Under the GAO’s bid protest rules, an offeror is not presumed to have knowledge of information published on the Army’s Single Face to Industry (ASFI) website.
In a recent bid protest decision, the GAO held that an offeror did not have “constructive knowledge” of an amendment posted on the ASFI because, unlike FedBizOpps, the ASFI has not been designated as a government-wide point of entry for the publication of solicitations.
The GAO’s decision in Latvian Connection, LLC, B-411489 (Aug. 11, 2015) involved an Army solicitation seeking a contractor to provide and install sunshade canopies at various sites in Kuwait. The solicitation was issued on March 20, 2015.
On April 20, Latvian Connection, LLC submitted a proposal. On April 28, the Army issued Amendment 4 to the solicitation. Amendment 4 set forth new dimensions for the sunshades and altered the solicitation in other significant ways. Amendment 4 established a deadline of May 4, at 3:00 p.m. Kuwait time, for the submission of revised proposals.
Although the Army sent Amendment 4 to other offerors, the Army was unaware that Latvian Connection had submitted an initial proposal because Latvian Connection’s proposal had been emailed to the Contracting Officer, who was away on temporary duty. The other offerors also emailed their proposals to the Contracting Specialist, but Latvian Connection used an incorrect email address for the Contracting Specialist.
In addition to sending the proposal to other offerors, the Army posted Amendment 4 on the ASFI on April 28. The Army did not post Amendment 4 on FedBizOpps.
On May 2, Latvian Connection noticed Amendment 4 on the ASFI. On Sunday, May 3, Latvian Connection filed a GAO bid protest. In its protest, Latvian Connection argued that it had not been afforded sufficient time to respond to Amendment 4. The protest was docketed by the GAO at 8:30 a.m. on May 4, which was 3:30 p.m. Kuwait time.
The Army argued, in part, that Latvian Connection had “constructive notice” of Amendment 4 on April 28, when it was posted on the ASFI. The Army contended that the protest should be dismissed as untimely because Latvian Connection had not filed its protest before the proposal deadline–which, ordinarily, is when a protest challenging a solicitation’s terms is due.
The GAO disagreed. It wrote that Latvian Connection could not be presumed to have knowledge of Amendment 4 on April 28:
The ASFI website is not a government-wide point of entry (GPE) designated for the publication of solicitations. Instead, FedBizOpps has been designated as the GPE-that is, the single point where government business opportunities greater than $25,000 (such as the solicitation here), including synopses of proposed contract actions, solicitations, and associated information, can be accessed electronically by the public. While offerors are charged with constructive knowledge of procurement actions published on the GPE, Latvian Connection did not have constructive notice in this instance because ASFI is not the GPE.
The GAO wrote that Latvian Connection had learned of Amendment 4 after the GAO closed on Friday, May 1, and that Latvian Connection’s protest had been docketed as early as possible after Latvian Connection learned of Amendment 4. The GAO held that Latvian Connection’s protest was timely.
Turning to the merits of the protest, the GAO wrote that “the protester had less than 2 business days in which to respond to amendment No. 4, specifically to prepare a revised proposal addressing the new sunshade canopy dimensions.” The GAO concluded, “[u]nder these circumstances, we find that Latvian Connection was not provided sufficient time in which to submit a response to the amendment.” The GAO sustained the protest.
Agencies sometimes post solicitation documents on websites like the ASFI, and there is nothing preventing them from doing so. However, as far as the GAO is concerned, there is only one place online where a contractor will be presumed to have notice of an agency’s solicitation posting: FedBizOpps.