Smart government contractors don’t take just one bite at the apple when responding to a solicitation like a request for proposals (RFP) or invitation to negotiate (ITN). They hedge their bets by submitting “alternate” or “alternative” proposals that show off what they have to offer.
When the government drafts a solicitation, it includes numerous evaluation factors and assigns each evaluation factor a relative weight. For example, Orange County may issue an RFP that provides for scoring as follows: (1) technical/management approach – 50 points; (2) past performance/experience/key personnel – 35 points; (3) price – 15points. This evaluation scheme tells offerors that the County considers “technical/management approach” to be more than twice as important as price, therefore offerors should propose their best-possible solution or product – even if it has a significantly higher price tag than its other solutions or products.
But, real-life is rarely so clear cut.
Offerors’ prices may be revealed to evaluators before they finish scoring under the non-price factors (there is usually no legal prohibition on this, but an individual solicitation may forbid it). This can cause an evaluator to give a higher-priced offeror a worse score under the “technical/management” factor than he or she would have given if prices hadn’t been revealed. Although this is not allowed, it can be very difficult to prove this is what the evaluator did. Additionally, while an offeror may think it is proposing a superior solution or product, the evaluators may genuinely find it is only mediocre. In either case, the offeror’s decision to submit what it thought was a better product at a higher price will likely hurt its chances of winning.
Unless a solicitation expressly prohibits offerors from submitting multiple offers, sometimes called “alternates” or “alternatives,” a contractor that can propose more than one or good or service should do so. A company trying to land a private client would always “show off what he’s got.” Smart government contractors do the same. That way, if the government doesn’t think the “better” solution is that great, that contractor may still have a chance to win with its lower priced offer.
But, a contractor who does so it should try to follow a few basic guidelines. First, the contractor should distinguish its alternative offers so that it is clear what is being offered at each price. The less confusing an offer is, the more likely it is to be scored well. Second, if an offeror proposes different team members, key personnel, or subcontractors for its alternative “technical/management” approaches, it should provide past performance/experience/key personnel (or similar) responses that are tailored to each “technical/management” proposal. Finally, the proposal should make clear what the differences in the alternatives are. When proposing goods, this can be quite simple because a side-by-side comparison of the products’ specifications may make clear why one is more expensive. But, if the procurement is for services and there is a significant difference in price between an offerors’ “technical/management” approaches, the offeror should take care that its proposal shows why lower-priced offer will meet the agency’s needs, but the higher-priced offer will do so in a superior, yet more costly, manner (i.e., the more costly approach involves the use of more people or newer equipment). An alternative offer that doesn’t make clear why the higher-priced offer is more costly may leave the agency thinking the offeror should have proposed the superior solution at the lower price.
Diana C. Mendez is a partner in the Miami office of Shutts & Bowen LLP, where she is a member of the Government Law practice group.
Diana’s experience includes facilitating positive organizational and client outcomes on matters ...
Joseph M. Goldstein is the Managing Partner of the Fort Lauderdale office of Shutts & Bowen LLP, where he is a member of the Business Litigation Practice Group. Joseph also practices out of the Tallahassee office.
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