GSB Vol. 10, No. 5 - #1. Government Contracting in Georgia.

AuthorBy J. Matthew Maguire Jr.

Georgia Bar Journal

Volume 10.

GSB Vol. 10, No. 5 - #1.

Government Contracting in Georgia

Georgia State Bar JournalVol. 10, No. 5, February 2005"Government Contracting in Georgia"By J. Matthew Maguire Jr.With very limited exceptions, federal, state and local laws require government entities to award contracts through competitive processes, such as Requests for Quotation and Requests for Proposals. In theory, these procedures ensure that the purchaser, i.e., the government agency, obtains the best value for the taxpayers. money.1 In practice, these procedures work with varying degrees of success. Unfortunately, in many instances the best offeror is passed over due to the agency's arbitrariness or bias or the offeror's simple confusion as to the agency's specifications. This article is written for general practitioners who represent firms that provide goods or services to government agencies in Georgia. The first section provides a general overview of typical procurement processes and some tips for a smooth procurement process. The second section of the article discusses administrative and judicial remedies for the unsuccessful offeror contemplating a challenge to an adverse agency decision. The article is not designed to be a .how to. litigation manual, rather, it provides a general overview of what to expect once the decision is made to challenge an agency's decision regarding a government contract.


General Overview of Procurement Process

The procurement process typically begins with a Request for Quotation (RFQ) or a Request for Proposal (RFP). The government agency will typically use an RFQ to obtain the most competitive price for commodities like a fleet of previously specified automobiles. The agency will use an RFP, by contrast, for service contracts, such as advertising, information technology consulting and engineering because those contracts contain more variables than just price and delivery date. Before bids or proposals are due, the agency will typically allow offerors to ask questions either in a formal question and answer session or in writing. If the latter is used, the agency will furnish its written response to all questions to all offerors. Any other contact with the agency by the offeror is usually forbidden. RFQ bids are usually opened publicly, the lowest responsive bidder is announced, and the contract is awarded on that basis. Once the bid is accepted, a court will not relieve a bidder who, through ignorance, submits a bid that is too low.2 Because RFPs usually contain more variables and require more subjective analysis, agencies typically designate a team of staff members and consultants to evaluate each proposal against the selection criteria set forth in the RFP. Most agencies require the evaluation team to complete evaluation forms for each proposal. The evaluation team ranks the offerors in order of preference and then the agency notifies all offerors of its intent to enter into negotiations with the top-ranked offeror. The negotiation phase is the final opportunity for the agency and the top-ranked offeror to resolve any contingencies and formalize the contract. The agency should not substantially modify the terms of the RFP during the negotiation phase without allowing all offerors the opportunity to propose modified terms. If the agency and top-ranked offeror reach a meeting of the minds, a contract is executed. If they do not reach a meeting of the minds, the agency will enter into negotiations with the secondranked offeror, and, if necessary, all other qualified offerors until a contract is finalized.

Tips for a Successful Procurement

1. Read and Understand theRFP and Applicable Rules

The importance of reading and understanding the RFP and procurement rules cannot be overemphasized. This would seem to be an obvious point, but countless offers are rejected because the offeror failed to adhere to the requested format or missed the submission deadline in some cases by a matter of minutes.3 While most RFPs typically reference the issuing agency's rules, other state or federal rules might also apply. For example, if you are bidding on a contract for "public works construction"4 in Georgia, and the value of the contract exceeds $100,000, the competitive award process will be governed by the Georgia Local Government Public Works Law, O.C.G.A. 36- 91-1, et seq. If the state or local agency accepts federal funding, federal procurement regulations will apply, but you will also be required to satisfy state or local rules that do not conflict with the federal regulations.5 In the remaining cases, you should be able to find the procurement rules at the agency's Web site. Failure to understand the applicable rules could lead to missed opportunities. For example, if a provision in the RFP unfairly hampers your client's ability to compete or gives another firm an unfair competitive advantage, most agencies will require that a protest of the RFP be filed on a very short time frame.6 If you wait until the bid is rejected and then protest the award to the winning bidder, you will have waived your objections to the terms of the RFP itself.7

2. Understand Rules Pertaining to Lobbyists

If your client decides to use a lobbyist to help secure a government contract, remember that he is acting as your client's agent. A lobbyist cannot do anything with respect to the procurement that his client could not otherwise do. Also be aware that a vendor who employs a lobbyist to lobby a Georgia state agency 'shall cause such lobbyist to register with the State Ethics Commission and to file the [appropriate] disclosures..8 Those disclosures include the specific contract for which the lobbyist has been hired and the compensation to be paid to the lobbyist.9 Please keep in mind that some agencies prohibit payments to lobbyists from funds received from the agency.10

3. Use the Open Records Act Wisely

Many bidders and attorneys fail to take full advantage of the Georgia Open Records Act to obtain competitors' proposals and the agency's evaluations of all proposals. 11 In Georgia, those documents become public records upon the award of the contract except to the extent they contain protected trade secrets.12 Have your records request drafted and ready to file before the agency announces the award so that you can file the request on the day of the announcement if your client does not win the contract. You will likely need these documents to prepare a protest, which will be due within days of the announcement.13 Request the complete procurement file, including, without limitation, all offerors' questions and agency responses, evaluation factors, agency evaluation forms, the winner's proposal, all correspondence between the winner and the agency, and all minutes, notes, and audio or videotapes from meetings between the winner and the agency. You will be surprised at what you find. In several unreported cases, unsuccessful offerors have learned through open records requests that their proposals received the highest score by the agency evaluation team. In another unreported case, an open records request uncovered evidence suggesting that agency officials shared confidential pricing information from sealed proposals with another bidder in violation of the applicable procurement rules.

4. Disadvantaged Business Enterprise Requirements

Most government contracts have a Disadvantaged Business Enterprise (DBE) component to them.14 DBE programs seek to increase contracting opportunities for firms that are at least 51 percent owned by women or members of certain ethnic groups presumed to be "socially and economically disadvantaged" .15 Certified DBEs and non-DBE firms that satisfy DBE goals (by subcontracting or partnering with DBE firms) typically receive additional points in the proposal scoring process or additional compensation from the agency.16 A typical program sets a DBE participation goal for a particular contract, expressed as a percentage of the total contract amount, to be performed by qualified DBE firms.17 Non-DBEs that are unable to satisfy the DBE goal must demonstrate "good faith efforts" to do so by, for...

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