7 predictions for the new normal post-pandemic

What will our world look like a year from now? Experts and futurists agree that we can expect big changes, and that they will be for the better.

For the past six months, the global community has been staring down a health and economic crisis of unprecedented scale. During this time, “normal” has taken on a whole new meaning. Amid the hardship, glimmers of optimism have emerged, and the next version of normal is slowly taking shape. What will the business world look like a year from now? We’ve asked experts from across the globe to share their predictions.

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Do Not Expect High Technical Scores if your Proposal Relies on Upgrades Not Available for Contract.

By Dick Lieberman, Consultant and Retired Attorney

The Government Accountability Office (“GAO”) denied a protest where the protester’s technical solution relied on upgrades to an information technology tool which would not be available for a significant period of time after contract award. Lockheed Martin Corp., B-410329 et. al, Dec. 11, 2014. The Army Corps of Engineers (“Corps”) sought enterprise-wide information management/information technology (“IM/IT”) services throughout the United States. The solicitation advised that award would be made on a best value basis considering the following evaluation factors: (1) technical/business management (including mission solution and program integration); (2) past performance; (3) small business participation plan; and (4) price/cost.

Here is the timeline regarding Lockheed’s proposal and the award:

• July 2013 - proposals were submitted, and evaluated thereafter. The Corps was concerned about Lockheed’s reliance on “dataBoard 4.0,” an IM/IT tool that was not fully developed and wouldn’t be fully deployed for up to two years after contract award.

• September 2013 - the agency opened discussions and told Lockheed that it was concerned about dataBoard 4.0 because there was no tangible evidence of the product’s capabilities, and the timeline for full deployment of 2 years was “unacceptable.”

• November 2013 - Lockheed submitted proposal revisions, asserting there was “no reliance on dataBoard 4.0” but its proposal continued to make multiple references to the use of dataBoard 4.0.

• March 2014 - the agency reopened discussions, and once again expressed its concern regarding Lockheed’s reliance on dataBoard 4.0, identifying multiple portions of Lockheed’s proposal which indicated that dataBoard 4.0 was “a key component” of the proposal. It stated that the need for dataBoard 4.0 was a weakness.

• April 2014 - offerors submitted final proposal revisions, and in its submission, Lockheed simply deleted its prior references to dataBoard 4.0, frequently referring instead to “dataBoard” without identifying the version to be used or to other software tools.

Following evaluations of final proposals, Lockheed and Exelis (the awardee) were rated as follows:

Exelis Lockheed Technical/Business Management Outstanding Acceptable Past Performance Relevant/Substantial Very Relevant/Substantial Confidence Confidence [prior incumbent] Small Business Outstanding Outstanding Price/Cost $516.8 million 504.2 million On June 20, 2014, the Corps Source Selection Authority (“SSA”) selected Exelis’s proposal for award. In its decision memo, the SSA stated that Lockheed had one significant weakness, namely, its reliance on dataBoard to perform the services required even though there were a number of areas where capabilities being relied on were not part of the current dataBoard.

The SSA also stated that Lockheed provided an inaccurate listing of current dataBoard capabilities, and Lockheed’s reliance on capabilities which were not yet developed presented a high risk to successful contract performance. The SSA noted that there were significant differences between the prior contract performed by Lockheed and the current requirements. “The payment of an additional $12.6 million over the entire contract period for Exelis’s superior technical proposal clearly offers significant benefits to the government with very low risk of unsuccessful performance.” Lockheed protested, asserting that the Corps had misevaluated its proposal.

After examining the record of discussions, proposals and final proposal revisions, the GAO denied Lockheed’s protest because it was clear that the dataBoard upgrades were needed to meet the solicitation requirements, and Lockheed’s proposal “specifically recognized that a portion of the upgrades would not be available [at Authorization to Proceed].” GAO agreed that this was a significant weakness, and GAO had no basis to question the agency’s evaluation of the technical proposals.

Tips:

(1) If you need upgrades to your systems in order perform the work in any solicitation (or to meet a contract specification), be sure that the upgrades will be available and ready for use when the contract is awarded, or, if permitted, when the authorization to proceed is to be issued.

