By: Theodore Watson, Esq

Large businesses tend to sabotage their efforts and ultimately lose out on federal bids. As compared to small business that are limited in funds, larger businesses make careless mistakes when submitting a government RFP.

Common mistakes include:

• Mistakenly believing that they can control the federal market
• Simply ignoring the rules in the solicitation
• Not telling the government how it will solve the problem
• Arbitrarily changing the length of the proposal
• Not allowing the proposal to speak for itself

Who is in Charge?

Simply put, the government is the final decision-maker of who gets the bid award. Large businesses tend to forget this. The result – catastrophe.

Large manufacturers of IT equipment tend to be in the majority when it comes to ignoring the rules. Others include large construction contractors bidding on high-dollar construction projects. A simply word of caution is “never believe that you can outsmart the 800-pound gorilla.”

RFP Writing 101

When writing to a response to a government request for proposal, the simply questions to ask yourself. They include:

• What problem is the government trying to solve?
• Can you solve the problem?
• What is the best way to communicate that you can solve the problem?
• What special or unique requirements does the agency ask for?

If you can clearly answer these basic questions, then the RFP response should become less difficult.

Common Proposal Writing Mistakes Made by Large Businesses

When it comes to federal contract RFPs, many large organizations take the ‘gamble’ by employing technical writers that have not been adequately trained as to how the government thinks and the rules involved. For example, many have no clue of the difference between FAR Part 12, 13 or 15. These are basic requirements of writing a proposal for the federal government.

Other mistakes include:

• Focusing on the lowest bid on a best value bid
• Trying to submit required information against the agency schedule
• Assuming that a technical writer’s editing alone will win federal contracts
• Careless focus on showing off the company’s brand instead of what is best value to the government
• Focusing on price and past performance ONLY (this is a fatal mistake)
• Adding too much “fluff” in the proposal

As a former federal contracting and small business official, I have observed source selection teams and how they review submitted bid proposals. Sometimes the facial expressions can be very interesting. Expressions range from simple smirks, to simply frustration due to “trying to pull one on us” attitude.

Solving the Problem

Proposal writing is about solving the government’s problem. Nothing else matters! When a contracting officer reviews the RFP response, this is exactly what they look for.

• Focus on solving the agency problem
• Tell them how you will do it
• Include risk mitigation solutions
• Never try to make overwhelming profit margins

The agency wants to know who will be in charge and want to know each key person’s qualifications. Large businesses fail miserably in this aspect of the proposal. Thus, the technical aspect suffers.

Performance Based Service Contracts

Large businesses seem to believe that any quality assurance plan will do when writing a government proposal. The federal agencies are now required to write statements of work (SOW) or performance work summaries (PWS) to performance based standards (to the maximum extent possible).

Large contractors must ensure that their proposal writers are trained in this aspect of responding to solicitations. Our office frequently conducts training in this area.  This can make or break your technical proposal writing success.

Subcontracting Requirements

Large federal contractors MUST submit a subcontracting plan if the award is greater than $500,000.00. Contractors must take this requirement seriously.  The Congress makes it clear that small businesses must get their fair share of contracting dollars.

Many large contractors are getting smarter in this area. However, so is the government.  Common mistakes made by large businesses include:

• Seeking out small businesses at the last minute
• Not demonstrating a genuine and credible internal subcontracting program
• After the contract is awarded they never focus on acquiring the stated goals

Agencies are tightening up on this previously ignored requirement. Contractors must now demonstrate its efforts to meet subcontracting goals. Failure to accomplish may:

• Result in the government’s refusal to exercise option years
• Losing credibility with the agency

Further Assistance

If you are a medium or large business seeking consultants in federal contracting, contact Watson & Associates, LLC at 720.941.7200.

SBA Contracting Opportunities U.S. Supreme Court Government Contract Consultants FAR

8a Terminations

Watson & Associates are government contract attorneys that have a unique understanding of the SBA 8a Program. Our lawyers assist small business across the country from the early stages of termination proceedings all the way to appeal. Our services include:

• Responding to SBA letters of intent to terminate
• Reconsiderations of termination
• Preserving your rights on the record for appeal (very important)
• Appeals for 8a terminations

We also help you to:

• Respond with legal authority to support your position
• Provide appropriate documentation to support your position
• Address excessive withdrawals
• Dispute allegations of improper control
• Overcome issues in your participation agreement
• Appeal SBA termination decisions

Many government contractors have taken advantage of the SBA 8a Business Development Program due to the ability for sole source awards and other benefits. However, there is an increase in early graduation and terminations from the program. Understanding the process and how to reply to the SBA is key to your survival in the 8a Program.

SBA has Discretion to Terminate a Participant

The SBA, at its own discretion, can recommend a small business for 8a termination for various reasons. However, its actions are not exempt for checks and balances. Small businesses sometimes are surprised at such a recommendation. However, you simply have to deal with it or risk guaranteed termination. This is where the help of an experienced 8a termination attorney can be of benefit.

