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Posted on Thursday, October 18, 2018

Vendors Must Closely Monitor Solicitations on FedBizOpps

Because government contractors are charged with knowing what an agency has published on FedBizOpps (www.fbo.gov), they need to closely monitor relevant procurement updates on that site. A recent GAO decision gave some helpful examples of contractor “ignorance being no excuse.”

The U.S. Department of Agriculture issued a solicitation for a BPA for foreclosure legal services in Florida. After offers had been submitted, the agency cancelled the solicitation, telling vendors including Boswell and Dunlap LLP that the solicitation was canceled “as further development of requirements and direction may be required to yield a successful outcome for the Government’s needs. Please continue to track the Federal Business Opportunity (FBO) at www.fbo.gov for any future opportunities.”

Several months later, the agency issued a revised solicitation that was posted to FedBizOpps with the same title as the cancelled solicitation. Ten offerors responded. Boswell did not see the revised solicitation and, therefore, did not submit a quote.

After learning that offers had closed, Boswell protested to GAO, arguing that the agency had denied Boswell the opportunity to compete for the revised solicitation because Boswell had never been given a copy of the revised solicitation and had been unable to locate the solicitation on the FedBizOpps website.

Boswell believed it had done all that it could to stay in the loop. It had followed the directions in the agency’s cancellation notice, had signed up for automatic updates on the FedBizOpps website, and had regularly searched the website using key terms such as: legal services; foreclosure; Florida; Rural Development; and Rural Development/Florida State Office. Despite all these efforts, it never found or viewed the FedBizOpps notice.

GAO dismissed the protest, relying in part on the fact that vendors are presumed to know what is published in FedBizOpps, whether they actually know it or not. “Protesters are charged with constructive notice of the contents of procurement actions published on the FedBizOpps…without regard to the party’s actual knowledge of the matter at issue.”

GAO gave some helpful examples of situations it has used this rule: where the protester was the incumbent contractor who asked agency employees whether a new solicitation had been issued; where the agency provided actual notice to another offeror but not the incumbent; where the agency previously provided oral notice to the protester on past actions; where the protester had no internet access, or the protester simply did not find or see the notice posting. As GAO summed it up, whether Boswell had “actual knowledge of the RFQ does not impact our analysis.”

Boswell and Dunlap, LLP, B- 416623, Oct. 10, 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 October 2018 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.