, the simply questions to ask yourself. They include:

• What problem is the government trying to solve?
• Can you solve the problem?
• What is the best way to communicate that you can solve the problem?
• What special or unique requirements does the agency ask for?

If you can clearly answer these basic questions, then the RFP response should become less difficult.

Common Mistakes Made by Large Businesses

When it comes to federal contract RFPs, many large organizations take the ‘gamble’ by employing technical writers that have not been adequately trained as to how the government thinks and the rules involved. For example, many have no clue of the difference between FAR Part 12, 13 or 15. These are basic requirements of writing a proposal for the federal government.

Other mistakes include:

• Focusing on the lowest bid on a best value bid
• Trying to submit required information against the agency schedule
• Assuming that a technical writer’s editing alone will win federal contracts
• Careless focus on showing off the company’s brand instead of what is best value to the government
• Focusing on price and past performance ONLY (this is a fatal mistake)
• Adding too much “fluff” in the proposal

As a former federal contracting and small business official, I have observed source selection teams and how they review submitted bid proposals. Sometimes the facial expressions can be very interesting. Expressions range from simple smirks, to simply frustration due to “trying to pull one on us” attitude.

Solving the Problem

Proposal writing is about solving the government’s problem. Nothing else matters! When a contracting officer reviews the RFP response, this is exactly what they look for.

• Focus on solving the agency problem
• Tell them how you will do it
• Include risk mitigation solutions
• Never try to make overwhelming profit margins

The agency wants to know who will be in charge and want to know each key person’s qualifications. Large businesses fail miserably in this aspect of the proposal. Thus, the technical aspect suffers.

Performance Based Service Contracts

Large businesses seem to believe that any quality assurance plan will do when writing a government proposal. The federal agencies are now required to write statements of work (SOW) or performance work summaries (PWS) to performance based standards (to the maximum extent possible).

Large contractors must ensure that their proposal writers are trained in this aspect of responding to solicitations. Our office frequently conducts training in this area.  This can make or break your technical proposal writing success.

Subcontracting Requirements

Large federal contractors MUST submit a subcontracting plan if the award is greater than $500,000.00. Contractors must take this requirement seriously.  The Congress makes it clear that small businesses must get their fair share of contracting dollars.

Many large contractors are getting smarter in this area. However, so is the government.  Common mistakes made by large businesses include:

• Seeking out small businesses at the last minute
• Not demonstrating a genuine and credible internal subcontracting program
• After the contract is awarded they never focus on acquiring the stated goals

Agencies are tightening up on this previously ignored requirement. Contractors must now demonstrate its efforts to meet subcontracting goals. Failure to accomplish may:

• Result in the government’s refusal to exercise option years
• Losing credibility with the agency

Further Assistance

If you are a medium or large business seeking consultants in federal contracting, contact Watson & Associates, LLC at 720.941.7200.

SBA Contracting Opportunities U.S. Supreme Court Government Contract Consultants FAR

By: Theodore P. Watson

Attorney at Law, Government Contracts

Many government contractors have taken advantage of the SBA 8a Business Development Program due to the ability for sole source awards and other benefits. However, there is an increase in early graduation and terminations from the program. Understanding the process and how to reply to the SBA is key to your survival in the 8a Program

SBA has Discretion to Terminate a Participant

The SBA, at its own discretion, can recommend a small business for 8a termination for various reasons. However, its actions are not exempt for checks and balances. Small businesses sometimes are surprised at such a recommendation. However, you simply have to deal with it or risk guaranteed termination. This is where the help of an experienced 8a termination attorney can be of benefit.

Proper Early Response is Critical

When the SBA sends you an initial termination recommendation letter, you must exercise great caution in how you respond. Your response MUST be timely and sufficient. Of importance is that the SBA is not required to keep asking you for information. Failure to respond within the 30 days can be itself a reason for actual termination. Although you might have a valid excuse, chances are that you will not prevail on appeal.

Reasons for the SBA 8a termination can include:

(a) SBA may terminate the participation of a concern in the 8(a) BD program prior to the expiration of the concern’s Program Term for good cause. Examples of good cause include, but are not limited to, the following:

(1) Submission of false information in the concern’s 8(a) BD application, regardless of whether correct information would have caused the concern to be denied admission to the program, and regardless of whether correct information was given to SBA in accompanying documents or by other means.

