United States: Legal Insights: Building Better Mousetraps By Adding Value To Technical Proposals

"Build a better mousetrap and the world will beat a path to your door" is the old saying, but the federal government seldom beats a path to the door of a contractor. Nevertheless, companies can win contracts by adding value to their proposals with technical discriminators.

Assuming a contractor is responsible, contract awards by federal agencies are generally determined by three sets of factors: price, past performance, and technical approach. Where contracts are awarded based on the government's assessment of best value, distinctions among technical proposals are critical to determining the contract award. In best value acquisitions, technical discriminators, which serve to differentiate one proposal from another, are often what determine success or failure.

To increase the value of their technical proposals, contractors must make maximum use of technical discriminators. Yet, not all technical discriminators that could lend a competitive advantage to a proposal may be readily apparent. For that reason, it can be useful to look at best value assessments in other procurements. Many such evaluations are reviewed in bid protest decisions. These decisions frequently discuss the technical discriminators that agencies find significant.

A. Evaluation of Technical Proposals in Best Value Acquisitions

Contracts issued by the federal government are awarded through sealed bidding or negotiated acquisitions. FAR 15.000. Negotiated acquisitions can be conducted on a sole source or competitive basis. FAR 15.002. Technical proposals are of the most significance where a competitive negotiated acquisition is decided by which prospective contractor offers the best value to the agency. Contracts awarded through sealed bidding, sole sourcing, or a lowest price, technically acceptable basis are most likely to be determined on price, price-related, or other factors not involving a particular technical approach. See FAR 6.401(a), 15.002(a) and 15.101-2.

In best value procurements, the agency evaluates proposals by engaging in a tradeoff process. This procedure permits balancing among cost or price and non-cost factors and allows the government to accept other than the lowest priced proposal. The perceived benefits of the higher priced proposal have to merit the additional cost. FAR 15.101- 1(c). When tradeoffs are performed, the source selection authority must document an assessment of each offeror's ability to accomplish the technical requirements and prepare a summary, matrix, or quantitative ranking, along with an appropriate supporting narrative, of each technical proposal using the evaluation factors in the solicitation. FAR 15.305(a) (3).

All factors and significant subfactors that will affect contract award and their relative importance must be stated clearly in the solicitation. FAR 15.304(d). Although agencies are not permitted to use unstated evaluation factors in evaluating proposals, the government may take into account specific matters that are logically encompassed by, or related to, the stated evaluation criteria, even if they are not expressly identified as evaluation criteria in the solicitation. Red River Computer Company, Inc.1

B. Technical Discriminators That Add Value

Bid protest decisions of the Government Accountability Office and the U.S. Court of Federal Claims offer a window into the process by which federal agencies conduct best value procurements. Disappointed offerors in these acquisitions frequently contend that the agency did not properly engage in the tradeoff process. Such protests are denied where the agency can demonstrate that it reasonably applied the evaluation factors in the solicitation to decide which proposal offered the best value to the government. These best value assessments frequently address technical discriminators. By studying the best value determinations discussed in bid protests, contractors can better understand what types of technical discriminators make a difference to the agencies and why they are valued.

Bid protest decisions show that technical discriminators differentiating one technical proposal from another generally fall into five categories: (1) quality of product, (2) quality of service, (3) management of work, (4) qualifications of personnel, and (5) quality of written proposal. Each of these factors are used by contractors to gain an advantage in competitive procurements.

1. Quality of Product

In a procurement involving the government's purchase of a tangible product, the quality of that product is clearly the most important discriminator. Among the common differentiators of product quality that procuring agencies have found add value are the following.

(a) Use of Commercially Available Components

  • Continental RPVs2 : Where the Army requested proposals for the acquisition of an aerial remotely-piloted vehicle target system, the contracting officer determined that the winning offeror's proposed use of off-the-shelf components offered significant benefits to the government by avoiding the need for costly specialized equipment and increasing the reliability of the system. According to the agency, these parts were low technology and thus low risk.
  • Marion Composites3 : The Army issued a request for proposals for a quantity of rigid wall shelters. The contract was awarded to an offeror who proposed critical shelter components that were already tested and proven. As a result, the contractor's technical approach did not pose a risk of production delays and justified paying a price premium. 4
  • Northrop Grumman Systems Corporation4 : Where the Air Force issued a request for proposals for the development and delivery of a multi-intelligence core upgrade for its Distributive Common Ground System, the agency found the winning contractor's software maximized the use of commercial off- the-shelf technology to provide an open standards based architecture and a high level of flexibility. By accommodating modifications, growth, and system upgrades to a greater extent than a competing proposal, the awardee's approach ensured maximum combat capability.

(b) Superior Design

  • Precision Lift, Inc.5 : The awardee's design for aircraft maintenance platforms was found superior in featuring an advanced, interlocking alignment pin system that exceeded minimum performance standards and plank decking with 40% more cross sectional material which provided greater strength, support, and safety.
  • Continental RPVs6 : The winning design of an air frame for remotely-piloted vehicle targets provided the ability to change air frame components easily in response to any future growth requirements.
  • Chicago Dryer Company7 : The winning technical approach for laundry equipment exceeded specifications where the equipment could be linked to the agency's existing laundry software allowing the agency supervisor to closely monitor performance and productivity.

