GAO: Q&A Qualified As Solicitation Amendment

A contractor’s proposal may be rejected for failing to address a requirement contained in a question-and-answer document, so long as the Q&A contains all of the essential elements of a solicitation amendment.

This was the ruling of the GAO in a recent bid protest decision, Energy Engineering & Consulting Services, LLC, B-407352 (Dec. 21, 2012), in which an offeror’s proposal was rejected as technically unacceptable for failing to address a standard imposed in a Q&A.

The Energy Engineering GAO bid protest involved a General Services Administration solicitation for resource efficiency management support services.  Among the tasks required by the solicitation, the successful contractor was to perform energy audits to identify energy conservation opportunities.  The solicitation stated that award would be made to the lowest-priced, technically acceptable offeror.

After issuing the solicitation, the GSA released a Q&A document.  In the Q&A, the contracting officer stated that 10 percent of the facilities were to be audited using, at a minimum, American Society of Heating Refrigerating and Air-Conditioning Engineers, Inc. Level II standards, and that ASHRAE Level III was preferred.  The information regarding ASHRAE standards was not contained in the initial solicitation, nor was it ever included in a formal solicitation amendment.

Energy Engineering & Consulting Services, LLC submitted a proposal.  In evaluating EECS’s proposal, the GSA found that EECS did not address the ASHRAE standards.  The GSA scored EECS’s proposal as technically unacceptable, stating that EECS had failed to identify the level of the audits it would conduct.

EECS filed a GAO bid protest, arguing that it was improper for the GSA to evaluate EECS’s proposal with respect to the ASHRAE standards.  EECS pointed out that those standards were not identified in the solicitation or any formal amendment, but were merely referenced in the Q&A.

The GAO rejected EECS’s argument.  Referring to a prior bid protest decision, the GAO wrote, “as our Office has held . . .  information disseminated during the course of a procurement that is in writing, signed by the contracting officer, and provided to all vendors, contains all of the essential elements of an amendment–even where not designated as an amendment–and is sufficient to operate as such.”

The GAO continued, “[t]he Q&A here meets all of the essential elements of an amendment.  Thus, in our view, the ASHRAE requirements have been added to this solicitation.”  The GAO denied EECS’s bid protest.

The Energy Engineering GAO bid protest decision is an important reminder that contractors should pay close attention to agency Q&As.  If a Q&A contains new requirements, those requirements may well be considered to be part of the solicitation–even without a formal amendment.

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