An offeror’s bid was rejected because the offeror wasn’t a small business–even though the solicitation didn’t contain a NAICS code or corresponding size standard.
It sounds like a successful bid protest waiting to happen, but GAO didn’t see it that way. Instead, GAO dismissed the protest because the offeror should have protested the defective solicitation terms before it submitted its bid, instead of waiting to see how the competition played out.
In the world of federal contracting, precision matters. In fact, precision is often essential when developing a winning proposal. When it comes to subjective evaluation considerations, however, it can be challenging to articulate relevant evaluation criteria with a high level of precision. Indeed, as one prospective offeror recently discovered, some evaluation terms are good enough for government work, despite being imprecise.
As our regular readers know, a GAO protest challenging an agency’s evaluation decision must be filed within 10 days from the date the protester knew (or should have known) of the protest grounds, or within 10 days from the date the protester receives its debriefing (but only if the debriefing was required and timely requested). 4 C.F.R. § 21.2(a)(2).
But sometimes, an agency might give an offeror a reason to protest before it makes its official award determination. In that case, should the offeror wait to file its protest until the agency completes its evaluation?
In some cases, no—the protest should be filed within 10 days from the date the agency makes its determination known.
Solicitations are intended to provide contractors with sufficient information about an agency’s needs to compete intelligently for government awards. In a recent procurement for special operations forces training facilities, one bidder alleged the solicitation provided so little detail that the solicited site “might just as well be a thrown-together paintball site for teenage birthday parties.”
Clearly in no mood to party, GAO denied the protest, taking the agency at its word that its requirements were minimal.
As many contractors and attorneys can attest, federal acquisitions sometimes seek items that are federally regulated, which can result in some complex compliance issues. A classic example of this interaction is the procurement of aircraft. Not only must bidders comply with the requirements of the solicitation, they must also satisfy the FAA’s airworthiness regulations.
So what happens when the FAA’s regulations and the solicitation requirements appear to be at odds? That was the question presented to GAO in Timberline Helicopters, Inc., B-414507, (June 27, 2017), where inter-agency communications between the procuring agency and the FAA resolved the issue. And according to GAO, the procuring agency wasn’t required to disclose those communications to prospective offerors.
Sometimes, unintentional ambiguities can lead to a few laughs. One website, for instance, reports funny ambiguous newspaper headlines, such as “Kids Make Nutritious Snacks” and “Juvenile Court to Try Shooting Defendant.”
When it comes to bids and proposals, however, ambiguities are no laughing matter. As one contractor discovered in a recent GAO bid protest decision, a procuring agency may reject a contractor’s bid if it contains an ambiguity regarding a material solicitation requirement.