(c) Superior Testing Process

  • Marion Composites8 : In a procurement of rigid wall shelters, the winning proposal included a thorough discussion of the validation testing process, including detailed first article testing milestone charts and road testing requirements.
  • Continental RPVs9 : In an acquisition of remotely-piloted vehicle targets, the awardee verified the key performance parameters for its air frame design and power plant through test flights and substantiated the performance characteristics of its design with detailed performance data.

(d) Superior Terms

  • Precision Lift, Inc.10 : The winning technical proposal was deemed to offer an advantage where the product came with a five year warranty compared to a three year warranty offered by the competing proposal.

(e) Reduced Energy Consumption

  • Carothers Construction, Inc.11 : A proposal for the design/ build of an elementary school was found to be of greater value where the building design provided for a reduction in energy consumption of 10% more than the competing design and where the winning offeror proposed building canopy-style structures over the parking areas to support additional solar panels.

2. Quality of Services

When the government is purchasing services, the quality of those services is also a most important technical discriminator. Agencies have determined the following differences in the quality of services proposed by offerors to confer a competitive advantage:

(a) Enhanced Efficiency

  • Raytheon Company12 : In its proposal to provide engineering support and vulnerability assessments to the Defense Threat Reduction Agency, the awardee identified inefficiencies in the existing characterization process and offered suggested changes to the workflow and team structure to address those inefficiencies.
  • Hagler Bailly Consulting, Inc.13 : The winning offeror proposed a more effective and innovative approach than the competing offeror for eliminating duplication of work and for incorporating previously completed assessments.
  • Millennium Corporation, Inc.14 : In response to a solicitation by the Department of Veterans Affairs seeking support services for the agency's acquisition and contract administration office, the awardee proposed to implement a comprehensive enterprise resource planning system to support acquisition management reporting. The proposed system promised to unify an aggregate of various elements of the agency's existing acquisition management systems.

(b) Offer to Provide Additional Services

  • Hagler Bailly Consulting, Inc.15 : Where the USAID issued a solicitation for a contract to provide technical assistance on an energy management project to the Government of the Philippines, the contracting officer was impressed by the awardee's plan to establish a fund to finance future energy projects and a public/private sector group to research and track consumer end-use and load issues.
  • American Correctional Healthcare, Inc.16 : In response to a solicitation from the Federal Bureau of Prisons for comprehensive medical services at a federal penitentiary, the winning offeror's proposal included behavioral health services at all of the hospitals in its proposal and also offered greater administrative support at these facilities compared to the competing proposal. 17
  • Computer Systems Development Corporation17 : The Department of Defense issued a solicitation to provide support services for automated information systems. One of the discriminators that favored the winning proposal was offering to provide 24 hour staff coverage in support of the information system facilities which exceeded the agency's requirement for hours of operation.
  • Doss Aviation, Inc.18 : In response to a solicitation for helicopter flight training services, the awardee's proposal was found to be technically superior because, among other reasons, it provided for two more instructor pilots than considered necessary by the independent government estimate.

(c) Tailoring of Services to Agency Needs

  • Hagler Bailly Consulting, Inc.19 : In response to a solicitation to provide technical assistance on an energy management project to the Government of the Philippines, the awardee's proposal was specifically tailored to the Philippines. The competing proposal was generic, utilizing an approach which could be applicable to any developing country.

Footnotes

1. Red River Computer Company, Inc., B-414183.4 et al. (June 2, 2017), 2017 CPD ¶ 157.

2. Continental RPVs, B-292768.6 (April 5, 2004), 2014 CPD ¶ 103.

3. Marion Composites, B-274621 (December 20, 1996), 96-2 CPD ¶ 236.

4. Northrop Grumman Systems, Corporation, B-293036.5 et al. (June 4, 2004), 2004 CPD ¶ 124.

5. Precision Lift, Inc., B-310540.4 (June 26, 2008), 2008 CPD ¶ 166.

6. B-292768.6 (see note 2).

7. Chicago Dryer Company, B-293940 (June 30, 2004), 2004 CPD ¶ 137.

8. B-274621 (see note 3).

9. B-292768.6 (see note 2).

10. B-310540.4 (see note 5).

11. Carothers Construction, Inc., B-405241.4 (July 26, 2012), 2012 CPD ¶ 225.

12. Raytheon Company, B-413981 (January 17, 2017), 2017 CPD ¶ 40.

13. Hagler Bailly Consulting, Inc., B-265708 (December 19, 1995), 95-2 CPD ¶ 276.

14. Millennium Corporation, Inc., B-412866 et al. (June 14, 2016), 2016 CPD ¶ 168.

15. B-265708 (see note 13).

16. American Correctional Healthcare, Inc., B-415123.3 et al. (January 2, 2018), 2018 CPD ¶ 85.

17. Computer Systems Developmental Corporation, B-275356 (February 11, 1997), 97-1 CPD ¶ 91.

18. Doss Aviation, Inc., B-275419 et al. (February 20, 1997), 97-1 CPD ¶ 117.

19. B-265708 (see note 13).

Originally published in Fall 2018 PACA Pulse

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