In the competitive federal marketplace, businesses are always looking for ways to make their proposals more competitive. With millions of dollars at stake, it is no surprise that some competitors develop clever approaches to give their proposal a competitive edge.
As one competitor recently discovered, however, there is a point where an offer can get too clever, which may result in proposal elimination. Especially when an agency views the clever approach as violating a solicitation staffing requirement.
It is well understood that offerors must submit proposals that meet the procuring agency’s requirements, including any page limitations set by the solicitation. But what if an offeror’s proposal contains an obvious layout and printing error that inadvertently puts required information outside the established page limits? Does the agency have a duty to seek clarifications or allow corrections?
GAO says no.
Preparing a proposal for a federal procurement is an involved process. On top of the extensive drafting and estimating work, proposals often require supporting documentation like licenses or certifications. But what happens when a proposal and its supporting documentation contradict one another?
As one contractor learned the hard way, this contradiction can have disastrous consequences.
Agencies often find unanticipated, innovative content in offerors’ proposals. And unsurprisingly, those proposals are often the ones selected for award. But a recent GAO decision reminds us that all strengths an agency assigns must be supported by the stated evaluation criteria.
In other words, the solicitation must thoroughly inform offerors of these evaluation criteria, and the agency must equally evaluate offerors under them. An offeror’s proposal should not get extra credit for proposing things that are not anticipated by or logically encompassed in the solicitation.
Strong working relationships between contractors and contracting officers are a significant asset. For example, the Customs and Border Patrol recently relied heavily on its experience working with the incumbent contractor to “infer” proposed technical approaches and award corresponding strengths. Unfortunately, when this award was subsequently protested, GAO did not agree with the Border Patrol’s inferential technique.
As GAO explained, a reviewing agency may not credit a bid with technical strengths that are not present within the proposal.
An agency can’t award an offeror a contract if its proposal doesn’t conform with a material solicitation requirement. So if, for example, the solicitation requires certain types of documentation showing an offeror’s right to use property, but the awardee offers something different, GAO will likely sustain a protest.
Put differently, GAO won’t let an agency relax key solicitation requirements even though the agency might, during evaluation, accept the non-complying proposal.
By now, our frequent readers are familiar with GAO’s mantra that it is an offeror’s responsibility to submit a well-written proposal that complies with the solicitation’s requirements and risks being found unacceptable if it fails to do so.
That rule serves its purpose: it helps maintain an organized bidding process, under which the agency can evaluate proposals on an even footing. But it can also lead to harsh results, like it did in a recent protest challenging a proposal’s unacceptability due to its non-compliant table of contents.
Let’s take a look.