(2) Failure by the concern to maintain its eligibility for program participation.

(3) Failure by the concern for any reason, including the death of an individual upon whom eligibility was based, to maintain ownership, full-time day-to-day management, and control by disadvantaged individuals.

(4) Failure by the concern to obtain prior written approval from SBA for any changes in ownership or business structure, management or control pursuant to §§124.105 and 124.106.

(5) Failure by the concern to disclose to SBA the extent to which non-disadvantaged persons or firms participate in the management of the Participant business concern.

(6) Failure by the concern or one or more of the concern’s principals to maintain good character.

(7) A pattern of failure to make required submissions or responses to SBA in a timely manner, including a failure to provide required financial statements, requested tax returns, reports, updated business plans, information requested by SBA’s Office of Inspector General, or other requested information or data within 30 days of the date of request.

(8) Cessation of business operations by the concern.

(9) Failure by the concern to pursue competitive and commercial business in accordance with its business plan, or failure in other ways to make reasonable efforts to develop and achieve competitive viability.

(10) A pattern of inadequate performance by the concern of awarded section 8(a) contracts.

(11) Failure by the concern to pay or repay significant financial obligations owed to the Federal Government.

(12) Failure by the concern to obtain and keep current any and all required permits, licenses, and charters, including suspension or revocation of any professional license required to operate the business.

(13) Excessive withdrawals, including transfers of funds or other business assets, from the concern for the personal benefit of any of its owners or any person or entity affiliated with the owners that hinder the development of the concern ( see §124.112(d).

(14) Unauthorized use of SBA direct or guaranteed loan proceeds or violation of an SBA loan agreement.

(15) Submission by or on behalf of a Participant of false information to SBA, including false certification of compliance with non-8(a) business activity targets under §124.507 or failure to report changes that adversely affect the program eligibility of an applicant or program participant under §124.204 and §124.112, where responsible officials of the 8(a) BD Participant knew or should have known the submission to be false.

The SBA 8a Termination Letter

If you receive notice of SBA recommendation for an 8a termination or for early graduation, you must act quickly and concisely. You must respond within 30 days of receipt of the letter.

A key aspect of the 30-day response is that you must respond with a thorough explanation to support your position. In addition, you must support your position with enclosed documentation. A simple and unsupported explanation will not suffice.

To protect your rights you should consider:

• Consider retaining an attorney
• Ensure that you respond with a detailed response (short letters will not suffice)
• Provide as much documentation to support your response
• Provide copies of checks, tax records, letters from your CPA (if applicable)
• You can also request reconsideration in addition to the above points

If you fail to provide a detailed and supported response, you can lose your 8a termination appeal very easily. This can result in actual termination. Alternatively, the SBA has an implied duty to act reasonably. The congressional intent of the SBA is to assist and help small businesses to succeed and not engage in arbitrary and capricious decisions.

In a perfect world the SBA should request additional information if your response to the termination letter lacks information. However, the case law suggest otherwise.

The bottom line is to “get it right the first time.” Consult with an experienced 8a termination lawyer to protect your rights.

Legal Authority is Key to a Termination Challenge

The SBA does have the ability to make a ‘business judgment’ decision in the best interest of the public. It has a lot of latitude to take adverse actions. It is important to know that the standard on appeal is not to substitute the decision. Instead, an appellate court is charged to decide only if the SBA abused its discretion or acted contrary to law. The benefit of having experienced counsel cannot be overemphasized.

The Termination Process

After you respond to the 30-day recommendation letter, the SBA may choose to move forward with its recommendation to Washington D.C.  At the headquarters level, a final agency decision will be in the form of a termination letter from Washington D.C.

After receipt, you then can appeal the decision. Time is of the essence.  Many businesses take on this complex task on their own only to find out that there also is a legal analysis that could save the day. Failure to strengthen your appeal with legal analysis can be disastrous.

If you are subject to early graduation or actual 8a termination from the SBA 8a program, seek help from a government contract law attorney quickly.

For more information, contact Watson & Associates, LLC at 720.941.7200.

Denver, Colorado (June 6, 2009) — The legal industry isn’t known for its innovative approach to doing business, but Denver-based Watson & Associates, LLC is seeking to change this perception by adapting its business model to better serve Colorado companies during the economic downturn.

