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GAO Upholds Restriction on Using Consultants to Develop a Proposed Technical Approach

The U.S. Government Accountability Office (GAO) recently denied a protest challenging as unduly restrictive an express prohibition on the use of consultants to develop a proposed technical approach. The GAO concluded that such a prohibition is similar to an agency’s decision when evaluating proposals to only consider the experience and past performance of an offeror. This conclusion, if relied upon in future solicitations, could have a significant impact on both large and small contractors that rely on third parties when drafting proposals.

The solicitation at issue contemplated the award of multiple indefinite-delivery, indefinite-quantity contracts for the provision of “total” information technology service solutions to the U.S. Department of Veterans Affairs (VA). The solicitation instructed offerors to describe a proposed technical approach for “sample tasks” identified in the solicitation as a means to “test” offerors’ “expertise and innovative capabilities” to respond to circumstances that could arise during contract performance. Offerors were prohibited from using consultants to develop their proposed technical approach for sample tasks. Although an offeror could rely on consultants when drafting other components of its proposal, the offeror’s proposed technical approach for sample tasks had to be the “work of the Offeror” and any subcontractor with which the offeror had a formal teaming arrangement.

The VA supported the solicitation’s restriction on the use of consultants by reasoning that requiring an offeror to develop a proposed technical approach without the assistance of a consultant would increase the likelihood that the technical approach would be based on the knowledge and abilities of individuals who would actually be involved in contract performance. The VA maintained that it had previously received identical responses from multiple offerors in circumstances in which the use of consultants was allowed.

The protestor argued that the means by which the VA sought to achieve its goal of ascertaining the actual capability of an offeror was at the same time both overly broad and insufficient, as well as unduly burdensome on small businesses. The protestor highlighted, for example, that an offeror could intend to continue its relationship with a consultant during contract performance and that the solicitation did not require those individuals who prepared an offeror’s proposal to also be involved in contract performance. The protestor also noted that small businesses with limited resources could be required to enter into teaming arrangements with large businesses and risk their small business status simply to gain assistance necessary to develop their proposals.

The GAO rejected the protestors arguments, however, maintaining that the VA had a legitimate interest in reducing the risk of unsuccessful contract performance and eliminating the possibility that an offeror would submit a proposed technical approach that failed to reflect the offeror’s actual capabilities due to the offeror’s reliance on a consultant in drafting its proposal. The GAO also highlighted that an offeror was free to use a formal teaming arrangement to engage a “consultant” to assist in both the development of a proposed technical approach and contract performance, and indicated that the potential impact of such a solution on small businesses was an unobjectionable byproduct of a requirement that reflected the needs of the VA. The GAO concluded that the solicitation’s limitation on the use of consultants was similar to an agency’s decision when evaluating proposals to consider only the experience and past performance of an offeror because the purpose of the limitation was to “gauge an offeror’s ability to successfully perform the contract.” Citing decisions in which the GAO had upheld limitations on an offeror’s ability to tout the experience and past performance of teaming partners and subcontractors, key personnel, and individual members of a newly formed joint venture, which were justified in part by the government’s inability to guarantee that an offeror would use the resources of these third parties in contract performance, the GAO reasoned that the solicitation’s restriction on using consultants was a similarly acceptable means of protecting the government’s interest in evaluating the independent capabilities of an offeror.

Although the GAO’s decision is potentially sweeping in scope, contractors can take some comfort in the fact that the GAO has previously found similar restrictions relating to experience and past performance to be unduly restrictive when an offeror can firmly demonstrate that the resources of a third party will be used in contract performance. In addition, the GAO’s reasoning suggests that a complete prohibition on using consultants in the development of proposals may be impermissible because an offeror’s independent ability to compile non-technical components of a proposal arguably would not have a significant bearing on the offeror’s ability to perform a contract. The GAO’s decision may also be fact specific in that an offeror’s ability to independently prepare a technical proposal with innovative solutions arguably could be more indicative of an offeror’s ability to perform an indefinite-delivery, indefinite-quantity contract in which the offeror is expected to respond to task order requests issued under a broad statement of work than an offeror’s ability to perform a single-award contract with relatively clear requirements.

Notwithstanding these potential limitations, the GAO’s decision could have a significant impact on contractors that rely on third parties to prepare their proposals. Small businesses in particular may have difficulty implementing the GAO’s suggestion to enter into formal teaming arrangements given that such arrangements could have a negative impact on their small business status. Contractors should be aware that similar restrictions on the use of consultants may be included in future solicitations and consider whether these restrictions could impact their ability to submit successful proposals.

© 2022 Covington & Burling LLPNational Law Review, Volume V, Number 93
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About this Author

Tyler Evans, litigation lawyer, Covington
Associate

Tyler Evans has experience working closely with clients to resolve issues arising from their participation in government contracting.

Mr. Evans’s practice covers multiple subject-matter areas, including contract negotiations, flow-down requirements, schedule contracts, small business issues, sourcing restrictions, compliance, cost disputes, and mergers and acquisitions. He has advised companies working in a broad range of industries, including life sciences, defense, information technology, energy, and construction.

202.662.5836
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