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.