GAO: Required Proposal Information Cannot Be Provided Post-Award

“We’ll tell you how we’ll manage the contract–after you award it to us.”

That, in essence, appeared to be the position taken by one contractor recently in response to a Department of Defense solicitation.  The contractor in question failed to provide an operations and management plan required by the solicitation, pledging to provide it after award.  Not surprisingly, the agency assigned the contractor an “unacceptable” score.  And equally unsurprising, the GAO denied the contractor’s bid protest.

The GAO’s decision in GAO Protest of All Phase Services, Inc., B-406856 (Aug. 17, 2012), involved a DoD solicitation for demolition and restoration work at Arlington National Cemetery.  The solicitation called for award to be made to the lowest-priced technically acceptable offeror.

Offerors were to present information on four technical capability factors: experience, concept plan, management team, and quality assurance.  The concept plan technical factor, in turn, called for offerors to address 14 separate criteria, including by providing an Operations and Management plan for use in coordinating operations.  The solicitation further stated that the Operations and Management plan should include, at a minimum, a phasing plan, construction site plan, and traffic management plan.

Five offerors, including All Phase Services, Inc., submitted proposals.  After reviewing All Phase’s proposal, the DoD assigned All Phase an “unacceptable” technical score.  The DoD noted that All Phase had failed to provide an Operations and Management plan, and had also failed to submit information responding to other components of the concept plan technical factor.

All Phase filed a GAO bid protest, complaining that the DoD’s evaluation was improper.  All Phase argued that although it had not provided an Operations and Management plan, it had pledged to do so after award, and contended that providing such a plan prior to award would be a “waste of time, effort and money.”

The GAO rejected All Phase’s argument.  It noted that the solicitation “explicitly informed” offerors that they must provide information about all of the solicitation’s requirements.  Simply pledging to provide the information after award “left the agency with no basis to evaluate the company’s plan to complete the project . . ..”  The GAO denied All Phase’s protest.

The GAO’s decision did not fully explain why All Phase had failed to submit an Operations and Management plan or other required information.  Perhaps it was merely lazy proposal writing.  But giving All Phase the benefit of the doubt, and assuming that All Phase reasonably believed that it was wasteful of time, money, and effort to provide an Operations and Management plan prior to award, All Phase still should have known that it could not simply opt out of certain solicitation requirements and hope to win.

Yes, unduly restrictive or unnecessary solicitation requirements can be challenged, but the proper vehicle is a protest submitted prior to the deadline for proposals.  As the All Phase GAO bid protest illustrates, once the proposal is submitted, it must contain all of the information called for in the solicitation–even if the offeror believes some of that information is unnecessary.

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