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Feb. 19 — Contractors should take a good look at the contents of their websites, which may cost them competitions or their small-business status, according to government contract attorneys.
This advice may have helped awardee PricewaterhouseCoopers Public Sector LLP in the recently issued Deloitte Consulting LLP (GAO, B-411884, 11/16/15, decision released 1/14/16). In this case, the Government Accountability Office (GAO) said an awardee improperly received credit for its corporate parent's experience.
The awardee submitted a quotation stating that it focused on providing services to government entities, while the corporate parent's website stated that its focus was providing services to the private sector.
The awardee's quotation didn't explain how it would work with its corporate parent during performance in a way that justified receiving credit for the corporate parent's experience, the GAO said.
The risks posed by websites aren't new: Contractors have had their websites used against them almost as long as the Internet has existed.
Shlomo D. Katz of Brown Rudnick LLP said he and his colleague Kenneth Weckstein were the first to successfully argue that the GAO should use an offeror or contractor's website against it in 1997.
In that case, the GAO specifically noted that an unsuccessful offeror's website didn't show that its software could operate on a Sun Microsystems Inc. platform, and therefore the agency properly viewed Cincom as technically unacceptable.
Katz said contractors “should regularly review their websites, update their product and service offerings, highlight contracts that have gone well, and consider removing references to projects that have not gone well.”
Katz said he always examines his client's and opposing party's websites, and has used that information to argue in a bid protest that a company lacked the experience it claimed.
“For example,” he said, “if the contract is to design a hospital, but all the projects on the architect's website are airports, that raises questions. It won't win the protest, but it will get the protestor's foot in the door with a credible claim.”
He added that he has used website information to argue in a size protest that the allegedly small business was affiliated with other businesses.
“This can happen in a number of ways, for example, if the website lists an employee count or shows revenue exceeding the size standard,” he said. “Again, this won't win the day, but it lends credibility to the filing and gets the Small Business Administration's attention.”
Finally, Katz said many companies aren't careful about distinguishing on their website between subsidiaries, which is the opposite of the problem in Deloitte, where the website clearly said what each division did.
“If the divisions hold themselves out as a unified organization, the bad performance or wrongdoing of one might be attributed to another, or an argument might be made to pierce the corporate veil,” he said.
Michael F. Mason of Hogan Lovells US LLP said most of his experience using website information has involved an offense-minded perspective. For size appeals, he said websites can provide information on a competitor's officers, facilities and location that could show evidence of affiliations that would render a competitor ineligible for a small-business set-aside.
“In large corporations,” he said, “the competitors will sometimes include information on a website about the design and capability of the system that the competitor intends to offer. For large programs, a competitor may even set up a separate web page dedicated to its solution for the program. In addition to providing competitively useful information to competing bidders, the information may be useful in bid protests that challenge an agency’s technical evaluation of proposed solutions.”
For IT procurements, Mason said website information may provide evidence to support a challenge against an awardee’s compliance with the solicitation terms. A website, he said, could reveal that an IT solution lacks compatibility with a required system or fails to meet commercial off-the-shelf requirements.
Finally, Mason said, website information can:
• support a challenge to an agency's evaluation of a competing offeror's experience rating;
• support a challenge to a competitor's compliance with the Trade Agreements Act and other sourcing restrictions; and
• reveal true backgrounds of proposed key personnel and provide evidence of an improper “bait and switch” by an awardee.
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