Proper Early Response is Critical

When the SBA sends you an initial termination recommendation letter, you must exercise great caution in how you respond. Your response MUST be timely and sufficient. Of importance is that the SBA is not required to keep asking you for information. Failure to respond within the 30 days can be itself a reason for actual termination. Although you might have a valid excuse, chances are that you will not prevail on appeal.

Reasons for the SBA 8a termination 

(a) SBA may terminate the participation of a concern in the 8(a) BD program prior to the expiration of the concern’s Program Term for good cause. Examples of good cause include, but are not limited to, the following:

(1) Submission of false information in the concern’s 8(a) BD application, regardless of whether correct information would have caused the concern to be denied admission to the program, and regardless of whether correct information was given to SBA in accompanying documents or by other means.

(2) Failure by the concern to maintain its eligibility for program participation.

(3) Failure by the concern for any reason, including the death of an individual upon whom eligibility was based, to maintain ownership, full-time day-to-day management, and control by disadvantaged individuals.

(4) Failure by the concern to obtain prior written approval from SBA for any changes in ownership or business structure, management or control pursuant to §§124.105 and 124.106.

(5) Failure by the concern to disclose to SBA the extent to which non-disadvantaged persons or firms participate in the management of the Participant business concern.

(6) Failure by the concern or one or more of the concern’s principals to maintain good character.

(7) A pattern of failure to make required submissions or responses to SBA in a timely manner, including a failure to provide required financial statements, requested tax returns, reports, updated business plans, information requested by SBA’s Office of Inspector General, or other requested information or data within 30 days of the date of request.

(8) Cessation of business operations by the concern.

(9) Failure by the concern to pursue competitive and commercial business in accordance with its business plan, or failure in other ways to make reasonable efforts to develop and achieve competitive viability.

(10) A pattern of inadequate performance by the concern of awarded section 8(a) contracts.

(11) Failure by the concern to pay or repay significant financial obligations owed to the Federal Government.

(12) Failure by the concern to obtain and keep current any and all required permits, licenses, and charters, including suspension or revocation of any professional license required to operate the business.

(13) Excessive withdrawals, including transfers of funds or other business assets, from the concern for the personal benefit of any of its owners or any person or entity affiliated with the owners that hinder the development of the concern ( see §124.112(d).

(14) Unauthorized use of SBA direct or guaranteed loan proceeds or violation of an SBA loan agreement.

(15) Submission by or on behalf of a Participant of false information to SBA, including false certification of compliance with non-8(a) business activity targets under §124.507 or failure to report changes that adversely affect the program eligibility of an applicant or program participant under §124.204 and §124.112, where responsible officials of the 8(a) BD Participant knew or should have known the submission to be false.

The SBA 8a Termination Letter

If you receive notice of SBA recommendation for an 8a termination or for early graduation, you must act quickly and concisely. You must respond within 30 days of receipt of the letter.

A key aspect of the 30-day response is that you must respond with a thorough explanation to support your position. In addition, you must support your position with enclosed documentation. A simple and unsupported explanation will not suffice.

To protect your rights you should consider:

• Consider retaining an attorney
• Ensure that you respond with a detailed response (short letters will not suffice)
• Provide as much documentation to support your response
• Provide copies of checks, tax records, letters from your CPA (if applicable)
• You can also request reconsideration in addition to the above points

If you fail to provide a detailed and supported response, you can lose your 8a termination appeal very easily. This can result in actual termination. Alternatively, the SBA has an implied duty to act reasonably. The congressional intent of the SBA is to assist and help small businesses to succeed and not engage in arbitrary and capricious decisions.

In a perfect world the SBA should request additional information if your response to the termination letter lacks information. However, the case law suggest otherwise.

The bottom line is to “get it right the first time.” Consult with an experienced 8a termination lawyer to protect your rights.

Legal Authority is Key to an 8a Termination Challenge

The SBA does have the ability to make a ‘business judgment’ decision in the best interest of the public. It has a lot of latitude to take adverse actions. It is important to know that the standard on appeal is not to substitute the decision. Instead, an appellate court is charged to decide only if the SBA abused its discretion or acted contrary to law. The benefit of having experienced counsel cannot be overemphasized.

The 8a Termination Process

After you respond to the 30-day recommendation letter, the SBA may choose to move forward with its recommendation to Washington D.C.  At the headquarters level, a final agency decision will be in the form of a termination letter from Washington D.C.

After receipt, you then can appeal the decision. Time is of the essence.  Many businesses take on this complex task on their own only to find out that there also is a legal analysis that could save the day. Failure to strengthen your appeal with legal analysis can be disastrous.

If you are subject to early graduation or actual 8a termination from the SBA 8a certification program, seek help from a government contract law attorney quickly.

For more information, contact Watson & Associates, LLC at 720.941.7200 or Toll Free at 1-866-601-5518 for immediate assistance.