A boutique law firm specializing in business and government contract law, Watson & Associates is leading the industry by offering comprehensive legal services for a flat monthly rate.

“We are responding to the current market situation by proactively restructuring our business model to better meet client needs,” said Theodore Watson, founder of Watson & Associates. “Our goal is not merely to help Colorado businesses survive the recession, but to actively grow their business year over year.”

Small- and medium-sized businesses across the state are feeling the impact of the recent economic crisis. “Identifying opportunities that can directly impact the bottom line is crucial to sustaining your business during a recession,” said Watson.

The firm hopes its innovative approach to helping clients reduce the staggering fees typically associated with legal advice will strengthen the firm’s position as a business partner, rather than a line item in the budget.

Watson & Associates is hosting a day-long workshop focused on strategies to help businesses increase revenues with federal contracts. The workshop will be held at 1001 S. Monaco Pkwy in Denver, Colorado on June 19, 2009 from 9:00a.m. to 3:30p.m. Cost to attend is $175 per person and includes lunch.

About Watson & Associates, LLC

Watson & Associates, LLC is a veteran-owned, Denver-based law firm serving leading companies across the United States. The firm helps clients minimize business litigation, solve contract law matters, and become more successful in federal government contracts.

MEDIA CONTACT:  For further information please contact Rosie Branstetter at (303) 880-7105 or via e-mail branstetterr@theodorewatson.com

Government Contract Attorney & Consultant

I have seen many articles suggesting that getting government contracts is easy. See for example “how to get government contracts the easy way.” The truth is that government contract award takes some work and is probable.

Make no mistake about it; nothing is easy about federal contracting.

Large contractors are seeing a slight decline in federal contracts. However, they are currently wondering why.

The answer is two- fold:

• Most large contractors can afford to pay a staff of Request for Proposals (RFP) writers to crank out canned responses from RFP writing programs. The government is getting smarter and is looking for better value and more competitive response. Do large contractors understand how to accomplish this?
• Large businesses do not create genuine relationships with small businesses. Many times, a contractor will normally wait until an opportunity is posted, then scramble to find a small teaming partner or subcontractor. Again, agencies are becoming smarter at this and tend to shy away from large businesses that try to ‘pull a fast one.’

Getting Federal Contracts; How to Start on the Right Path

Government Contracting is a special ‘animal’ that requires study and dedication. The only legal requirement in getting government contracts is to be registered in the Central Contractor registration website (CCR). So many companies automatically start the road to the government in the same fashion as they would market in the commercial sector. This not only incurs unnecessary costs but at the end of the day, the probability of award does not increase.

• Just like any business venture, you must know the market before you start on a wild goose chase
• You have to know what agency has bought, and will be buying, your service or product
• Only after acquiring the above information has your path to success began

Federal Small Business Goals

Federal small business goals do not mandate an award to your company. As compared to state and county contracts, the Congress has tasked DOD to reach certain small business goals when awarding government contracts. For example, agencies have a 23% goal for contract awards to just small businesses. The following categories also have goals:

• Service Disabled Veteran-Owned Small Businesses (SDVOSB)
• Small Disadvantage Business (SDB)
• HUBZOne ( Historically Underutilized Business Zone
• Veteran-Owned
• Woman Owned

However, depending on who is speaking, there is a big misunderstanding of goals versus law. The government very seldom meets certain goal categories (namely HUBZOne and Service Disabled Veteran Companies.) Does this mean that the government has broken the law? Of course not!

The point here is that never want to assume that simply because your business has a certain status that you will get government contracts. As mentioned before, the key to getting government contracts is:

• Knowing the market and who are your targeted customers
• Building relationships within the agency

Positioning Yourself to Get Government Contracts

You must align yourself with the right companies and be able to solve the government’s problem. So many contractors (large and small) simply think that if they have the end user ‘in their pocket,’ that contracts will just flow to them. Realistically, this sort of thing does in fact happen.

