I was grocery shopping the other day, and I had to make the tough choice between the name-brand cereal and the store-brand cereal. I don’t know about you, but with some products, the name brand has a certain flavor that the store brand just can’t replicate. When it comes to government contracts, the same is true–sometimes the government wants a certain brand or supplier and will accept no substitutes.
GAO recently held that, where an agency required quotations including parts from one approved source of supply, and an offer is submitted that proposes an “alternate product,” the agency can reasonably reject the bid–and that a protest of the approved source restriction itself is untimely if it isn’t filed before the proposal deadline.
Patent ambiguities present in the solicitation for an Indefinite Delivery/Indefinite Quantity procurement must be protested prior to the close of proposal submission for the base contract—waiting to protest at the task order level may be too late.
A recent GAO decision shows that when an IDIQ solicitation contains an obvious ambiguity, the rule is “speak now or forever hold your peace.” By the time task order competitions get rolling, the chance to protest will likely be gone.
Imagine that only days remain until your proposal is due, and your company receives a discussions letter from the agency. Reading the letter, you’re confused—one of the agency’s instructions seems to directly contradict the solicitation. What do you do?
If you’re like most contractors, the last thing on your mind is running to the GAO with a bid protest. After all, you haven’t even submitted your proposal—the last thing you want to do is upset the agency before it even evaluates your offer. So you take your best guess as to what the agency intends and submit your final proposal revision. If the agency makes award to a competitor, you can protest at that time, right?
Wrong, according to a recent GAO bid protest decision.