Jump to content

Corrective Action on Bid Protest


JackSparrow

Recommended Posts

My company recently protested an award to another bidder on a government project. The protest centered around the agency adjusting my company's rate upwards of the proposed cap. In essence, making our originally less expensive proposal fall into the second less expensive proposal. The less expensive proposal, not the incumbent, was awarded the contract. The agency rescinded the award to the lowest bidder and has now opened the competition up again with revisions to the solicitation. As part of the corrective action, the agency issued the following question: 

Question 4: Please provide documentation to support the basis for proposed direct labor rates. Documentation should be adequate enough to allow the Government to determine if the proposed direct labor rates are fair and reasonable. The preferred documentation is a copy of a payroll stub for each position listed in the labor category chart under section 5.0 LABOR CATEGORIES AND QUALIFICATIONS of the solicitation. The payroll stubs provided shall be dated within the 2019 calendar year.

 

It would seem that of all the bidders on the project, the incumbent bidder would be positioned to best present payroll stubs for each position outlined in the Government's project. Is this allowable? We have confirmed that this question was sent to all bidders and the payroll stub documentation is not a mistake. Any advice would be appreciated. Thanks

Link to comment
Share on other sites

3 hours ago, JackSparrow said:

Is this allowable?

Is what allowable?  Are you asking whether the solicitation can call on offerors to provide documentation on direct labor rates and to state a preference for recent payroll stubs?  What is the contract type?  Does the solicitation include the Evaluation of Compensation for Professional Employees provision at FAR 52.222-46?

It would seem that if the solicitation anticipates awarding a cost-reimbursement contract and it calls for the Government to evaluate the cost realism of individual cost elements, including direct labor, then asking for documentation to support the realism of proposed labor rates would be permissible.  (That said, I don't understand the reference to "fair and reasonable."  Maybe that is just a reference to the level of detail required.)

Link to comment
Share on other sites

47 minutes ago, JackSparrow said:

The contract type is cost-reimbursement. Understand that asking for documentation to support realism is permissible but when we asked the question of whether the paystub preference was intendent for the incumbent, the response from the agency was that paystubs were required.

Here's what I would do:  I would treat as binding the language of the solicitation that the payroll data is preferred, not required.  If you currently have any employees that would fall within one or more of the labor categories described in the contract or solicitation, provide the payroll data and an explanation for any departure.  For those labor categories in the solicitation for which you don't have any current paystub data, provide the research you did on the labor market and explain why the direct labor rate you are proposing for each labor category is realistic--that is, not too low--for the labor markets involved.

Link to comment
Share on other sites

Well, I thought the agency established that pay stubs were preferred, not mandatory.

How is it unstated?  It seems as though it is stated in Question 4.

Don’t answer here — but you should expect to address these matters as the protest works its way through the process.  

Link to comment
Share on other sites

22 minutes ago, JackSparrow said:

Update:

We filed a pre-award protest stating that the requirement that direct labor rates be substantiated only with payroll stubs is unduly restrictive; is unstated evaluation criterion; and the agency abused its discretion in conducting discussions. We will see how it goes.

Sorry for my earlier comments.  I misunderstood where in the process you were.  I assumed the Government had just requested revised proposals.  If the unstated evaluation criterion protest is ripe, the source selection is further along than I understood.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
×
×
  • Create New...