May 5, 2015

Are bid preparation consultants good or bad for the competitive procurement system?  Contractors have argued about this for years. 

GAO recently upheld a solicitation provision forbidding the use of consultants to prepare the proposal’s responses to sample tasks and requiring the offeror to certify that its responses were self-prepared.  The provision in question was challenged in Advanced Communication Cabling, Inc., where the Department of Veterans Affairs (“VA”) forbade the use of consultants in responding to three sample tasks.  See B-410898.2, March 25, 2015, http://www.gao.gov/products/B-410898.2

In that solicitation, the Department of Veterans Affairs (VA) issued an RFP for information technology (IT) services as part of its Transformation Twenty-One Total Technology Next Generation (T4NG) program, and banned the use of consultants by bidders and their subcontractors for the three sample responses. Specifically, the RFP stated that: 

The Offeror shall certify that the three sample task responses are the work of the Offeror and its subcontractor(s) with which it has a CTA [Contractor Teaming Arrangement] as defined in FAR subpart 9.6 and is included in the management volume. Offerors shall not use a consultant(s) to develop responses to sample tasks. The Government will not consider proposals for award from Offerors that do not provide the certification or provide falsified certifications; and all such responses will be deemed ineligible for award. If it is determined that an awardee provided a falsified certification the awardee will be subject to termination. This certification is set forth at Solicitation Section J – Attachment 017.  (Emphasis added.)

ACCI protested, arguing that the VA’s prohibition was unduly restrictive of competition.  The VA countered that the prohibition would help ensure that the responses received by the Agency would reveal the technical abilities of the offerors and their subcontractors, as opposed to gauging the skills of hired, outside experts who would not perform on the contract.  The VA reasoned that this restriction would reduce the risk of unsuccessful performance and make it more likely that the Agency’s technical evaluation was based on the knowledge and abilities of the individuals actually involved in performing under an awarded contract.  

 GAO agreed with the VA, finding that the Government’s interest in reducing the risk of unsuccessful performance is a legitimate basis for including a restrictive solicitation provision. It will be interesting to see if other agencies will begin including similar provisions in future solicitations.