• Joshua Duvall

CAPTURE AND PROPOSAL TEAMS BEWARE: Do Not Let Hypotheticals Ruin Your Chances

With shrinking budgets and fewer government contracts being awarded, capture and proposal teams carry a heavy burden in such a competitive market. The success or failure of government contractors–winning or losing contracts–can sometimes rest upon answers to hypotheticals.  One thorny task commonly set forth in some RFPs is a call to present a solution to a hypothetical scenario.  While your answer to a hypothetical may seem straightforward, proposal teams should be aware that everything you write—or don’t write—can factor into an agency’s evaluation. In other words, imprecise writing can yield devastating results.

Agencies can use hypotheticals as a benchmark to measure the strength of an offeror's technical understanding and management plan.  This holds true even when the RFP is silent as to the scenario’s application or purpose in the agency’s evaluation, a process generally held to a relatively broad standard of reasonableness. [1]  That is, protest forums will only determine whether the evaluation was reasonable and consistent with the stated evaluation criteria set forth in the solicitation, in addition to compliance with applicable FAR and procurement statutes. [2]  The application of this rule to a hypothetical scenario was evident in the U.S. Government Accountability Office’s (“GAO”) decision in Hygeia Solutions Partners, LLC; STG, Inc. [3]

In Hygeia, the Army issued an RFP for IT services, outlining five sample efforts in which contractors were asked to provide plans to address specific problems.  [4]  Specifically, sample effort four required contractors to provide a “clear and concise solution” to a hypothetical that involved personnel and management issues. [5]  In response to that sample effort, while a contractor, STG, had offered a multi-pronged approach, the agency determined that it was unclear how the contractor’s plan would be implemented. [6]  As a result, the agency assigned several weaknesses against the contractor. [7]

The contractor’s perceived lack of clarity in addressing the sample effort had a spillover effect that factored into the agency’s decision to rate the contractor’s personnel and management plan subfactors negatively. [8]  The agency determined that the contractor failed to clearly and concisely address the sample effort and, as a result, believed the contractor did not “demonstrate a complete understanding of the RFP requirements for personnel.” [9]  Perhaps more significantly, the agency also assigned weaknesses to the contractor’s management plan because it lacked “completeness associated with . . . management process” as evidenced by the contractor’s response to the hypothetical scenario. [10]

Hygeia underscores the importance of proposal drafting and the contractor’s ability to effectively respond to the RFP in the manner specified.  Capture and proposal teams must be cognizant of hypothetical scenarios because such responses can evince a contractor’s technical understanding.  GAO will give a high deference to a contracting officer’s decision if that decision is reasonable and consistent with the evaluation criteria outlined in the RFP. [11]  In other words, GAO is likely to deny a protest challenging the use of a hypothetical in an agency’s assignment of adjectival ratings.

Tip: If a hypothetical posed in an RFP seems vague or difficult to understand, contractors should attempt to address that uncertainty with the agency before the proposal deadline.  Agencies generally have great leeway in resolving any ambiguities in an RFP with prospective contractors during the proposal period. [12]  Regardless of whether you choose to seek clarifications from the agency, contractors should diligently respond to hypotheticals and avoid using language that could indicate a misunderstanding of the scope or complexity of the problem.  A clear and meaningful response to hypotheticals can demonstrate the strength of your proposal and result in a greater chance of securing an award.

___________________________________

[1] See, e.g., Shumaker Trucking & Excavating Contractors, Inc., B‑290732, Sept. 25, 2002, 2002 CPD ¶ 169 at 3. [2] Id. [3] Hygeia Solutions Partners, LLC; STG, Inc., B-411459 et al., July 30, 2015. [4] Id. at 2. [5] Id. at 7. [6] See id. at 6–9. [7] Id. STG argued that its multi-pronged approach should have been deemed a positive characteristic of the proposal but since the solicitation asked for a “clear and concise solution,” the contractor’s argument was futile. On the other hand, Catapult (the awardee) proposed a clear, six‑step coping plan in response to the sample effort. [8] Id. at 8. [9] Id. [10] Id. [11] See supra note 1. [12] See, e.g., FAR 15.201.

DISCLAIMER: This post is for informational purposes only and may be construed as attorney advertising in some jurisdictions.  The information provided above is not intended to be legal advice and should not be construed or relied upon as legal advice.  If you need legal advice, please consult an attorney.

Recent Posts

See All

President Signs New Space Policy Directive

On September 4, 2020, President Trump signed Space Policy Directive-5 (SPD-5), which establishes a set of cybersecurity principles designed to protect the nation's valuable "space systems" from a host

Debriefing and Bid Protest Tipsheet

The end of FY20 is around the corner, which means countless government contractors have recently received an award decision (or are patiently waiting for an award decision) from a federal agency. It a

MATROSS EDWARDS

Trusted Relationship.

Trusted Resource.

Washington, DC

Florida

© 2020 Matross Edwards LLC. All rights reserved. Attorney Advertising.

  • LinkedIn
  • Twitter
  • Podcast
  • gcj_box
  • cj_box
Matross Edwards - Logo.png