However, the successful contractors follow a different road map. After market research is accomplished, you should accomplish the following things:

• If you are small business, then find a reputable teaming partner for any potential contracts
• You must identify any potential problem the agency has
• Develop your marketing materials to communicate a solution
• If you are selling a product, develop you marketing materials or presentations in a way that distinguishes your product AND how it will benefit the agency

The government wants to know two main things:

• Can you solve its problem
• Can you solve the problem with minimal risk and at a fair and reasonable price

As government contract consultants, we frequently get calls from businesses that expect to acquire a federal contract in 30 days. This is not only unrealistic but it tells me that contractors (large and small) really need more training on how to get government contracts. There are no get-rich-quick schemes in federal contracting.

You Must Know How to Write Effective Responses to RFPs

As a government contractor, you will more than likely have to bid for a federal contract. Opportunities are posted on www.fbo.gov. The agency will post its requirements and solicit responses. You must get up to speed on how to write effective and competitive proposals. Remember, the government wants to know whether or not you can solve its problem, and can you solve it with minimal risks and at a fair and reasonable price.

Learn How to Communicate Your Past Performance

Learning how to get government contracts means telling the agency who you are and what you’ve done. That’s all that matters. The government is not moved by high-branded names as may be the case in the commercial sector.

Many contractors incorrectly believe that if they have performed no government contracts, then their chances of getting an award in minimal. This is far from the truth. The problem is that you must learn how to communicate your past commercial experience and why it is relevant to a particular solicitation. Keep in the mind the following factors:

• The law requires the agency to give you at least a neutral rating if you have absolutely NO past performance
• Past performance must within the past 3 years AND relevant
• Remember that the government purchases commercial services and products

Our government contract consultants find common mistakes when a business bids on a federal contract. They include:

• Companies cannot write a proposal that separates them from the competition
• They cannot effectively tell the government about its problem and how the contractors knowledge and experience can solve the problem
• Many responses to solicitations attempt to capture unreasonable profits. Thus, the contractor looses the bid

Although the government is the largest customer for commercial supplies and services, you should not look at the agency as a “cash cow.” Agency’s typically already have a government estimate in place before the solicitation hits the street. With that said, the government often tends to have unrealistic estimates. This is a result on terrible market research habits.

Burden is up to you to communicate in your proposal that you have done your homework and that your prices are fair and reasonable when compared to the commercial market.

Getting Government Contracts on GSA Schedules

GSA is a quasi -government agency that creates a simple procurement mechanism for the agency to buy commercial services and products. However, getting on a GSA schedule is only but one way to position you to get government contracts.

Successful government contractors also scout the market to see whether the agency does in fact use the GSA schedule to purchase their particular service or product. Anything else is guess work! If approached correctly, you can get additional revenues by applying to get on schedule.

Look for Subcontracting Opportunities

Another way to get government contract dollars is to seek out subcontracting opportunities. The Federal Acquisition Regulation (FAR) requires that large businesses that are awarded government projects over $500,000 develop and solicit subcontracting opportunities to small businesses. This includes, HUBZOne, Service Disabled Veteran-Owned, Woman owned and Small Disadvantaged Business entities.

However, unless approached correctly, you may run into some problems such as:

• Large businesses giving the canned approach – “we don’t have any opportunities
• Your are told that “we have our own preferred subcontractors
• Your are told “there are no subcontracting opportunities

There ways to deal with these approaches. It is well know across the country that the government does not aggressively oversee large business subcontracting plans. As federal contracting consultants and former government contracting executives, we know this to be a reality.

Large Business Success

As a large federal contractor, there are always ways to improve your current strategy in getting government contracts. If you are a new contractor, you can invest in a well-versed and experienced government contract consultant on your team. Your focus should include:

• How to develop relationships with small businesses
• Learn how to better market your company
• Learn the best approach to events to get the best bang for your buck
• How to write more competitive responses to RFP’s

Small Business Success

As a small business, you must develop a plan of action that sets you on the right path to success. You should set aside a budget to get professional help on your team. If you are new to government contracting, getting the help you need can bring returns and improve your bottom line – more revenue. You must focus on:

• Market Research
• Developing Relationships with agencies
• Knowing the federal procurement rules

Summary

The government is the largest customer of commercial services and products. You learn how to effectively pursue the government market by getting experienced help. If you retain a consultant, ensure that they understand both the federal procurement rules and act on solid market data. Anything else is guesswork.  Both large and small contractors are experiencing difficulty in getting government contractors. There is a reason why.

For more information or additional help, call Theodore Watson at 720.941.7200