EDITOR'S NOTE:
The
following article by Bob Lohfeld in “Washington Technology” a few years ago is still an excellent
primer on the challenges associated with subcontractor management
when teaming with other firms in small business federal government contracting. I work with clients regularly who are encountering these risks. Ken Larson
"WASHINGTON
TECHNOLOGY"
"Have you ever had a subcontractor kill your bid? Surprisingly, it’s not
all that infrequent that a subcontractor can do you in.
Here are some of the situations we have seen this year from companies who
have called us for help, generally after it is too late to fix the
problem. Since many of these teaming nightmares could have been prevented
with some good counseling earlier in the bidding process, I thought I
would share some of these with you and also offer advice that you can use
to keep these problems from happening to you.
Subcontractor teaming restrictions
A recent government solicitation stated that prime contractors were
encouraged to team with multiple smaller businesses in order to fulfill
the socioeconomic goals of the procurement. The request for proposals
further stated that subcontractors shall be limited to teaming with only
one prime contractor and cannot be a subcontractor on multiple teams. I’m
sure you have seen this kind of restricted teaming language before.
The prime contractor who called said they selected their small business
subcontractors and executed teaming agreements with each, wrote a fine
proposal which was submitted on time, and then got a letter back from the
government saying their proposal had been rejected.
They explained that apparently, their subcontractor thought that if
teaming with one prime contractor was good, teaming with multiple primes
was better. Even though the subcontractor signed an exclusive teaming
agreement with the prime contractor, they teamed with multiple companies
in order to increase their chances of winning. All prime contractors who
teamed with this subcontractor had their proposals rejected.
We told the prime that in the future, when an RFP contains specific
language restricting subcontractor teaming, we recommend that this
language be included in an addendum to the teaming agreement and the
addendum be signed by an executive of the subcontractor certifying that
they have teamed in accordance with the teaming restrictions.
Regrettably, in this case, it was too late to correct the problem.
Subcontractor conflict of interest
A solicitation required the prime and its subcontractors to individually
certify that they had no organizational conflict of interest (OCI). Less
than one week prior to submission, the subcontractor’s contracting
officer (CO) on a related contract indicated he thought the subcontractor
had an OCI on the job the company was bidding.
The subcontractor communicated the news to the prime and indicated the
issue was resolved. The subcontractor signed the OCI certification, and
the prime contractor submitted the proposal. Shortly after the proposal
was submitted, the contracting office notified the prime contractor that
their bid had been rejected due to the subcontractor’s OCI.
The prime contractor challenged the rejection by asking the CO to
evaluate the bid without the subcontractor’s input, and while the CO
sympathized with the prime contractor, the decision rejecting the bid
stood.
Clearly this subcontractor wanted to run from its OCI problem and signing
a statement that a conflict doesn’t exist does not make the conflict go
away. We advised that the prime to get an OCI determination directly from
the government before submitting its proposal and if this could not be
resolved prior to submission, the prime should either submit an OCI
mitigation plan with its proposal or submit an alternate proposal without
the subcontractor rather than risk its entire proposal being rejected
because of an unresolved OCI problem.
Getting the subcontractor to certify that an OCI problem does not exists
is not sufficient since it is the government who is the final arbitrator
of whether or not there is an OCI issue. Relying on the
subcontractor’s certification statement cost the prime contractor its
bid.
Subcontractor poor past performance
A prime contractor identified several small businesses that had direct
contract experience with the customer and invited these companies to join
their team. The sales reps from the small businesses boasted how well
they knew the customer, how strong their relationships were, and how
insightful they were about the work being competed. It was a perfect
match, and the prime signed up the subcontractors.
The prime and the subcontractors worked hard on the proposal. The prime
submitted the bid, and shortly thereafter was told they lost. In the
debriefing, the government indicated the subcontractors’ past
performances was marginal and was overstated in the proposal. As a
result, the government down-scored the proposal based on the poor
subcontractor past performance and overstated claims.
I suppose no sales rep has ever told a prime contractor that his/her
firms performance was marginal and they had a lousy relationship with the
customer. After all, sales reps wouldn’t last very long in that position
if they didn’t put a positive spin on a marginal situation.
Subcontractors with extreme
incumbentitis
The government changed the size standard on the recompete of a contract,
forcing the incumbent to look for a company with the right size standard
and socio-economic certification to prime their contract. After careful
deliberation, they identified a partner who had a long-term history with
the client and an outstanding reputation. The teaming agreement was
signed and the proposal was begun.
Next, the incumbent proceeded to make the new prime’s life miserable.
They developed an extreme case of incumbentitis, could not understand the
necessity of improving their processes on the new contract, thought every
benefit rested on the argument that they were the incumbent, and were
extremely cautious sharing information with the prime contractor even to
the detriment of the bid.
The incumbent insisted that the proposal only had to conform with section
C (statement of work) of the RFP, not section L (proposal instructions)
and M (proposal evaluation criteria). According to subcontractor, they
never paid attention to L and M, only the SOW. They were quite adamant
and disrupted all review meetings.
To resolve these issues, we arbitrated a meeting between the top
executives of both firms resulting in the subcontractor changing out the
people supporting the proposal. With new, more reasonable players
involved, progress is being made towards a winning proposal but much
valuable time has been lost in the exercise of forming a highly functioning
team. We’ll have to wait to see how this one turns out.
A positive outlook on teaming