Contradictory Discussions Question Should Have Been Protested Pre-Award

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.

The GAO’s decision in Harrington, Moran, Barksdale, Inc., B-401934.2, B-401934.3 (Sept. 10, 2010) involved a HUD procurement for asset management services.  Harrington originally submitted an offer as separate proposals for the different geographical areas in which the work would be performed.  HUD subsequently issued an amendment stating that proposals for the different geographical areas should be consolidated into a single proposal.

In discussions, HUD issued a letter to Harrington stating in part that Harrington’s revised proposal “should be completed in the same format as your original proposal.”  Harrington interpreted this instruction as telling it to continue submitting separate proposals for the different geographic regions, and submitted its final proposals separately.  Unfortunately, HUD had not intended to request separate proposals, and excluded Harrington from the competition for failing to submit a consolidated proposal.

Harrington filed a protest with the GAO, arguing that its exclusion was unfair.  The GAO dismissed the protest as untimely.

According to the GAO, the agency’s instruction to Harrington constituted a “patent ambiguity” in the solicitation.  Longstanding GAO case law holds that patent ambiguities must be protested prior to the due date for receipt of final proposals, or the protest is untimely.  Because Harrington waited past the due date to protest, it was too late.

For contractors, the best bet, from a business perspective, may be to try to resolve apparent discrepancies in solicitation documents “behind the scenes” with the agency prior to the proposal closing date.  Agencies will often post Q&As or clear up apparent contradictions in a less formal manner.  But if this fails, a contractor must quickly make a choice.  To paraphrase the old wedding line: protest now, or forever hold your peace.

Leave a Reply

Your email address will not be published. Required fields are marked *