the 100 worst mistakes in government contracting

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The 100 Worst Mistakes in Government Contracting. Pre-Award or “A Race to the Finish Line” – Getting an Award Presented by: John Withers. Pre-Award Panel Discussion. Session Covers Chapters 1-16 and 28-29 Solicitations, Chapters 1-5, 15 and 16 - PowerPoint PPT Presentation

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RD&D Supporting Warm Syngas Clean-up Technology

The 100 Worst Mistakes in Government ContractingPre-Award or A Race to the Finish Line Getting an Award

Presented by: John Withers

RTI InternationalRTI International is a trade name of Research Triangle Institute.www.rti.orgRTI InternationalPre-Award Panel DiscussionSession Covers Chapters 1-16 and 28-29

Solicitations, Chapters 1-5, 15 and 16Proposal Preparation, Chapters 6-10, 28 and 29Submission and Questions/Revisions, Chapters 11 -14

Page 2RTI International2Who said this?By failing to prepare, you are preparing to fail.

RTI InternationalWho said this?By failing to prepare, you are preparing to fail.

Page 3RTI InternationalSolicitationsReading the SolicitationReading and Acknowledging AmendmentsAsking about AmbiguitiesDont Rely on Verbal RepresentationsRequest a Post-Award DebriefingSolicitation TypesPast PerformanceRFPRFQRFAPage 4IFBRTI InternationalPrepare - Read the SolicitationIFB, RFP, RFTOP, RFQRead it all, understand it all ask if you dont!Clauses incorporated by ReferenceAnalyze and acknowledge amendments

Page 5RTI InternationalRecognize the Hurdles in Solicitation TypesThree elements of contract formationIFB sealed bidding; may bind your companyRFP negotiated procurement; may bind your companyRFQ merely a quote not an offer; may not bindContract established by acceptance (written) or performanceGovernment may withdraw, amend or cancel before acceptanceIf you let date for performance pass, purchase order may lapse and you will not be able to recover costs

Page 6RTI InternationalGather all your equipment for the Race - Ask QuestionsCheck Fedbizopps, econsultant2 (World Bank), etc., to make sure you have everything and that it is currentYou 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 7RTI International

Train, Train, Train Dont Quit Now!Ask questions in writing and get answers in writing!If Contracting Officer (CO) acknowledges an ambiguity, solicitation should be amendedNever rely on verbal representationsVerbal solicitations are allowed for micro-purchases or those under SATSpacesaver Storage Systems, Inc., best value weapon storage systems and verbal assurance that laminate panels were acceptable (Page 4)Page 8RTI InternationalPost-award DebriefingsUsed to furnish basis for selection decision and contract awardPer FAR 15-506 (d) information to be provided by Government:(1) The Governments evaluation of the significant weaknesses or deficiencies in the offerors 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 awardDebrief may actually help avoid a protestAlways request as under CICA, you may also getan automatic stay of performance for GAO protest (31 U.S.C. 3553)

Page 9RTI InternationalPast Performance What is your Track Record?Past performance information all relevant information regarding contractors 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 10RTI InternationalRace Rest StopQuestions?Page 11RTI InternationalProposal Preparation & SubmissionFreedom of Information Act (FOIA)Comply With Submission InstructionsBase Offer on Evaluation FactorsTimely Submission Ensure Compliant ProposalsCPAF Contracts & Award Fee FormulaIDIQ Contracts Range of Options

Page 12RTI InternationalFreedom 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

RTI InternationalComply With Submission InstructionsMost Common Solicitation Instructions:Font size and typePage limitsTechnical and Cost Proposals in separate volumesHard copies and Electronic copiesPast Performance specific number of referencesResumes specific number

Comply with all requirements stated in the solicitation/RFP.

Page 14RTI InternationalBase Offer on Evaluation FactorsEvaluation 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 todays climate of severelyconstrained budgets, always assume that Price is an important factor.Page 15

RTI InternationalTimely SubmissionProposals 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 16RTI InternationalEnsure Compliant ProposalsProposals must comply with the Governments specified requirements in order to be eligible for award.Potential Red Flags:Exception to or deviation from specified delivery scheduleExceptions to any specified requirementProposing alternate products/services that do not meet requirementsAlternate proposals may be allowed but are subject to first submitting a fully compliant proposal

Page 17

RTI InternationalHeads Up Issues Getting to the Finish LineCPAF Contracts & Award Fee FormulaHeads Up: Read and understand the Award Fee Formula prior to finalizing the budget/cost proposal.

Indefinite Delivery Contracts Range of OptionsHeads Up: Requirements contracts and indefinite delivery-indefinite quantity (IDIQ) contracts are most common. Page 18

RTI InternationalMaterial MisrepresentationsCollaborating and Set-AsidesAward Without DiscussionDiscussions and Final Proposal RevisionsMistakes

Post-Submission-What Can Happen NextPage 20

RTI InternationalMisrepresentationsProposal 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 21RTI InternationalCollaborating and SB Set-AsidesCollaboration 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 22RTI InternationalAward without Discussions - We Can Always Correct It LaterDoes an RFP contains FAR 52.215-1 or FAR 52.215-1, Alternate 1If 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 23RTI InternationalDiscussions 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 FPRResponses to questions, confirmation of discussions, and FPRs 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 24RTI InternationalMISTAKES---Everyone Makes ThemMistakes can be mut

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