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Posted on Tuesday, September 18, 2018

Offerors Must Protest Allegedly Unattainable Contract Requirements Prior to Proposal Deadline

Contractors are often concerned that filing a pre-award protest might hurt their relationship with the government customer and, as a result, sometimes take a risk in responding to what they think is an unclear or unattainable solicitation requirement. A recent GAO decision serves as a reminder that contractors who fail to raise such issues with a solicitation prior to the closing time for receipt of proposals lose the ability to raise those issues after contract award.  

In DataSavers of Jacksonville, Inc., the Department of Homeland Security issued a request for quotations (RFQ) that contemplated the issuance of a blanket purchase agreement (BPA) for off-site document storage and records management services. The statement of work (SOW) included the following physical record retrieval requirement: 

The Contractor shall accept and respond to requests for emergency support within 4 hours of the emergency request by Authorize Agency Continuity of Operations personnel or the legal custodian of Essential Records. This requirement is related only to emergency access to Essential Records . . . , during a government reconstitution or recovery event or exercise . . . .  

DataSavers believed that this SOW requirement was unattainable, given the distances between some DHS field offices and the storage facilities approved for handling such records.  Rather than raising this issue with the agency before offers were due, DataSavers decided “to answer such requirements to the best of [its] ability” and “to propose a solution to an impossible directive.” DataSavers proposed to “print and hand-deliver an exact copy of a record to any DHS field office (or deliver by ‘Scan on Demand’) within 4 hours” and then provide the physical record within 24 hours. 

DHS determined that DataSavers failed to adequately address this SOW requirement, noting in particular that some records could not be copied or scanned due to their formats or security considerations. DHS concluded that DataSavers’ approach “shows a fundamental misunderstanding of the Agency’s requirements and presents an unacceptable risk[,] making the technical approach unacceptable.” 

DataSavers filed a protest at GAO, alleging that DHS’s evaluation of its technical approach was unreasonable, because the SOW requirement was “unattainable and unreasonable.”  

Under GAO’s timeliness rules, a bid protest based on an alleged solicitation defects must be filed prior to the closing time for receipt of quotations. Accordingly, GAO dismissed DataSavers’ protest as untimely, concluding that it was a challenge to “an alleged defect in the solicitation that was admittedly apparent prior to the time for the submission of quotations.”  

It is unclear why DataSavers chose to, in its words, “propose a solution to an impossible directive,” rather than raise the issue with the agency prior to the proposal deadline. Both GAO and the U.S. Court of Federal Claims will dismiss protests challenging the terms of a solicitation as untimely if they are raised after contract award.  

Not only did DataSavers have the ability to protest to either of these venues prior to the proposal deadline, but it also could have chosen to file an agency-level protest. Protests submitted directly to the agency are not public and give the agency the ability to fix an issue early on and avoid potential problems down the road. By way of example, if, as DataSavers contends, the SOW requirement truly was “unattainable,” the agency would likely prefer to know it before evaluating proposals and awarding a contract, rather than to discover this in the midst of contract performance. Pre-award agency-level protests raising legitimate concerns with the ambiguity or feasibility of contract requirements may be reviewed favorably by an agency, whose goal is fair and open competition.  

DataSavers of Jacksonville, Inc., B-415113.3 (August 24, 2018). 

 

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, events, and more. This post was published in the September 2018 Monthly Insights newsletter. To sign up for Monthly Insights, please click here. 

Stephanie Wilson is a Partner at Berenzweig Leonard. Stephanie and Terry O’Connor  lead the firm’s Government Contracts practice. Stephanie can be reached at swilson@berenzweiglaw.com.