When submitting proposal information to the government, an offeror needs to know that not all deadlines are the same. For example, the deadline for submitting technical information is typically the deadline for submission of initial offers. However, the deadline for submitting responsibility information can be much later in the solicitation process if the Government asks for more responsibility-type information: any time prior to contract award.
These deadlines and the Government’s inquiry for responsibility-type information were the deciding issue in a protest from an offeror excluded from Phase 1 of the NIH’s CIO-SP3 small business on-ramp competition.
The offeror was excluded for a team member’s failure to provide a password to decrypt a financial statement submitted prior to the Phase 1 proposal due date. The RFP had advised offerors that they would be “subject to a responsibility evaluation” and must “demonstrate that it has the necessary financial capacity, working capital, and other resources to perform the contract without the assistance from any outside source.” Thus, the missing information was responsibility-type information.
What is critical here was that it was not until 14 months after the initial offer deadline had passed and during the evaluation process, the contracting officer sent the offeror a clarification request as to the location of the password. After receiving the missing password, however, the agency eliminated the offeror for failing to provide the responsibility-type information by the initial offer deadline.
The GAO found the agency’s exclusion of the offer to be unreasonable. Although the Government did not have to give the offeror a chance to provide the missing password, it chose to do so. And because it involved responsibility-type information, there was nothing improper about the Government making this request during the evaluation process. Moreover, the Government had the password prior to the time it conducted the phase 1 evaluation and “unreasonably refused to consider the information it had in its possession at the time it made the phase 1 evaluation, i.e., the financial statement and the password to decrypt that document.”
With the difficult task of evaluating hundreds of offers – in this case, 552 offers – the Government rarely has the time to ask offerors to supply missing information. The offeror here got a break from the contracting officer who took the time to inquire after the missing password that involved responsibility-type information. In such large procurements, however, offerors cannot count on an agency asking for missing information. So the final fine-tooth comb review of an offer is critical to getting it even evaluated.
Chags Health Information Technology, LLC, B- 413104.30, B- 413104.37 (April 11, 2019).
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Terry O’Connor is a Partner at Berenzweig Leonard. Terry and Stephanie Wilson lead the firm’s Government Contracts practice. Terry can be reached at toconnor@berenzweiglaw.com.