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Maryland Procurement Alert: MSBCA Holds That a Prospective Offeror was Properly Excluded from Competition Because it Assisted in Drafting the RFP

Maryland Procurement Alert: MSBCA Holds That a Prospective Offeror was Properly Excluded from Competition Because it Assisted in Drafting the RFP

BEWARE: if you “assist” the State in drafting the Solicitation, you may be disqualified from competing for the contract. Trouble is, what deeds constitute “assistance” are unknown and hardly knowable until after the deeds are done.

In MGT Consulting Group, LLC, MSBCA No. 3108, the MSBCA addressed as a matter of first impression whether a potential offeror, MGT Consulting Group, LLC (“MGT”), was properly excluded from competition because it provided “assistance in drafting” the RFP.

The RFP was issued by the State Department of Education for the Interagency Commission (“IAC”) on School Construction for the 2018 School Facilities Assessment.  However, before the RFP came out, MGT had engaged in extensive discussions with the IAC for a period of 8 months, sharing information back and forth.  MGT representatives, including lobbyist(s), discused details of the project (including scheduling and pricing) during multiple meetings, and provided the IAC with similar RFPs from other districts across the country.

On the same date the RFP was issued, the Procurement Officer notified MGT that it was prohibited from submitting a proposal due to its assistance with drafting the specifications.  In this case, the Procurement Officer did not report directly to top executives of the IAC.

In general, § 13-212.1(a) of the State Finance & Procurement Article prohibits an individual (and his or her employer) from submitting a bid or proposal if they provided assistance to the unit in drafting the specifications for the IFB or the RFP.  There are four exemptions to this general rule found in subsection (b), and two were relevant to MGT’s appeal; namely, whether MGT provided merely “descriptive literature,” or whether MGT was among multiple offerors from whom comments were solicited as part of a request for information.

The MSBCA adopted a broad view of the words “assistance in drafting.”  It agreed with the Procurement Officer that the specific nature and extent of the information exchanged between the IAC and MGT over the 8-month period provided MGT with an unfair competitive advantage over other potential offerors.  The MSBCA noted that MGT had early access to information that would allow it to prepare its technical and price proposals before any other offeror.  The MSBCA noted that MGT engaged in pricing and scheduling discussions with members of the IAC who might become members of the evaluation committee.  Therefore, the MSBCA held that MGT was properly excluded from competition.

The MSBCA further held that MGT did not satisfy the exemptions in subsection (b) since its communications with the IAC went far beyond mere “descriptive literature,” and the comments provided by MGT were not solicited from two or more persons as part of the proposal process.

In closing, the MSBCA noted that decisions regarding whether an offeror has provided “assistance in drafting” a solicitation are factual considerations to be made based on the totality of the circumstances, which include:

  1. The nature of a person’s input into the specification or solicitation preparation process;
  2. The frequency and timing of the input;
  3. The nature of the input; and
  4. Whether any exchange of information conferred an unfair competitive advantage on the offeror providing input that other potential offerors would not have had.

All contractors who seek to do business with the State of Maryland should keep these factors in mind when their representatives are communicating with the Procurement Officer prior to the issuance of the solicitation.

For more information contact Scott Livingston: slivingston@rwllaw.com or 301.951.0150

 

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