Remember to read Section L
Although government solicitations can be intimidating to read, it's helpful to remember that competing for a government contract is an open-book test.
If you want to win a contract, the thing to pay attention to is the solicitation. If a solicitation says that companies will be evaluated based on the number of vowels in their company name, Google will beat Apple.[1] The government must define "evaluation criteria" for picking winners and losers when it posts a solicitation. If it's not in the solicitation, it doesn't count. And, in the standard form for government solicitations, you can find those "evaluation criteria" in Section M of the solicitation.
But other parts of the solicitation are important, too! And another important part of the open-book test is Section L, which is where the government provides "instructions, conditions, and notices" to bidders.
Section L is the reason for #govcon war stories about submitting responses in 12-point Times New Roman with one staple on the top left corner in 3-ring binders personally delivered to the 6th floor of an office building in Boise. Section L is where the government describes the information it needs and when it needs it and how it needs it.
Reading section L can be boring and confusing and highly technical. But if you don't read it carefully, you can lose!
To start us off on the perils of ignoring Section L, consider this amuse bouche of a case called Correct Solutions, LLC that came out just yesterday. In Correct Solutions, the company sent the proposal to two email addresses that were "listed on the sam.gov website posting of the RFP before the closing time." It might seem logical to send a proposal to the email address on sam.gov, where the solicitation was posted. But, unfortunately for them, the email addresses on sam.gov were not the email addresses in Section L. And because the protestor sent the proposal to the wrong email addresses, they lost the case. Them's the breaks.
For our main course, we have a delightful opinion from the Court of Federal Claims in Allicent Technology, LLC v. United States. We previously wrote about the contract at issue in Allicent: the Commerce Acquisition for Transformational Technology Services (CATTS), a contract vehicle worth up to $1.5 billion over 10 years. After Commerce made awards to 15 out of 87 bidders on CATTS, some unhappy bidders filed protests at the Court of Federal Claims and some of those unhappy bidders complained to the beltway press.
But I was baffled by one of the complaints:
"When developing the proposal, you are looking at section M, the evaluation criteria. That is how they must evaluate the proposals. It’s in black and white. But after we got the debrief, we were disqualified because of some of the wording of the evaluation criteria," he said. "In Phase 1, Commerce said demonstrate your ability to meet the criteria across four subsections, with each being weighted the same. We hung our hat on those criteria. But during the debriefing the government said we failed to provide an approach in our technical evaluation. They never asked for an approach, but that is where they dinged us. And it was common across all protests."
I was baffled by the complaint because, as I wrote, the solicitation unambiguously said (in Section L) that offerors should "provide a detailed technical approach to performing the work in the Final CATTS PWS (Attachment 1)". I wrote "I'm legitimately confused as to how you could read this solicitation and not think you needed a technical approach. I guess we'll see how it plays out in litigation?"
Well, the litigation played out. And spoiler alert: Commerce lost on a handful of arguments and four of the unhappy bidders are now less unhappy because Commerce has to "re-evaluate the technical proposals of [those four companies] and issue new decision documents."[2]
And also, spoiler alert: I was right that the protestors would need a technical approach!
[S]everal plaintiffs argued that the RFP did not require them to provide an approach to demonstrate their ability to perform the PWS work. The RFP, however, required offerors to demonstrate their ability to perform the work and employ innovative methods to do so—i.e., provide their approaches to doing the work. While the Agency did consider experience when evaluating an offeror’s ability to perform the work, it was not sufficient.
Now, in fairness to the protestors, they were making a slightly more nuanced argument than that described in the press.[3] They argued that an approach wasn't the only way for a company to demonstrate its "ability" under Section M. From their perspective, "an offeror could demonstrate ability through approach, but could also do so with experience."
But the court rejected the protestors' argument because, well, it read section L. Here's the court's opinion:
Section L includes several references to providing an approach. First, Section L states that the “Technical Proposal, consists of the offeror’s proposal delineating its capabilities and how it intends to perform contract requirements. The Technical Proposal will be evaluated in accord with the criteria contained in Section M.” This provision could not be clearer.
I don't know what to tell you, folks? You gotta read Section L!
And carefully reading Section L can even give you a competitive advantage! Remember those silly font and spacing rules? In the Allicent decision, the court also considered whether some companies violated the solicitation's formatting requirements:
AttainX contends that “several offerors circumvented the Solicitation’s strict font size and page limitations by manipulating the Solicitation’s exception for data tables and graphics.” The RFP requires that “All narrative text shall be 1.5-spaced and have black text on white background, with the exceptions of graphics, screenshots, tables, headers, footers, and any item excluded from the page count which may be single-spaced.” And regular text had to be either 11-point Ariel [sic] or 12-point Times New Roman. But there was an exception for text in tables, it could be any size “as long as it is easily readable.” Several awardees did, as AttainX details, make rather extensive use of tables.
In other words, some vendors read section L and were like "a-ha there's a loophole! I can have single-spaced, small font tables!" And the court said "sure, that's fine":
Some Offerors did indeed use many tables filled with more narrative text than others. But this Court will not determine when table usage becomes excessive because that determination is left to Commerce because there is nothing in the RFP providing criteria against which to measure excess table use.[4]
Good for them, I say. Way to read the rules and creatively use those Microsoft Word skills for good and for profit!
I'll close back where I started: it's helpful to remember that competing for a government contract is an open-book test.
And when you're taking the test, it's important to read and follow the instructions!
[1] You can just imagine the pre-submission questions for that solicitation. Is there any limit to the number of total letters a company name might have? Can you use a DBA? Is "y" a vowel? The point here is that if a solicitation says something as ridiculous as "the government will pick a winner based on the number of vowels in their name," people will expect the government to actually pick a winner based on the number of vowels in their name. And, like, IKEA would have legal grounds to protest if HON won the award.
[2] Keeping score on this case is a tough one because 4 out of the 9 protestors won, 5 lost, 4 dropped out, and 1 of the 4 dropouts filed a new protest. Tricky! The clear winner in all of this, though? The lawyers! I'm pretty sure that oral argument could have doubled as a meeting of the ABA Section of Public Contract Law Bid Protest Committee.
[3] And, again, to their credit, some of the protestors won! As I noted at the time "I am definitely, most certainly, absolutely not anyone's lawyer in any of this and have no information other than what's in the public press and on SAM.gov, it's pending litigation etc etc etc." Some of the protestors won their protest because Commerce evaluated them incorrectly, which is a valid and difficult to win bid-protest strategy. Good work, lawyers! But the argument that protestors didn't need a technical approach? That did not pass Go (but maybe the lawyers collected ~$1200 / billable hour?)... Them's the breaks!
[4] As a lagniappe for section L, a sort of weird thing here is that the lawyers complained about the ambiguity of the instructions by asking the question "what even is a table?!" And the court didn't really answer it! AttainX argued that "tables cannot contain narrative text" but the court rejected their argument, noting that "AttainX’s own Technical Proposal makes use of text boxes (i.e., tables) that use narrative text to explain the required proven innovative methods that AttainX proposed. AttainX cannot contend that narrative text and tables must be distinct when its own proposal uses narrative text in tables as well."
But, like, is a text box a table? Or is a text box distinct from a table? Is it just the border that makes something a table?
And even if it is a table, I have to wonder how far a company could go before the agency or court said "ok, that's excessive table usage." Could you just like, write the proposal in two columns, wrap a border around it, and call it a day? I'm guessing the court would cry foul.
Sometimes these things are not spelled out in the instructions. And ambiguities like these are what make government contracting so fun! Fun is the word, right?