jakobradlgruber @123RF

G2X Media’s President, Susan Sharer, had the opportunity to sit down with procurement expert Rob Burton to discuss the current environment, protests, partnerships, what is critical to understand in the face of a changing political climate, and his recommendations for industry.

Frustrating Time

Industry is no doubt experiencing some frustration at the moment because of the COVID-19 pandemic. A large number of the procurements that contractors had been expecting will be delayed. That being said, there are a lot of opportunities that couldn’t have been predicted just a few months ago. For example, there are significant opportunities for management consulting firms that are capable of supporting agency oversight and compliance functions. The Government has not had much time to focus on oversight, but we are already hearing concerns from Congress about the appropriate use of loan and grant money related to the Government’s response to the pandemic. I would encourage companies that have oversight and fraud detection capabilities in their portfolio to think about how they might help agencies in this new environment.

Stay Focused

Regardless of all that is happening, Government still has to process high-priority procurements. These procurements cannot be put on hold for long. It is important for companies to keep pressing, keep communicating, keep preparing to move forward when the time is right.

Needless to say, it can be a challenge for agencies to communicate with industry, especially when it comes to conducting market research. I am amazed at the number of defective Request for Proposals (RFPs) that hit the street. Some of these RFPs require out-of-date technology, some have unrealistic objectives, and some are simply too complex, usually because comprehensive market research has not been conducted. It is critical for agencies to communicate with industry and to conduct robust market research. Government agencies need to know what companies have to offer and what is realistic to achieve.

Perspective on Protests

The actual number of bid protests, considering the total of contract awards in any given year, is really not very high. Only about 1% of contract awards are protested. Nevertheless, agencies often add time to the procurement planning process to account for potential bid protests.

Some agencies have also become quite sophisticated in how they address protests. For instance, corrective action can mean simply re-evaluating an initial award decision and reaffirming the agency’s decision. The Government Accountability Office is often reluctant to go behind an agency’s corrective action and reopen the case. From an industry perspective, it is important for contractors not to be shy about filing a protest if they have a valid basis to protest. The Government does make mistakes and agencies generally do not look unfavorably on contractors who file protests for good cause. For example, we sometimes see agencies that evaluate companies based on criteria never included in the RFP. This is improper and the Government will generally lose a protest if the agency has failed to follow its own evaluation criteria.

Small Business Partnerships

Small businesses often subcontract work to large businesses. The trap that many small businesses fall into is around the limitation on subcontracting rule, which states that a small business must perform at least 50% of the work. Where a large subcontractor ends up doing most of the work, both the small and large contractors face serious legal risks. Additionally, it is interesting to note that the small business participation rate has declined in recent years, but the dollars going to small businesses have increased. Thus, Government agencies are meeting their small business goals, but more small business find it harder to access the Federal marketplace.

Preparing for Changing Political Climate

At any point in time we can say that the political climate is unpredictable. But, it is important to remember that the procurement process is fairly well insulated from the political process. Some priorities may change based on politics, but generally the procurement process keeps moving regardless of who is at the helm. Consequently, developing business relationships with short-term political appointees is far less important than building relationships with career executives who will stay for possibly decades. Companies focus on getting to know agency program managers, which makes sense, but it is the career procurement executives who are often overlooked. They are the ones who have influence over strategic procurement decisions, such as contract type, contract vehicle, competition and small business set-asides.

Recommendations for Commercial Companies

The Government needs help from non-traditional contractors, now more than ever, and a lot of agency procurement executives have indicated that they are looking for new blood. This new blood is likely to come from commercial companies that may have never done business with the Government before, but are positioned to bring the special skills and expertise that the Government needs.

There is currently an extraordinary opportunity for commercial contractors who can deliver efficiencies and new skills to the federal marketplace. It can be frustrating, but also rewarding, to work with the Government. I would strongly encourage innovative, commercial companies to step into the water and see where they can support critical agency missions.

About Robert A. Burton

Rob Burton is a partner in the Government Contracts Group at the Crowell and Moring law firm in Washington, DC. He is a nationally-recognized leader in Federal procurement who assists Government contractors with the complex and rule-driven procurement process and their ethics and compliance programs. He also assists contractors with their marketing strategies for selling to the Federal agencies, provides expert witness testimony in arbitration and Federal court cases, works with senior agency procurement officials to resolve contract issues, and represents contractors and non-profit associations seeking procurement policy changes in Congress. 

A thirty-five year veteran of procurement law and policy development, Mr. Burton served in the Executive Office of the President as the Acting and Deputy Administrator of the Office of Federal Procurement Policy (OFPP), the nation’s top career Federal procurement official. At OFPP, Mr. Burton prepared policy positions and worked with House and Senate committees on the development of acquisition legislation. He also served as the principal spokesperson for Government-wide acquisition initiatives and chaired the Federal Acquisition Regulatory (FAR) Council and Chief Acquisition Officers (CAO) Council. 

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