United States: May 2017 Protest Roundup

Last Updated: June 21 2017
Article by Cynthia O. Akatugba and Susan Borschel

In May, the Government Accountability Office ("GAO") and the U.S. Court of Federal Claims ("COFC") published a number of decisions, many of which can be categorized as "back-to-basics" decisions. We address below decisions on the following issues of interest: (1) complying with solicitation requirements; and (2) the importance of the performance work statements in resolving protest.

Proposal Submission Requirements Are Requirements, not Recommendation.

Western Star and Tele-Consultants, Inc. are variations on a well-worn GAO theme: late is late. In Western Star, the Request for Proposals ("RFP"), as amended, required that proposals be submitted no later than 4:00 PM EST on January 30, 2017 to the contracting officer's email address. The RFP included the standard reference to Federal Acquisition Regulation ("FAR") Clause 52.212-1(f)(2) providing that late proposals would not be considered. FAR 52.212-1(f)(2)(i)(A) allows a late proposal to be accepted, but only "[i]f it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers." Western Star's proposal, emailed to the Government on January 30, 2017, did not arrive in the contracting officer's in-box by the time required for proposal submission. Although the Government and Western Star disagreed as to which party's server or internet provider caused the delay, there was no disagreement that Western Star did not email the proposal one working day prior to January 30, 2017, and, as a result, its proposal was properly deemed late.

In Tele-Consultants, Inc., the RFP required that proposals be submitted electronically via the SeaPort-e portal by 2:00 PM Eastern Time on November 8, 2016. The RFP referred offerors to instructions in the SeaPort-e contract for how to properly submit proposals on the portal. Among the portal instructions was the need to engage the "Submit Signed Proposal" radio button. Tele-Consultants claimed that it timely uploaded its proposal to the portal, but acknowledged that it did not engage this radio button on the system. As a result, its proposal was not acceptable.

In both cases, the GAO discussed the need for strict compliance with the submission requirements – the proposal must go to the correct place at the correct time and in the correct manner.

In Battelle Memorial Institute, the solicitation required the offeror to submit specific present and past performance questionnaires ("PPPQs") and stated that the offeror was responsible for making sure all of the referenced questionnaires were submitted by the parties completing them. Here, Battelle was included in the competitive range and was sent an evaluation notice explaining that two of its PPPQs had not yet been received. This issue was mentioned again during the oral discussions but, apparently, was not resolved. After it did not receive award, Battelle filed a protest arguing that, whether or not its PPPQs were compliant, the Government had a duty to seek out past performance evaluations and could have found publicly available information supporting Battelle's noteworthy past performance. The GAO disagreed, noting that the RFP required that the questionnaires be completed and submitted and that "the record unambiguously establishes that the agency called this matter to Battelle's attention during discussions; that Battelle expressly acknowledged the absence of the PPPQs; and that Battelle failed to subsequently ensure that the PPPQs were submitted."

Performance Work Statements Are Important.

It is no surprise that award decisions turn on how offerors interpret the Solicitation's performance work statement. So do bid protests.

AdvanceMed Corporation, B-414373, May 25, 2017

In this case, AdvanceMed Corporation successfully challenged CMS' cost realism evaluation of the awardee's proposal. AdvanceMed argued that, while the awardee's proposed cost was lower, the price did not correspond to its technical proposal and was, therefore, unrealistic. In particular, AdvanceMed alleged that the awardee discussed in detail how it would accomplish the tasks outlined in the statement of work but failed to propose sufficient hours for these tasks or "double counted" hours among several tasks.

The solicitation required offerors to submit, in addition to a technical proposal, a business proposal providing details and the rationale for all assumptions and rationale underlying their proposed hours and costs. Business proposals would be evaluated for the reasonableness and realism of the offerors' proposed prices and the risk to the government of failure of performance. After evaluating the proposals, the agency concluded that, while AdvanceMed had a slightly better technical proposal, that advantage was not worth a 23.96% premium.

AdvanceMed challenged this conclusion, arguing that the awardee's stated number of hours for one task was misleading and that the same hours were simultaneously applied to other tasks. In addition, AdvanceMed noted that the awardee failed to propose any hours for a task contemplated in its technical proposal.

The GAO agreed. Specifically, the GAO concluded that the agency's cost realism analysis was flawed because it focused on solicitation line items and not the offeror's proposed approach for each task in the statement of work. On this basis, GAO sustained the protest.

Tetra Tech, Inc. v. United States, No. 16-159C (Fed. Cl. May 5, 2017)

Protester Tetra Tech and Eastern Research Group ("Eastern Research") held separate contracts with the Environmental Protection Agency ("EPA") to provide technical solutions to communities regarding waterway protection. In 2016, the EPA issued a new solicitation for Tetra Tech's prime contract and awarded the follow-on contract to Eastern Research. In response, Tetra Tech filed a protest in the Court of Federal Claims in June 2016, alleging that the agency's technical evaluation was flawed. In a continuing trend, the Government agreed to a voluntary stay of the contract pending the protest rather than litigating a temporary restraining order.

While awaiting the court's decision on Tetra Tech's protest, the EPA issued a work assignment to Eastern Research under Eastern Research's prime contract to provide storm water and waste water technical assistance. Tetra Tech noted this assignment and alleged that the new work assignment to Eastern Research was "suspiciously" similar to the scope of work and the tasks that would naturally emanate from Tetra Tech's incumbent contract and the subsequent follow-on contract, which was stayed under the first protest. Tetra Tech alleged that the EPA's decision to issue the work assignment under Eastern Research's prime contract violated CICA's requirements for full and open competition and the voluntary stay in the first bid protest.

The court denied the protest for a number of reasons. First, the court examined whether the new work assignment to Eastern Research "materially departed" from the scope of work in Eastern Research's prime contract and concluded that, although it was a close call, the new work assignment was well within the activities contemplated by Eastern Research's prime contract. Second, the court explained that for the allegations related to the voluntary stay of the EPA's new award, those arguments should have been brought in the first protest, not in a new protest. Finally, the court concluded that the agency issued the new work assignment under Eastern Research's prime contract, and did not intend to use funds from the other contract for its performance.

Takeaway: Documents matter. The solicitation, statement of work, and eventual contract bind the Government and the offeror. As a result, the GAO and Court of Federal Claims will be skeptical of deviations from those documents and all submission requirements must be strictly met. Although it is often the case that proposals are not completed until the last minute, every effort should be made to try to submit proposals at least one business day prior to the deadline so as to take advantage of the delivery failure "second chance" provided by FAR 52.212-1(f)(2)(i)(A). In addition, a team that is not on the capture or proposal teams should review the requirements in the RFP, prepare a table of the submission requirements, and indicate the manner in which each of the submission requirements is being met. Finally, if an Agency provides feedback that something is missing from a proposal and provides an opportunity to deliver the missing items, there is no excuse for not taking advantage of this opportunity – even if one believes that the items were already delivered or are not necessary.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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Cynthia O. Akatugba
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