Type: Law Bulletins
Date: 04/06/2015

Advanced Communication Cabling, Inc. – A one-off or a new trend?

On March 25, 2015, the GAO denied Advanced Communication Cabling, Inc.’s (“ACCI”) protest challenging a provision in the Department of Veterans Affairs’ (“VA”) solicitation that prohibited the use of consultants to assist in proposal preparation. See, B-410898.2. The procurement anticipated the award of about 20 IDIQ contracts to provide the VA with total IT services solutions. The procurement had a maximum value of $22.3 billion for all orders placed during the base contract period of five years and a five-year option period.

One of the six evaluation factors in this best value procurement was “technical”; it included two subfactors: sample tasks and management. The sample tasks subfactor asked offerors to describe their approach to three sample hypothetical tasks and the labor categories to be used in performing these tasks. The RFP specifically prohibited offerors from using consultants to assist them in preparing their sample task responses and required offerors to certify that no one other than themselves or a teaming partner (who had a signed teaming agreement and was identified in the proposal) had helped in the preparation of the sample task responses.

The VA justified its prohibition on the use of consultants as the best way to ensure that the sample task responses received would actually reflect the technical abilities of the offerors rather than those of outside experts who would not be involved in performing the contract. The GAO, siding with the VA, found that the VA’s restriction was reasonably necessary to meet the agency’s need.

ACCI challenged the prohibition as unduly restrictive. ACCI pointed out that there was no guarantee that any personnel preparing the sample task responses would actually do the work or would still be employed by the offeror after award. In other words, the requirement wouldn’t achieve the VA’s goal of reducing the risk of unsuccessful performance. The GAO was unmoved. ACCI also challenged the restriction because consultants who help with proposals sometimes also do work on the contract once awarded. The GAO said that the VA’s restriction already addressed this scenario by requiring them to have a teaming agreement. Finally, ACCI argued that the prohibition would require small businesses to rely more heavily on their large business subcontractors, thereby jeopardizing their small business size status. The GAO recognized the problem but concluded that just because “a requirement may be burdensome or even impossible for a particular firm to meet. . .does not make it objectionable, so long as the requirement properly reflects the agency’s needs.”

In essence, the GAO’s decision recognized that the situations raised by ACCI may very well be valid; they just don’t matter because the GAO found the VA’s prohibition was reasonably related to the agency’s desire to reduce performance risk. So, where does that leave the myriad of proposal consultants who work hand-in-glove with offerors to write winning proposals? And, is including such a provision really an effective way to reduce performance risk? Said differently, does an agency really gain any demonstrable advantage by including such a prohibition? Isn’t the best way to evaluate a contractor’s capabilities by a review of its technical proposal and its past performance? Unfortunately, protest decisions don’t answer these questions.

Only time will tell whether ACCI is an aberration or the beginning of a new trend.


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