“I don’t want to do that because it will just upset them and they’ll make sure I don’t win.” This is a common concern I hear from clients when I help them review solicitations (invitations to bid (ITB), requests for proposals (RFP), or invitations to negotiate (ITN)) and draft their offers. But, this fear of “rocking the boat” is usually unfounded. This is why I frequently advise clients who hire me to help draft proposals to stick up for themselves by submitting “strategic” questions or filing “spec challenges,” which are bid protests challenging the terms of an solicitation.
When the government drafts a solicitation there may be provisions that are unclear, that make it a lot more difficult for a contractor to win, or that prevent a contractor from competing. In such situations, I frequently advise that the first step is to try to resolve the matter through the “question and answer” process. Most solicitations allow potential bidders to submit questions to the agency about the solicitation. In turn, the agency will usually publish an amendment to the solicitation with a schedule of all questions submitted and its answers to those questions. While every agency has its own rules, in most cases Q&As attached to a solicitation amendment amend the solicitation.
A well-drafted question will identify the provision being addressed, explain why it is problematic, and specifically explain the corrective action the bidder would like the agency to take with respect to it (e.g., to amend it, clarify it, delete it, etc.). Strategically using the Q&A process can cause the agency to commit itself to a position that is beneficial to the bidder, or force the agency to make clear what its position is. Unfortunately, many bidders think that if they try to “pin down” the agency during the Q&A stage, the agency will retaliate by scoring it poorly during evaluations. But, in my experience, most agencies consider strategic Q&As to be “business as usual” and don’t think twice about who asked what questions during scoring.
If the Q&A process doesn’t get the client the answer it was hoping for and the solicitation flaw really hurts it, the next step I often advise is to file a spec challenge. Clients are often uneasy at the thought of suing someone they’re about to submit a bid to – again, out of fear that even if they win the protest the agency will retaliate during scoring.
But, the reality is that spec challenges are the easiest type of protest to win. If a protester filing a spec challenge is asking for something reasonable that can’t really disadvantage the agency, the agency will often give it to them instead of spending time, money, or manpower fighting the protest. Moreover, in my experience if a bidder pursues a non-frivolous spec challenge in a respectful manner the agency will treat it as “business as usual,” and won’t think twice about it during scoring.
The takeaway is contractors should stick up for themselves when preparing bids. It’s usually cheaper and more effective than waiting until you lose.
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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