It probably seemed like a good idea at the time. When 4Granite, Inc. submitted a bid in response to a Corps of Engineers IFB, 4Granite included a document not required by the government, titled “Company Information and F.A.R. and D.F.A.R. compliance statements.” In the compliance statement, 4Granite pledged to comply with the clause at FAR 52.212-1 and the clauses at FAR 52.212-3 through 5.
The problem? Those clauses weren’t in the IFB.
Like Pavlov’s famous dogs, government contractors are almost conditioned to offer the government more than the minimum requirements. Think back to your own proposals—how many times have you offered the government a steeper discount, a more qualified person, or a superior technical solution than what was required? It happens all the time–and often, the government seems to expect it.
Going above and beyond the minimum is usually a good thing, but, as the GAO’s decision in D’Andre Insurance Services, LLC, B-405046 (July 21, 2011) demonstrates, it is possible to go too far, and give the agency concerns about your understanding of the technical requirements.
Good news for contractors: the GAO has ruled that an agency evaluation cannot be based on unimportant or meaningless distinctions, in which the agency appears to care more about the form of an offeror’s proposal than its substance. In Engineering Management & Integration, Inc., B-400356.4 (May 21, 2009), the GAO sustained a protest of a Department of Education contract award, holding that the agency improperly elevated form over substance in its evaluation.
For small government subcontractors, here’s some good news from the U.S. Army. In a recent GAO bid protest decision, the Army eliminated a proposal from consideration because the prime contractor appeared to ignore the small business subcontracting requirement—and the GAO denied the prime’s GAO bid protest.
Imagine that only days remain until your proposal is due, and your company receives a discussions letter from the agency. Reading the letter, you’re confused—one of the agency’s instructions seems to directly contradict the solicitation. What do you do?
If you’re like most contractors, the last thing on your mind is running to the GAO with a bid protest. After all, you haven’t even submitted your proposal—the last thing you want to do is upset the agency before it even evaluates your offer. So you take your best guess as to what the agency intends and submit your final proposal revision. If the agency makes award to a competitor, you can protest at that time, right?
Wrong, according to a recent GAO bid protest decision.
The GAO has made it clear that contractors are considered to have “constructive knowledge” of items agencies post on the FedBizOpps website. When agencies post on FedBizOpps, though, they must properly classify the posted information, or a GAO bid protest will be sustained, as was the case in TMI Management Systems, Inc., B-401530 (September 28, 2009).
When a contractor submits its proposal information to an agency, the contractor should be careful to preserve evidence—a fax receipt, “sent” email, or, better yet, a FedEx or certified mail confirmation, showing that the agency received it. Otherwise, as the GAO held in Industrial Construction & Trading Co., B-403849 (Dec. 13, 2010), the contractor is out of luck if the agency says it did not receive the document.