Two recent decisions from the Government Accountability Office (GAO) show how offerors cannot expect the government to fill in information missing from their proposal. Specifically, offerors cannot expect the government to consider their work as an incumbent on the current contract, nor can they expect the government to call the references they provided in their proposals.
Both decisions involved offerors excluded from a task order competition under the Navy’s SeaPort Next Generation contract. The U.S. Marine Corps (USMC) issued a Request for Proposals (RFP) for information technology support services. The RFP established as the first phase of the competition a “go/no” evaluation factor, Corporate Experience, that offerors had to be evaluated as “acceptable” to be allowed to continue with the solicitation process. The RFP made it clear to offerors that they should assume the government “has no prior knowledge” of their capabilities and experience and would only base the offeror’s evaluation on the information presented in the offeror’s proposal and in the correct section of the proposal.
Work as an incumbent. One offeror, United Support Services, Inc. (USS), was the incumbent contractor. After the USMC excluded USS from the competition on the basis that USS was not acceptable under the Corporate Experience factor, USS protested to GAO arguing that the USMC was required to consider USS’s incumbency in its evaluation.
GAO disagreed, making a distinction important to other incumbents: the distinction between the evaluation of past performance information and the evaluation of technical experience. GAO acknowledged that, in certain cases when evaluating past performance, evaluators cannot ignore information — like incumbency — “of which they are personally aware even if that information is not included in the offeror’s proposal.” However, GAO went on to note that it “has declined to extend this requirement to an agency’s evaluation of technical experience.”
Another important point GAO made involved whether an agency “was required to piece together language in other sections” of an offeror’s proposal to establish compliance with another part of the proposal. In refusing to require an agency to go on a treasure hunt to find missing information, GAO said “where a proposal is organized by sections that correspond to specific paragraphs in the solicitation requirements, an agency may reasonably expect that the proposal will address these requirements in the correspondingly numbered proposal sections.”
GAO denied USS’s protest. United Support Services Inc., B-420724, 2022 CPD ¶ 271, 2022 WL 17361689 (August 5, 2022).
Contacting references. Another offeror also excluded from the competition for not getting an “Acceptable” in the go/no-go factor “Corporate Experience” was Open SAN Consulting, LLC-dba OSC Edge (Open SAN). Like USS, it was excluded for not providing sufficient information to establish that it met this evaluation factor.
Open SAN has a slightly different argument for why the agency should, in effect, fill in the missing information: if the USMC had called the references Open SAN had provided in its proposal, those references would have provided the USMC with information that would have established that the offeror was acceptable under the Corporate Experience factor.
In denying the protest, GAO said that Open SAN “expected the agency to infer that its contract reference met the RFP requirement. We find that the agency was not required to infer information from an inadequately written proposal or to supply information that the protester elected not to provide.” GAO also noted that the RFP said nothing about references being used in establishing Corporate Experience acceptability but did state that the agency “may” contact references in evaluating the past performance factor.
GAO denied Open SAN’s protest. Open SAN Consulting, LLC-dba OSC Edge, B-420724.2, B-420724.3, 2022 WL 17550650 (August 5, 2022).
In conclusion, both decisions serve to emphasize how offerors must strictly follow the rules set out in the RFP and cannot expect an agency in its evaluation to resort to information not in an offeror’s proposal. Careful reading and compliance with every RFP instruction is a must, Berenzweig Leonard can provide valuable assistance to offerors as they navigate the RFP process.
Terrence O’Connor is a Partner and the Director of Government Contracts at Berenzweig Leonard, LLP.