A recent GAO decision considered whether an agency could reject an offeror’s proposal based on the offeror’s failure to follow document preparation instructions that were not explicitly stated in the solicitation.
In Hometown Veterans Medical, LLC B-422751 (Oct. 11, 2024), the Department of Veterans Affairs (“VA”) issued a request for proposals (“RFP”) from service-disabled veteran-owned small businesses for home oxygen services for patients at the VA’s Birmingham Veterans Medical Center. The RFP stated that offerors would be evaluated on experience and price.
During an initial compliance review, four out of eight proposals received were rejected for failing to include copies of representations in their proposals. Hometown Veterans Medical, LLC (“Hometown”) was one of the offerors the VA rejected and then filed this protest.
The RFP contained three provisions relevant to the protest.
First, the RFP included FAR provision 52.209-7. Under this provision, by submitting the proposal, the offeror certifies that information required under FAR 52.209-7 is entered into the Federal Awardee Performance and Integrity Information System (FAPIIS) database through maintaining active registration in the System for Award Management (“SAM”). Hometown completed this representation online through SAM.gov.
Next, the RFP contained FAR provision 52.204-24 for Representations Regarding Certain Telecommunications and Video Surveillance Services or Equipment. This provision contains two representations. The offeror is required to mark “does not” on the representation if it does not use covered telecommunications equipment or services. If “does not” is checked, the offeror does not have to complete the second representation. Hometown checked “does not” for the first representation, and therefore did not complete the second representation.
The VA rejected Hometown’s proposal for failing to submit copies of these representations in its proposal, claiming it was required because the RFP included FAR provision 52.212-1, which states:
All proposals received without requested documentation will not be considered. Failure to comply with ALL criteria as set forth by the solicitation and ALL documentation requested in this basis of award will result in your proposal being rejected and therefore not evaluated. No proposal will be accepted via postal mail.
In its analysis, GAO noted that an offeror’s compliance with instructions related to proposal preparation is not a basis for evaluating proposals independent of the stated criteria. Unless compliance with the instructions is specifically stated in the solicitation as a basis for evaluation, failure to comply cannot be the sole reason for rejection of the offeror’s proposal.
GAO rejected the VA’s argument that the RFP required “ALL documentation” because, read in context, this provision applies to documentation pertaining to the basis of the award, which is evaluation criteria, experience and price. Further, requiring “ALL documentation” is not specific enough to properly inform offerors to include copies of these representations. The VA’s rejection of Hometown’s proposal was not based on the stated evaluation criteria, but rather on the agency’s belief that Hometown failed to follow RFP instructions.
Ultimately, GAO sustained the protest, recommending the VA either amend the RFP to include initial compliance review as a stated criteria for evaluating the proposals, or reevaluate all the proposals and apply the existing evaluation criteria stated in the RFP. Additionally, GAO recommended the VA reimburse Hometown for costs of filing the bid protest, including attorneys’ fees.
While it’s important for a company to always follow the instructions included in the RFP, an agency cannot use this as a sole basis for rejection if not expressly stated in the RFP as a factor for evaluation.
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