Don’t Forget the Email Attachment—Protest Denied

A protester recently lost an effort to get an agency to consider a late proposal arguing that it was emailed to the agency on the due date.

Even though the quote would have been less expensive than the awardee’s and this was a lowest-price technically-acceptable procurement, GAO denied the protest finding that the email was a few hours late and did not include the attached quotation.

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Asking Too Much? GAO Grants Only 1% of Protester’s Claimed Costs

While GAO regulations allow GAO to recommend an agency reimburse a protester’s costs if the agency takes corrective action, recouping costs can still be an uphill battle.

In AeroSage, LLC, B-416381.6 (Comp. Gen. Mar. 13, 2019, decided before GAO last week, a protester requested $26,450 in costs, but was only reimbursed its initial filing fee, approximately 1 % of that amount.

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GAO Won’t Let Agencies Sweep Solicitation Non-Compliance Under the Rug

An agency can’t award an offeror a contract if its proposal doesn’t conform with a material solicitation requirement. So if, for example, the solicitation requires certain types of documentation showing an offeror’s right to use property, but the awardee offers something different, GAO will likely sustain a protest.

Put differently, GAO won’t let an agency relax key solicitation requirements even though the agency might, during evaluation, accept the non-complying proposal.

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GAO Denies Protest to LPTA Solicitation Ridden with Cost Uncertainty and Local Zoning Code Conflicts

Federal agencies have long been afforded wide discretion in defining solicitation requirements to meet their contracting needs. But are a solicitation’s requirements acceptable even where they’re likely to conflict with local zoning codes? What about where the solicitation documents conflict with one another on whether certain requirements are considered “requirements” at all? And finally, is an LPTA procurement acceptable where such conflicts have undoubtedly led to price uncertainty among the bidders?

GAO says, “yes” to all of these, so long as the requirements meet the agency’s needs.

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GAO: Agencies Can’t Blindly Rely on Adjectival Ratings to Make Award Decisions

In evaluating proposals, an agency will sometimes use “adjectival ratings” (e.g., Excellent, Good, Acceptable) to describe its assessment of a proposal or portions of a proposal. But, importantly, an agency cannot evade its responsibility to reasonably evaluate proposals–based on the articulated evaluation criteria–by deferring solely to the assigned adjectival ratings.

In other words, if the agency doesn’t perform a true qualitative assessment, but instead relies on mere labels to make its ultimate award decision, GAO will likely slap the agency’s hand.

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Agencies Must Not Delay Evaluating the Merits of Protests, Says GAO

It is decently well established that GAO will recommend protesters be reimbursed for protest related costs when an agency unduly delays in taking prompt corrective action. In a recent GAO decision, however, the Navy argued the question of undue delay should be evaluated from the time the Navy fully understood the extent of its error, not the initiation of the protest.

GAO was not convinced.

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