Feral hogs and the old bait & switch
A thing that never gets old to me is how much weird stuff the federal government buys. For example, we've talked about Smokey Bear Baseballs and snorkeling-equipment operators in the Virgin Islands. This week, I learned about that time that the Department of Veterans Affairs (VA) acquired wildlife-management services at Fort Mitchell National Cemetery in Alabama. More specifically, I learned about that time the VA bought "feral hog" control.
As it turns out, feral hogs are a real problem in the southern parts of the United States.[1] And the VA issued a solicitation to procure "services to address sanitation issues and damage caused by feral hogs" and "to trap, reduce, and control the feral hog population."
Now, suppose you were the VA and wanted to buy some feral hog control. How would you choose? You might do some market research to figure out what types of companies provide feral hog control. Or, you might ask for examples of how those companies actually, uh, control the feral hogs and for their track record. You might also ask for prices.
Essentially, you'd do ordinary procurement things. This is one of the reasons I love procurement: the process is generally the same irrespective of what the government is trying to buy.
Anyway, the VA did all of those things and required vendors to "propose a site manager who would ensure this work was performed in accordance with the terms of the solicitation as well as manage and supervise employees." Meanwhile, the VA required the site manager "to have at least five years of experience performing all tasks in the scope of work and supervising employees performing those tasks."
Notably, though, the VA did not require the company to have five years of experience with feral hog control. The VA only required the site manager to have five years of experience with feral hog control.[2] Ultimately, after reviewing 5 bids, the VA selected 3 Squared Technology Group.
At this point, Southern Hog Control, LLC, one of the unsuccessful bidders, protested to the GAO. And before going further, I want you to develop some sympathy for Southern Hog Control, LLC. This is a company that, according to its website, has a mission statement of being "the premier hog control company providing equipment and techniques to farmers, wildlife managers, wildlife control operators, hunters, trappers and wildlife professionals to manage nuisance hog populations in the State of Georgia, the Southeast and the United States." It's safe to say that Southern Hog is seriously into feral hogs.
Meanwhile, 3 Squared Technology Group, according to its website is a company that "provides state-of-the-art and cost-effective information technology and consulting services to the Federal, State Government, private sector, and non-profit organizations." Yes, you read that right. The winner of the feral hog control contract is an IT consulting firm.[3] An IT consulting firm which, I guess, employs a person with extensive feral hog control experience.
Southern Hog's protest here was pretty straightforward: "Southern Hog first asserts that 3 Squared cannot meet the experience requirements under the technical capability factor because it is not a feral hog control company." I mean, fair, right? But, as GAO explained, 3 Squared Technology didn't need to be a feral hog control company, it only needed to have a site manager who had feral hog control experience:
The protester has not shown that the agency unreasonably evaluated the awardee’s quotation or that the awardee intentionally misrepresented its proposed personnel to the agency. First, the solicitation did not require firms to have experience with feral hog control, but rather required that a vendor’s site manager have at least five years of experience with wildlife management similar to the tasks in the SOW, and experience managing and supervising employees performing those tasks. Our review of the record shows that 3 Squared’s quotation includes a description of its site manager’s experience demonstrating the requisite five years of experience in wildlife management and employee supervision and includes a letter of commitment from this individual. Therefore, we conclude that the agency reasonably determined that 3 Squared’s quotation met the technical requirements in this regard.[4]
The second argument was also pretty straightforward. Basically, Southern Hog argued that, as an IT Consulting firm, 3 Squared Technology wasn't seriously going to have its employee serve as the site manager. According to Southern Hog, 3 Squared Technology was actively looking to subcontract out the work as soon as it got the award:
[Southern Hog alleges] that 3 Squared’s quotation intentionally misled the agency about its experience because, according to the protester, the awardee is still trying to hire staff to perform the contract. The only evidence that Southern Hog offers to support this assertion is its claim that 3 Squared contacted it and several other firms in the industry to hire subcontractors to perform the work.
Effectively, Southern Hog argued that 3 Squared engaged in a "bait and switch." The argument goes that, while 3 Squared promised the government that Person X would do the work, 3 Squared must have planned to have someone other than Person X do the work.
This is a problem that folks in industry know all too well. You want to win a contract on the basis of an individual's expertise. But maybe that individual has other responsibilities to the firm? Or, you may be bidding on multiple contracts at the same time; what happens if you win both? Can you lose a contract because you might need to swap out your key personnel after award?
Fortunately for 3 Squared, and unfortunately for Southern Hog, GAO rejected the protest because "[t]he question of whether personnel identified in a vendor’s quotation will, in fact, perform under the subsequently awarded contract is generally a matter of contract administration that our Office does not review." According to GAO, it will deny bait-and-switch protests unless a protestor can show (1) that the awardee either knowingly or negligently represented that it would rely on specific personnel that it did not have a reasonable basis to expect to furnish during contract performance; (2) that the misrepresentation was relied on by the agency; and (3) that the agency’s reliance on the misrepresentation had a material effect on the evaluation results.
And here, "3 Squared’s quotation contained a signed letter of commitment from its site manager, and Southern Hog has not challenged this." GAO went on to say that "[a]ssuming that 3 Squared is seeking subcontractors, this by itself is not evidence that 3 Squared has performed a bait and switch because it could be seeking subcontractors for a number of reasons, including for other contracts it is bidding on or performing. As Southern Hog’s claim fails to demonstrate a bait and switch, the issue of whether 3 Squared’s site manager actually performs remains a matter of contract administration that we will not consider further."
In other words, to borrow a somewhat common phrase in #govcon circles, 3 Squared had a "winner's problem" and Southern Hog lost. Them's the breaks.
In the end, though, this protest is a good lesson that you can always reinvent yourself in #govcon. Just because you are an IT consulting shop on Monday, that doesn't mean you can't win a feral hog control contract by Friday. You just need to find the right opportunities and win them.
And if that's not enough inspiration for the federal capture manager out there, I'm not sure what else to tell ya.[5] Happy hunting, y'all.
[1] As someone who grew up—and now lives—in suburban Wisconsin, I am blissfully unaware of the wild-pig problem. Apparently, it's a $40.2 billion problem, and growing.
[2] A fun exercise is to try and guess what NAICS code and PSC (Product and Service Code) applies to any given solicitation. The NAICS code was easy: "114210: Hunting and Trapping." But I struggled with the PSC. I guessed "F019: Natural Resources/Conservation—Other Wildlife Management." But as it turns out, the answer was "H188: Quality Control—Live Animals." I guess Quality Control of Live Animals is a way to describe it.
[3] According to USASpending, in what must have been an absolutely wild week in January 2024, 3 Squared won a contract for "CONTRACTOR SUPPORTED WEAPON SYSTEMS DATA EXCHANGE" and the contract of today's discussion: "FERAL HOG CONTROL FOR STATION 908. FUNDING BASE YEAR POP 10 JAN 2024 THRU 31 DEC 2024 SUBJECT TO AVAILABILITY OF FY24 FUNDS."
[4] I tried very hard to include a SOW pun in this post but, eventually, I got boar-ed. No, I'm not sorry.
[5] Other than, I guess, call me?