Logo Placeholder

Offeror’s Failure to Update Government on Changes to Point of Contact Results in Exclusion from Competition

| Feb 22, 2021 | Government Contracts

Out-of-office email responses can make communications easier but they must be updated and kept current. Reliance on an “Away Message” from an offeror’s point of contact (POC) during an on-going solicitation led to the offeror being eliminated from the competition. In the opinion of the Government Accountability Office (GAO), the agency had the right to do so. Ortho-Clinical Diagnostics, Inc., B-418946 (Oct. 23, 2020). The decision shows that vendors must keep an agency updated on ways to contact a POC, especially when the vendor anticipates the POC being absent for long periods during a pending solicitation.

Ortho-Clinical Diagnostics (Ortho) was one of five vendors responding to a Navy solicitation. When the Navy decided to have discussions with all five vendors, it sent each of them discussion letters via email to each vendor’s POC. The email from the Navy warned vendors that to be considered further for award, they had to respond to the discussions by a stated deadline.

Unfortunately, Ortho’s designated POC for the procurement was on extended leave, and no one at Ortho received the discussions email. When Ortho did not respond to the discussions email, the Navy considered Ortho to have removed itself from the solicitation. Ortho discovered during the Navy’s subsequent debriefing that the Navy had excluded Ortho from the competition because it had never received any response from Ortho to the Navy’s discussions email.

Ortho protested to GAO, arguing that the Navy had denied Ortho meaningful discussions. Ortho argued that the Navy had an obligation to ensure that Ortho had actually received the discussions letter and failed to meet that obligation. Ortho noted that the Navy’s discussions email had stated, “[p]lease acknowledge receipt of this email.” GAO, however, held that the agency’s request for acknowledgement of the email from the vendor did not create an obligation for the Navy to confirm the vendor had received the email.

Ortho also claimed that its designated POC had set up an out-of-office notification providing contact information for two other Ortho employees that should have been automatically sent in response to the Contracting Officer’s email. Ortho argued that the Contracting Officer should have sent the discussions email to one of those two employees.

However, the Navy’s records showed that the agency did not receive the out-of-office email from Ortho’s POC. The Navy provided GAO a “screenshot of a search of the contract specialist’s email inbox for emails received from Ortho; the screenshot did not show an out of office notification from Ortho.” Ortho’s records did not help its case, as it did not produce a copy of the out-of-office email it claims was sent to the Contracting Officer for this procurement.

Vendors can easily protect themselves from the same thing happening to them. Ortho knew that the POC would be on extended leave during the solicitation process, yet never gave the agency a substitute. Ortho should have specifically notified the contracting officer of the new POC, rather than rely on any automatically generated out-of-office emails. This simple act would have kept Ortho from being prematurely eliminated from the competition.

Terry O’Connor is a Partner and Director of Government Contracts at Berenzweig Leonard. 

To sign up for our monthly government contracts newsletters, please email [email protected]