I’m no follower of pop culture or celebrity worship. But it’s been impossible to escape headlines and reporting on the Depp v. Heard case–which even major and reputable news outlets are covering. One way or another, I ran into reporting on Mr. Depp’s forgetfulness on the witness stand. Probably to the surprise of many, Captain Sparrow had a difficult time remembering his casting in certain franchise movies. That seems like a hard thing to forget and yet . . . he did.
Though come to think of it, we all struggle, to one degree or another, to remember to the basics. In government contracting, sometimes the basics–like thoroughly reading and understanding the solicitation–don’t attract their deserved attention. But ignoring this first wicket in a competitive procurement can unnecessarily relinquish an offeror’s tools to possibly gain an edge.
So, let’s talk about certain solicitation features that offerors should look for in a thorough exploration (naturally, using a magic compass) of a solicitation and how to react to less than ideal provisions.
Reading the solicitation
A careful read sets the groundwork for a successful bid. As you study a solicitation, here are some key points to consider:
- What is the competitive pool? Is it a set-aside contract? Or is it unrestricted?
- If a set-aside contract, does the assigned NAICS code’s size standard cut your firm from the competitive pool with the piercing edge of a pirate’s rapier?
- Does the solicitation overly restrict competition in some way–e.g., onerous, yet unjustified eligibility requirements (that only a handful of firms could meet), stipulates a name brand product, etc.
- What is the scope of work? Do it makes sense, and is it clear? Is the solicitation bundling previous requirements such that small businesses cannot effectively compete?
- What FAR or other provisions govern the work or regulate the contractor’s conduct? Are there some that shouldn’t be there? Are there others that should?
- Does solicitation contain an ambiguity, an obvious error or a contradiction? For example, does it state multiple and incompatible specifications for the same service or product?
- How feasible is the deadline for proposal submission? Has the agency granted enough time for offerors to gather information for an intelligent proposal?
Many times, reading alone is not enough to achieve robust understanding: offerors should ask questions. Normally, agencies are open to questions about the solicitation, its requirements, and so on. Offerors should take full advantage of this process to, among other things:
- Correct obvious errors without having to protest.
- Clarify requirements.
- Ensure that wage determinations or other required documents are attached to the solicitation.
- Lock down the agency’s interpretation of a solicitation term or requirement.
- Develop the agency’s requirements and, perhaps, steer the agency in ways that favor your firm’s competencies.
But drafting questions for an agency is a delicate art. Here are a few guidelines to bear in mind when developing impactful parley questions:
- Make your questions short and precisely worded. Be sure to use the solicitation’s language and cite solicitation pages/provisions to assure the agency’s understanding.
- Include only one topic per question.
- Draft to inform. In other words, help the agency see the solicitation from an offeror’s perspective.
- For ambiguities, offer possible interpretations.
- Point our inconsistences delicately. Don’t shame the drafter!
- If you believe the agency’s requirements might pose a problem, suggest an easy solution.
Why do an early deep dive to the solicitation’s Davy Jones’ locker?
Procurements are objects in motion. After they leave the station, there’s little that an objecting offeror can do to help its cause. But if an offeror consciously chews through even the most gristly solicitations right off, it might have some legal tools shape the solicitation in its favor.
For example, what if a contracting officer poorly chosen NAICS code excludes a firm from a set-aside solicitation? If that firm acts quickly (within 10 days after the solicitation issues), it could remake the competition dynamics through a NAICS appeal. Leveraging this tool, an offeror could go from an excluded firm to the winning firm.
In addition, tribunals demand that potential offerors challenge solicitation requirements and terms before proposal submission. So scouring the solicitation for restrictive requirements, ambiguities or inconsistences, or other objectionable features must happen early. A timely GAO protest could mean the difference between eligibility versus ineligibility or intelligently bidding versus bumbling through a proposal like a drunken pirate.