Recently, GAO sustained a bid protest, finding that the awardee did not meet the material requirements of the solicitation. The GAO held that the requirements of the solicitation included an agency’s answer during the question and answer (Q&A) period.
In ATP Gov, LLC, the United States Air Force (the Agency) issued a solicitation for portable satellite terminals, related equipment, and associated services.
Two of the solicitation’s requirements are relevant here. First, the terminals were required to “provide auto-tracking/auto-acquire functionality” that offerors would verify through demonstration. Second, the terminal assembly was required to be Wideband Global Satellite Communications (WGS) certified. The certification would be verified upon inspection.
During the Q&A period, one offeror sought clarification on the timeline for the WGS certification. The offeror asked, “[d]oes the terminal need to [be] WGS certified at time of proposal submission?” The Agency responded, “Yes.”
The awardee proposed a base terminal that was WGS certified at the time of proposal submissions. However, the terminal would need modifications to provide the required auto-tracking capability. The Agency found that the awardee’s proposal met the solicitation’s requirements at the time of submission.
ATP Gov, LLC (the protester) filed a protest, claiming that the awardee’s proposed terminal did not meet the material requirements of the solicitation because modifications to the terminal would require WGS re-certification.
Understanding the protester’s argument requires a bit of a breakdown of the facts. But–stay with me here. Consider this your brain exercise for the day!
Protester’s Argument
- If the awardee’s terminal is not modified, then it will not be able to later meet the solicitation’s requirement for auto-tracking capabilities.
- If the terminal is modified, then WGS re-certification is required.
- If WGS re-certification is required, then the awardee’s proposed terminal was not WGS certified at the time of proposal submission, as required by the Q&A.
The main point of contention in this protest was the relationship between the material requirements in the solicitation and the Agency’s answer during the Q&A period.
Requirements
- Solicitation required auto-tracking capability verified through demonstration
- Solicitation required WGS certification verified upon inspection
- Agency’s answer during Q&A required WGS certification at the time of proposal submission
The Agency argued that the solicitation was silent on when the terminal was required to be WGS certified. Rather, the solicitation only noted that the WGS certification would be verified by inspection. The Q&A, the Agency stated, did not change the solicitation’s underlying requirement that the certification was only required at the time of inspection. If the solicitation only required verification by inspection, then the awardee’s proposed base terminal was acceptable because it did not have to be WGS certified at the time of submission.
GAO found the Agency’s reading of the solicitation and its requirements unreasonable, stating:
“[t]he agency’s answer formed part of the solicitation and clearly explained to offerors that the solicitation’s requirements that the terminal assembly be WGS certified must be met at the time of proposal submission.”
GAO made it clear that Q&As amount to amendments to the solicitation, and thus form part of the solicitation’s requirements. Further, GAO found that the Q&A was not inconsistent with the solicitation. The terminal was required to be certified both at the time of submission AND would be verified through inspection.
Ultimately, GAO concluded that the Agency made an award to an offeror that was ineligible for award because the awardee’s proposed modified terminal assembly was not certified at the time of proposal submission. Therefore, it did not meet the material requirements of the solicitation.
We’ve made it through the facts and reached a simpler – but informative – lesson: An agency’s response during the Q&A period could include crucial information for meeting material requirements of a solicitation – even if it wasn’t included in the original solicitation document.
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