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Posted on Friday, May 12, 2017

Lessons Learned: Double-Check Proposal Requirements Before Submission

Two recent GAO advisory opinions serve as a warning to bidders to double-check proposal requirements for submitting their proposals.

GSA recently sought proposals under the Human Capital and Training Solutions (HCaTS) small business procurement, for government-wide, multiple-award IDIQ contracts to provide training and development services across the government. The small business procurement was conducted in parallel with an unrestricted procurement for the same services.

Two bidders eliminated from competition from the small business procurement, The Arbinger Company (Arbinger) and The McKinley Group, LLC (McKinley), filed protests at GAO, in which they alleged that GSA and unreasonably rejected their proposals for failing to comply with proposal submission requirements set forth in the solicitation.

The HCaTS solicitation stated that the GSA “intends to strictly enforce all of the proposal submission requirements” and that failure “to comply with these requirements may result in an Offeror’s proposal being rejected as non-conforming to solicitation requirements.” The solicitation cautioned that GSA intended to make award without holding discussions and would not allow offerors to resubmit or revise any documents, but that GSA may ask offerors clarifying questions.

Arbinger’s bid included the wrong versions of two RFP attachments related to scoring, instead using attachments from the unrestricted solicitation. GSA rejected Arbinger’s proposal for submitting these wrong attachments. Arbinger argued that GSA should have allowed Arbinger to correct this error through a clarification, because the attachments for the small business and unrestricted solicitations were almost identical.

GAO determined that the attachments Arbinger submitted were different than those were required, and therefore it was appropriate for GSA to reject the proposal as non-conforming because the solicitation expressly stated that attachments related to scoring could not be altered or resubmitted. Arbinger could not have corrected this error through clarifications, because clarifications cannot be used to cure deficiencies in a proposal. Thus, GAO concluded that GSA reasonably eliminated Arbinger from competition.

McKinley’s proposal was also rejected by GSA for failing to follow solicitation instructions. The solicitation required bidders to submit relevant experience projects, and instructed bidders that if their relevant experience project comprised a collection of task orders, that experience project was to be labeled as relevant experience project number 6. McKinley chose to identify a collection of task orders as one of its relevant experience projects, but labeled it as relevant experience project number 5.

GSA relied on the same arguments that it made in the Arbinger protest – that it had eliminated McKinley’s proposal because it did not follow instructions, and the solicitation had advised offerors that the government intended to strictly enforce all solicitation requirements. However, in this instance, GAO determined that GSA had acted unreasonably in eliminating McKinley, because there was no proposal deficiency or material omission – all of the information that was required had been submitted on the correct form, it was simply numbered incorrectly. GAO stated, “This is not a case where McKinley submitted the wrong form and needed to revise or resubmit it, or where information required to evaluate the proposal was missing or could not be located. In other words, there was no proposal deficiency or material omission in this case.”

Although GAO reached different conclusions in each of these protests based on the nature of the specific errors of the protestors, both cases should serve as a reminder to bidders to always double-check that their proposals meet even the most basic solicitation requirements – such as using the most up-to-date and correct forms – before submission. This is especially important where the agency has indicated that it will not permit offerors to revise or resubmit any documents, and where multiple versions of forms may have been released through amendments to the original solicitation.

GAO’s decisions in these protests can be found at The McKinley Group, LLC, B-413156.22 and The Arbinger Company, B-413156.21.

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, legal updates, events, and more. This post was published in the May 2016 Monthly Insights newsletter.  For more information on how to sign up for Monthly Insights, please click here.

Stephanie Wilson is a Partner and Co-Director of Government Contracts at Berenzweig Leonard, LLP, and can be reached at swilson@berenzweiglaw.com.