(2) “Fuzzing over” in your proposal the version of an IM/IT (or any other) tool needed for contract performance, as Lockheed did, is likely to be recognized when an agency evaluates your proposal. Lockheed would have been better served by either accelerating development of dataBoard 4.0 so it would be available by the start of the contract, or if dataBoard 4.0 could not be made available, by using another tool that could meet the solicitation requirements.

Copyright 2015 Dick Lieberman, Permission Granted to the Maryland PTAC. This article does not provide legal advice as to any particular transaction.

Test Your Knowledge of Change Orders And Equitable Adjustments

By Dick Lieberman, Consultant and Retired Attorney

You are a construction company that receives a contract to modernize the Internal Revenue Service center. Among other things, the contract requires you to provide a security system. As explained below, the security cabling for that system is required to be “concealed or in conduit (EMT) [Electrical Metal Tubing].”

Your contract states the following:

General Provisions:

1.17 Conduit is required in all unfinished areas where cables cannot be concealed above the ceilings on raceways or in hollow walls or placed in existing cable trays. Cables are concealed when they are run below the raised flooring and above the drop ceiling.

12. All security system cabling shall be enclosed in conduit when exiting the protected [limited access] area.

Definitions and Instructions

7. “Concealed” (as applied to circuitry) – Covered completely by building materials

8. “Exposed” (as applied to circuit) –Not covered in any way by building material

Work of Other Trades

All cabling shall be concealed or in conduit (EMT) unless specifically approved in writing by the contracting officer.

Installation

All security wiring shall be concealed or in conduit as noted.

Conductors and Cables

Conceal cables in finished walls, ceiling and floors unless otherwise directed.

Your bid contemplated the use of PVC [Poly Vinyl Chloride] cable which is “cable tray rated”. The legend on the drawing requires the security cable to be plenum or PVC cable. You begin to install PVC security cabling in cable trays in a raised access flooring system.

The Contracting Officer (“CO”) directs you to install the security cabling in EMT conduit “per the contract.” You explain in detail to the CO that you disagree with his interpretation of the contract, but the CO is adamant, so you comply with the CO’s direction and install all the

security cabling in EMT conduit. You then submit your claim for $491,000 in extra costs for installing in conduit. You state that the use of a cable tray, placed underneath the raised access flooring system or above the drop ceiling meets the contract requirement of being “concealed” because the raised access flooring or drop ceiling each are composed of “building materials” that completely cover the cables.

Will you win your claim? The contracting officer denies your claim, and you appeal the denial to the Civilian Board of Contract Appeals (“CBCA”). How will the CBCA rule? In Columbia Const. Co. v. General Services Administration, CBCA 3258, Jan. 20, 2015, the CBCA granted the entire claim, noting that the contract’s plain language indicated that the company had the option of either concealing the security cable in building materials or installing it in EMT conduit. The CBCA said:

The raised access flooring and drop ceiling were areas that were covered by building materials and the [contractor used the specified installation method]....The terms of the contract allowed appellant to install the security cabling in cable trays under the raised access floor and above the drop ceiling. Where conduit was specifically called out by size in drawings, [the contractor] had the option of using cable trays, so long as the surrounding building materials covered the cables completely and the security cable was installed using [the specified installation method] .... There are other portions of the contract where the drafters indicated that security cables are sufficiently “concealed” when they are run below the raised flooring system or above the ceilings in cable trays. [Cites section 1.17 of specification].

Tips:

(1) It is crucial that both the CO and contractor read the entire contract carefully. Contract interpretation begins with the plain language of the contract, and here, the plain language allowed the contractor to use cable trays with concealment. If the CO wanted the use of EMT conduit throughout, he could have modified the contract to demand EMT conduit for all security cabling—but this would have required a formal written modification. Such a modification would have granted the contractor the right to an equitable adjustment—which the contractor received anyway by the CBCA because the CO made a constructive change to the contract (a change to what the contract required without issuing a formal written modification).

(2) Just because a CO disagrees on the interpretation of a specification doesn’t make the CO right. Similarly, the contractor is not necessarily right in its interpretation. However, rather than facing a possible default with noncompliance with specifications, Columbia Construction took a safer route—it complied with the CO’s direction and then filed an appropriate claim for the constructive change. The Board agreed with Columbia.

Copyright 2015 Dick Lieberman, Permission Granted to the Maryland PTAC. This article does not provide legal advice as to any particular transaction.