A procuring agency acted unreasonably by leaving a voicemail for a winning bidder requiring confirmation of the bid within 45 minutes of the voicemail.

In a recent GAO bid protest decision, the GAO found that the winning bidder had already confirmed its bid by responding to a Bid Validation request sent by the FedBid electronic reverse auction system.  Under these circumstances, the agency’s second request for a bid validation–with a very short response time–was improper.

The GAO’s decision in AeroSage LLC, B-409627 (July 2, 2014) involved a Bureau of Prisons request for quotations for the next-day delivery of 6,000 gallons of fuel for the FCC Coleman Federal Prison in Coleman, Florida.  The RFQ was issued as a small business set-aside and was posted on the FedBid website as a reverse auction.  The RFQ called for award to the lowest-priced, technically acceptable quotation.

AeroSage LLC submitted a bid using the FedBid system.  AeroSage’s final bid was the lowest-priced.

Shortly after bid closing at 12:00 p.m., the FedBid system sent AeroSage a FedBid Validation request.  The FedBid Validation request asked AeroSage to confirm, by 5:00 p.m., that it would deliver the fuel by 9:00 a.m. the following day.  At 4:36 p.m., AeroSage replied by email to the FedBid Validation request, confirming that AeroSage would timely deliver the fuel.

During the time after the FedBid Validation request was sent, but before the 5:00 p.m. response was due, the BOP Contracting Officer made two telephone calls to AeroSage’s office, the first at 12:44 p.m. and the second at 1:45 p.m.  In the second call, the Contracting Officer directed AeroSage to call back within 45 minutes (by 2:30 p.m.) to confirm the bid and accept the offer.  AeroSage’s staff was out of the office, and AeroSage did not return the call until 6:30 p.m.  By that time, the BOP had awarded the contract to the next-lowest priced offeror.

AeroSage filed a bid protest with the GAO, arguing that the BOP’s actions were unreasonable and improper.  The GAO agreed with AeroSage.

The GAO wrote that “[i]n hosting this reverse auction on its website, FedBid was acting as an agent for the BOP . . ..”   The GAO noted that the FedBid Validation request required an affirmative response, and that “AeroSage provided that commitment . . . within the timeframe established by the FedBid Validation request.”  The GAO continued:

While the process established by the BOP’s agent (FedBid) was underway, the CO imposed a second requirement–in our view, an overlay to the actions underway by FedBid–in which the CO, via voicemail, sought to complete the steps of offer and acceptance (and confirmation of the delivery requirement) during the course of 45 minutes.  Thus, the agency’s actions here are analogous to a decision to accelerate the closing time for final revised proposals on the date those proposals are due.  The additional requirement for telephonic confirmation was not only unstated in the RFQ, but was inconsistent with the instructions set forth in FedBid’s previously-issued Bid Validation request.  AeroSage responded to the validation request as asked and confirmed its commitment to deliver the fuel the next day; the company had no reason to expect that, separate and apart from this inquiry, there was a later-sent voicemail message waiting that imposed a different requirement (a return phone call) with a shorter response time.

The GAO sustained AeroSage’s bid protest.

Government contractors often complain about short government response deadlines.  Often, such short deadlines are perfectly legal.  However, the AeroSage bid protest demonstrates that when the government imposes a deadline–even through an agent like FedBid–an unexpected demand that the contractor respond in a shorter timeframe may be improper.