Blank Rome LLP

With apologies to Paul Simon, this is another in a series of articles on the 50 ways contractors can lose awards on federal contracts. These cautionary tales should inform anyone in a contractor organization with responsibility for authorizing, preparing, or negotiating competitive federal contract proposals.

Like the inverse of Steven Covey’s Seven Habits of Highly Effective People bestseller, the mistakes that lead to lost awards are well known and include: carelessness, greed, lack of attention to detail, procrastination, and cursory (or omitted) red-team reviews. This article highlights another surefire path to disaster: failing to adequately correct proposal weaknesses after discussions.

This lesson arises out of a clash between BNA and Lexis, legal search titans, over a U.S. Treasury contract. The combatants were seeking award of a contract for electronic research services for IRS staff, described in a GAO Bid Protest decision, LexisNexis, a Division of RELX Inc., B-418885; B-418885.2 (October 8, 2020).

Treasury’s solicitation required that offerors both describe their search solutions in technical proposals, and have a working computing solution, active for government testing. After initial proposal submissions and initial evaluations, the government advised offerors of weaknesses and deficiencies in their proposals and in their computing solutions. Treasury advised Lexis that its proposal suffered from a significant weakness due to Lexis’ computing solution’s return of erroneous search results. Discussions were opened and offerors were permitted to submit final proposal revisions. Offerors were also permitted to correct any deficiencies in their computing solutions before another round of government testing.

In its final proposal revision, Lexis addressed the significant weakness in the revised proposal narrative, but apparently failed to thoroughly test the search results on the live computing system. When the government ran the test again after final proposal revisions, the search results were again deficient.

The government awarded the contract to BNA in part due to Lexis’ failure to fully correct the significant proposal weakness. Lexis protested the award, challenging the significant weakness and raising several other evaluator errors. In the GAO protest litigation, Treasury acknowledged making evaluation errors, but Lexis’ proposal still could not survive Lexis’ failure to adequately correct the significant weaknesses.

It is difficult to overcome a significant proposal weakness. However, if discussions are held and there is a chance to cure the weakness in a final proposal revision, invest 125 percent of effort in doing so. What not to do is to presume that the agency will overlook a previously cited weakness that is not fully resolved in the final proposal revision.

Lexis learned the hard way that no stone can be left unturned when remediating a significant proposal weakness or deficiency the agency identifies in the discussions process. Significant weaknesses or deficiencies are often fatal, but if given the chance for correction, offerors must be stone-cold sure that the weakness is cured beyond any doubt.

×