In our line of work, we regularly litigate protests, claims, appeals, etc., against the Government. But often, procuring and contracting issues can be resolved without the need for litigation–via a little-known method we like to call “talking things out with your CO.” There are also some important things to keep in mind regarding communications with your contracting officer during the proposal submission process. This article is the second of three articles aimed at providing helpful tips for communicating with your contracting officer. Part 1, which focused on pre-solicitation and solicitation communications, can be found here. This article will focus on proposal submission communications. And the third will focus on contract performance communications.
Be proactive about communicating with the contracting officer about your proposal once submitted–making sure it is received, complete, and compliant is on you!
Despite some misconception, it is not the procuring agency’s responsibility to unilaterally inform you if your proposal is incomplete, late, or otherwise non-compliant. It is on you! Don’t hesitate to reach out for confirmation of receipt, completeness, or compliance–ever!
Now, you may not always get an answer. But what a consistent collection of GAO cases looking at many divergent scenarios have taught us is that you–as the offeror–must exercise your due diligence in making sure the agency receives your proposal on time, that the proposal is complete, and that the proposal is compliant. Simply saying “I sent it on time” or “it looked compliant on my computer screen” has repeatedly failed to elicit GAO’s compassion.
In one case, JV Derichebourg-BMAR & Assocs., LLC, B-408777 (2013), GAO upheld the agency’s decision to reject a proposal as late where the offeror submitted the proposal via email, but accidentally left off the price proposal as an attachment. And it was after the designated closing time for receipt of proposals that the agency finally received the offeror’s prices.
Indeed, GAO found the protester’s assertion that the agency should have let it know that the attachment was missing to be without merit. GAO said:
[T]he protester bore the burden of ensuring the timely receipt of its proposal, not the agency, and where [protester’s] proposal was received late, it could not be considered except under limited circumstances specifically set forth in the Federal Acquisition Regulation (FAR), none of which apply in this case. To the extent the protester suggests that the lateness of its proposal should be excused because the agency’s procedures for receipt of proposals were deficient, we disagree.
GAO went on to explain that the agency has no duty to unilaterally inform offerors of the receipt, completeness, or accuracy of their proposals. In GAO’s words:
[Protester] has cited no law, regulation, or decision by this office–nor are we aware of any–in support of the proposition that agency personnel have a duty to review e-mailed offers for completeness prior to the proposal closing date and to notify offerors of any missing sections. Ultimately, the primary cause of JVDB’s late proposal submission was the protester’s failure to attach its price proposal when it e-mailed its proposal to the agency, not the agency’s failure to alert the protester to this error on the date proposals were due.
Now, if the offeror had reached out to the contracting officer right away to ask about its proposal submission, it’s possible that the offeror may have discovered the missing attachment in plenty of time to get that part submitted to the agency. But without that proactive step on behalf of the offeror, the world will never know. And this could cost you an entire award, as it did the protester here.
Similarly, the procuring agency is also not required to inform an offeror if its proposal contains errors, such as exceeding the page limit, etc.
In JJ Global Servs., Inc., B-418318 (2020), the offeror submitted a proposal that exceeded the page limit set forth in the solicitation–and there was crucial proposal information on those extra pages that the agency refused to consider in its evaluation. Again, GAO found no sympathy for the protester there, agreeing that the agency’s decision to ignore the information was reasonable. GAO said:
As a general matter, offerors must prepare their proposals within the format limitations set out in an agency’s solicitation, including any applicable page limits . . . the RFP in this case set forth clear, unambiguous page limitations for each of these narrative sections, and provided that the agency would not consider any excess pages. It also clearly provided that deficiencies would be assessed where required information was lacking and such deficiencies would render a proposal ineligible for award. Clearly stated solicitation technical requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is technically unacceptable and may not form the basis for award.
In this case, the protester argued that the agency should simply have allowed it to clarify the missing information–especially because the protester claimed it was present elsewhere in the proposal. But again, GAO said that burden was not on the agency–it was within agency discretion. Specifically, GAO said
it is up to the agency whether or not to seek clarifications or corrections from offerors . . . In those instances where a solicitation has established clear page limitations, we have held that an agency is not obligated to sort through an offeror’s proposal to decide which pages should or should not be counted toward that limitation. By choosing to format its proposal as it did, [the protester] assumed the risk that portions of its proposal would be rejected for noncompliance with the limits.
