Advanced Communication Cabling, Inc. (ACCI), who is a small business, protested the terms of request for proposals (RFP) No. VA118-15-R-0558, issued by the Department of Veterans Affairs for information technology (IT) services. You can read the full protest and decision at: Advanced Communication Cabling, Inc., B-410898.2, March 25, 2015.
The RFP asked offerors to describe their approach to three hypothetical tasks, to include labor categories used. In evaluating each task, the VA would consider the offeror’s understanding of the problem, feasibility of the proposed approach, and realism of the labor categories.
The RFP expressly prohibited offerors from using consultants to assist them in preparing their sample task responses. Each offeror had to certify that its sample task responses were prepared only by the offeror and its subcontractors who were identified in the proposal. The agency would not consider proposals with no certification or with a falsified certification.
ACCI protested that the VA’s prohibition on using consultants is unduly restricts competition.
According to VA, this approach ensured responses would reflect the technical abilities of the offerors – not that of outside experts who would not be involved in performing the contract.
VA had to establish that the requirement was “reasonably necessary” to meet the agency’s needs.
Since the fundamental purpose for the sample tasks was to gauge an offeror’s ability to successfully perform the contract, the GAO stated it was reasonable to require the sample task responses be prepared by firms proposed to perform the contract, as opposed to outside consultants who have not been identified as members of the offeror’s team.
ACCI challenged the rationale for restricting the use of consultants since the RFP does not actually require the individuals who prepare the sample tasks to perform under the contract. The protester notes that an offeror’s employees or subcontractors who prepare the sample task responses may only be involved in the preparation of proposals, or may not work for the offeror or subcontractor at the time of performance. GAO agreed that the provision does not guarantee the same individuals who prepare the responses will perform them, but the provision eliminates the possibility that an offeror will submit sample task responses that do not reflect its own technical ability. GAO found that VA reasonably concluded that the restriction on consultants would reduce risk to the government.
ACCI also challenged prohibiting consultant assistance in preparing sample task responses because it is possible for an offeror to contract with a consultant firm for the preparation of the sample tasks and also to assist in performing under the government contract. The protester argues that the blanket prohibition on consultant assistance is unduly broad. GAO stated the argument was misplaced since the RFP allows for an offeror’s subcontractors to participate in the preparation of the responses. So under ACCI’s hypothetical, a consultant could assist with the sample task responses, provided the consultant was part of a subcontractor agreement and was identified in the offeror’s proposal.
Finally, the protester challenges the RFP’s prohibition on the basis that it may require a small business to rely on a large business subcontractor to assist in the preparation of the sample task responses and jeopardize the offeror’s status as a small business for the purposes of the procurement. GAO stated that just because a requirement is burdensome or even impossible for a particular firm to meet, does not make it objectionable. The agency’s limitation on the use of consultants is reasonably related to the agency’s goal of reducing the risk of unsuccessful performance. Accordingly, the protester’s argument provides no basis to sustain the protest.
As a consultant for a firm that assists offerors with proposal preparation, I’m not sure how I feel about the prohibition on consultants or that the GAO found no problem with the prohibition. It really puts consultants on an impossibly steep slope on assisting with parts of the proposal response. No firm is going to hire consultants to assist with sample task responses unless the consultants are technical experts in the required services. And consultant firms may not want to enter into any kind of subcontractor agreement because that is not their business model.
Bottom line is that if you are bidding on a requirement that contains such a prohibition on consultants, you must ensure that you understand the restriction and comply completely when preparing your proposal.