Why It’s Important to Pay Attention to RFP Terms & Conditions

We can learn a lot from bid protests. Today, we review a protest from Leidos Innovations Corporation that proves just how important it is to review the RFP with a fine-toothed comb.

Details of the Bid Protest

Contract/Task Order: Army Rapid Response Third Generation (R2-3G)/U.S. Special Operations Command Tactical Airborne Multi-Sensor Platform (STAMP) Operational and Sustainment Logistics (Request for Task Order Execution Plan (RTEP No. R2-3G-0871))

Protesting Entity: Leidos Innovations Corporation

Background: The RTEP was issued in February 2016 and included training, primary mission equipment operations, maintenance and sustainment, system integration and installation, engineering services and system deployment, and relocation and demobilization support for the STAMP program. The places of performance included contractor’s facilities, government facilities or both, within and outside the U.S., including remote, primitive, or austere environments. The agency received six quotations, and after conducting evaluations and discussions, concluded that Leidos was in line for award. However, before award could be made, the CO had to assess the potential awardee’s responsibility per FAR 9.103. To read the full debrief, click here.

Subject of the Protest: The CO, as part of the responsibility assessment, learned through the Joint Contingency Contracting System (JCCS) that a proposed Leidos team subcontractor with a significant role in executing the task order had an adverse action on record and therefore was banned by the Combatant Commander from working in the AOR. Therefore, the CO determined that Leidos was non-responsive even though they were the lowest price and had the highest evaluated technical solution. The award was then made to another bidder. Leidos argued that the CO’s finding was unreasonable and that discussions should have been held regarding the responsibility determination. GAO denied the protest.

Don’t Forget About the RFP Terms, Conditions, and Clauses

Bidders must pay attention to ALL terms, conditions, and clauses even in a task order RFP. In this case, the following two terms were either overlooked or not understood thoroughly and resulted in Leidos not receiving the award and losing the protest:

  • The RTEP clearly stated that contractors were subject to Combatant Commander oversight to ensure compliance with all policies and directives.
  • The RTEP also informed offerors that the CO would make a responsibility determination prior to award of the task order.

As a prime bidder, Leidos should have more thoroughly vetted their team subcontractors, and requested them to state whether they could be determined “non-responsive” in the given AOR for any reason.

However, the subcontractor was culpable as well. From a business ethics standpoint – and potentially a legal standpoint as well, depending on what terms and conditions were in their subcontract – they should have informed Leidos that they were banned from the place of performance and recused themselves from participating in the bid.

In this case, both the prime and subcontractor created a situation where, despite putting forth the best overall bid from a price and performance standpoint, ran afoul of other provisions in the RTEP that had to be met to guarantee a successful bid.