Again, who is to say how easily this issue could have been fixed had the offeror proactively sought out confirmation that the proposal was received and all information was present. You simply cannot rely on the agency to alert you to these issues. Picking up your phone or sending a follow-up email asking the contracting officer to confirm receipt and that there are no transmission or formatting issues is always worth a shot–especially if you submit your proposal in enough time to make some quick corrections to your submission in time for the deadline if needed.
This brings up another important point, however. It is also crucial to ensure you are available if the agency kindly decides to reach out to you regarding such issues!
Make sure you carefully select your point of contact (POC) for your proposal–and make sure that POC is ready and willing to respond to the government at all times!
In one GAO case, Ortho-Clinical Diagnostics, Inc., B-418946 (2020), the offeror identified a single POC in its proposal. But that POC went on an extended leave during the procurement process. And importantly, no one notified the procuring agency. There was also no backup POC listed on the proposal.
Then, when the agency emailed the offeror’s POC to conduct discussions, it said it did not even receive an out-of-office email. So with no response from the offeror, the agency eliminated the offeror from competition. Thus, when the protester went to GAO challenging this as an “unreasonable agency decision” and arguing there was lack of meaningful discussions–GAO essentially said, that’s on you!
Despite the protester’s argument that the agency should have confirmed receipt–according to GAO, it was not the agency’s fault that the letter was not received and the protester never responded to it. GAO also said that it was on the protester to inform the agency of the unavailability of its listed POC. In GAO’s own words:
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 [the protester], there was no reason for the agency to confirm that [protester] received the email or to further contact additional Ortho employees. Accordingly, the record establishes that 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
So, your best bet is to make sure your listed POC is a carefully selected, responsible and responsive individual–who will not be traveling any time soon. But of course, things happen; so, alternatively, make sure you are talking openly with the contracting officer for anything you have bid on about your contacts, your availability, your back-up contacts, and making sure you are in the loop on all communications. Or it could cost you an award!
Finally, as all of these cases have indicated, it is also helpful to be aware of the different types of communications that can occur during proposal evaluations–so you are ready and available if the agency does reach out to you.
Take advantage of any offered clarifications or discussions during proposal evaluations!
Clarifications, as set forth in FAR 15.306, are “Limited exchanges” between an offeror and the agency. The purpose is to allow clarification of certain aspects of proposals; but there is no opportunity to substantively revise your proposal during clarifications. And again, as we just learned about from GAO, the agency has broad discretion whether to seek clarifications from offerors.
Notably, in a Court of Federal Claims case, the Court did say there is an outer limit to that discretion. In BCPeabody Constr. Servs., Inc., No. 13-378C (Fed. Cl. 2013), the Court found that the factual circumstances of that case left the contracting officer with “no reasonable choice but to clarify the clerical error” in the offeror’s proposal. We won’t go too far into the details of that one, but keep in mind that, at some point, the agency could be seen to act unreasonably by not clarifying proposal errors–but what that point is has not been clearly defined–and thus, that is not something offerors should rely on. Safest bet is to ensure your proposal is received in as complete and compliant shape as possible–and to reach out on your end to the contracting officer to make sure (rather than relying on any agency duty to do so).
In addition to clarifications, the same section of the FAR explains the process of discussions–the more substantive proposal communications. Unlike clarifications, the purpose of discussions is to allow contractors to address problems in their proposals. The agency’s discussions must be tailored to each offeror’s specific proposal, and at a minimum, must address deficiencies, significant weaknesses, and any adverse past performance information to which offeror has not yet been able to respond. And discussions must also be equal–thus, if they are opened with one offeror, they must be opened with all offerors in the competitive range.
The solicitation you bid on will typically tell you whether the agency plans to–or reserves the right to–conduct either of these communications. But if you are unsure, who’ you gonna’ call? Yup, you guessed it: your contracting officer.
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So, the takeaway here is that communications during proposal submissions and evaluation are, obviously, vital to making sure you give your company the best chance for success–but it is also important as a contractor that you know the rules, rights, and obligations of the agency and the offerors under each solicitation, and generally. Again, it is almost always going to be “on you” to make sure your proposal is received, complete, and compliant. So be proactive about talking to your contracting officer for anything you bid or even plan to bid to make sure.
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