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Posted on Wednesday, February 13, 2019

Persistent Contractor Monitoring Of Solicitation Process Is Essential

Although the complexity of the solicitation process makes it easy for “things to fall between the cracks,” the solicitation process has little room for error. Recently, the Government Accountability Office (GAO) concluded that an offeror who had failed to respond to an agency request to extend its proposal was reasonably eliminated from the competition. The fact that the protester had previously filed a protest, had convinced the agency to take corrective action on that protest, and had later expressly responded to the agency’s first request to extend the firm’s proposal could not excuse the firm’s failure to respond to the agency’s second request to extend its proposal. 

In trying to convince GAO that the agency was wrong, the offeror did not have helpful facts on its side. There was no doubt that the firm received the second agency request to extend the proposal. The contracting officer received a “read receipt” indicating the agency’s second request had been received. Nor was there any doubt that failure to extend the proposal was a minor error because a solicitation’s minimum acceptance period was a material solicitation requirement. Also, the firm, in GAO’s words, offered “no reasonable rebuttal to the agency’s evidence that it had, in fact, requested an extension of the protester’s proposal, and had received a read receipt indicating that Emagine had received the request.” GAO gave examples: “For example, the protester does not argue that the e-mail was misaddressed, or offer any forensic analysis, compelling alternative explanation for the generation of the read receipt, or declaration from the Emagine representative who received the e-mail. Rather, the protester merely suggests that the Emagine representative “does not recall receiving this e-mail from the agency.”

GAO noted that, if an offeror did not expressly extend its proposal, on rare occasion, an offeror can extend its proposal by conduct. In one case, an agency sent offerors a letter requesting by May 6th their best and final offers containing an express extension of each offeror’s proposal acceptance period to May 31st. One offeror submitted a timely BAFO that re-affirmed its previously submitted prices but failed to expressly extend its proposal. In that case, GAO concluded that the offeror had extended its proposal by conduct.

Finally, GAO noted that, because the firm had already expressly extended its proposal once before, to September 23rd , it knew or should have known that its proposal was only valid to that date but made no effort to contact the contracting officer until a week later.

GAO denied the firm’s protest, finding that the agency reasonably refused to accept the firm’s belated attempt to extend its proposal. Emagine IT, Inc., B- 416344.3, B- 416344.5, B- 416344.6, Dec. 21, 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 February 2019 Monthly Insights newsletter. To sign up for Monthly Insights, please click here.

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.