Agencies commonly ask offerors to designate a point of contact for communications about the proposal. But what happens if the person the offeror identifies is unavailable when the agency reaches out?
A recent GAO bid protest decision is a cautionary tale and suggests some best practices for offerors.
The GAO’s decision in Ortho-Clinical Diagnostics, Inc., B-418946 (Oct. 23, 2020) involved a Navy RFQ seeking two clinical chemistry/immunoassay laboratory analyzer systems and one laboratory automation system, to provide laboratory testing of patient specimens at the Naval hospital in Jacksonville, Florida.
In December 2019, Ortho-Clinical Diagnostics, Inc. submitted a quotation. It its quotation, Ortho-Clinical identified its Contract Manager as the company’s sole point of contact for any communications regarding the quotation.
The Navy received initial quotations from five companies, including Ortho-Clinical. After reviewing initial quotations, the Navy found that none of them, including Ortho-Clinical’s, were technically acceptable. The Navy elected to open discussions with all five companies to allow them to address the shortcomings in their initial quotations.
In May 2020, the Navy emailed a discussions letter to Ortho-Clinical’s Contract Manager. The letter identified the deficiencies in Ortho-Clinical’s initial quotation and informed Ortho-Clinical that it could submit a revised quotation by May 15.
As it happened, the Contract Manager was on an extended leave, which had begun April 9 and was expected to continue through late June. The Contract Manager’s email apparently was supposed to send an automatic “out of office” message, but Ortho-Clinical could not show that such a message had been sent in response to the discussions letter.
Ortho-Clinical did not respond by the May 15 deadline and was eliminated from the competition. When Ortho-Clinical learned that the order had been awarded to a competitor, it filed a GAO bid protest. Ortho-Clinical argued, in part, that the Navy had conducted unfair discussions and that the Navy should have contacted Ortho-Clinical again when the Contract Manager did not confirm receipt of the discussions letter.
The GAO wrote:
Because there is nothing in the record showing that the agency received an out-of-office notification or any other indication that the agency should have known that the email containing the discussions letter failed to reach Ortho, there was no reason for the agency to confirm that Ortho received the email or to further contact additional Ortho employees.
The GAO suggested that Ortho-Clinical had dropped the ball by failing to update the Navy when the Contract Manager went on leave:
Ortho’s protest states that it was aware that its contract manager would be on leave starting April 9 through at least late June 2020. Ortho submitted its quotation in December 2019. The agency sent the discussions letter in May 2020. Despite knowing that its point of contact for this quotation would be on leave for approximately three months beginning in early April, Ortho did not inform the agency of this fact or provide an alternative point of contact.
In sum, the GAO wrote, “the agency was not the cause of Ortho’s failure to receive or respond to the discussions letter,” and therefore, “we cannot conclude that the agency violated any procurement law or regulation by finding that Ortho had removed itself from the competition.” The GAO denied the protest.
Things undoubtedly would have turned out much better for Ortho-Clinical if the Navy had received the automatic email response. In that case, the Navy would have simply forwarded the discussions letter to the alternate points of contact.
But the Ortho-Clinical case demonstrates the risk an offeror may take by relying solely on an automatic email response. Where, as here, a person is designated as a point of contact for proposal communications, an offeror would be very wise to have that person’s email account actively monitored by another employee if the person is absent. And if the person is on an extended leave, the offeror also would be wise–as GAO suggested–to proactively notify the agency and provide a new point of contact.
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