Bid protests concerning proposal interpretation present an uphill battle for federal contractors. Both the Government Accountability Office and the Court of Federal Claims take the expansive view that the contractor is responsible for the content of its proposal — and that it is not the agency’s role to play detective or dig through a proposal to piece together responsive information.
For example, a few months ago, we looked a case where the protester’s proposal was rejected for failing to include certain required technical details. The protester, however, argued that the details were included – just not in the section of the proposal specified by the RFP. The GAO rejected the argument, finding that it is unreasonable to expect the agency to hunt for important details.
Today, we’re looking at a similar case, but with an important twist. An RFP from the Department of Homeland Security directed offerors to submit sample past performance projects detailing their technical capabilities in a number of areas. In response, one offeror mistakenly submitted a duplicate project, resulting in a failure to submit a relevant project in each area required by the RFP. The agency assigned a material deficiency to the proposal and it was not selected for the award.
As part of its protest, the contractor argued that at least some of the blame for the duplicate submission lies with the agency’s website. However, absent proof of a technical glitch on the part of the agency, the GAO rejected the argument.
In denying the protest, the GAO included some telling commentary that should serve as a warning for contractors submitting proposals electronically. For example, GAO noted that the agency specifically warned contractors that heavy website traffic close to the due date for proposals could cause server lag time – so contractors should not wait until the last minute the submit. GAO also anecdotally noted that the protestor was the only contractor – out of over 150 offerors – to encounter an alleged website problem that materially affected a proposal.
Contractors should take not only the decision – but also GAO’s additional commentary – seriously:
- Follow the RFP. Whether it’s your first proposal, or your one hundred and first, it always pays to refer back to the RFP. Contractors should not make assumptions about what content to include in the proposal – or where to include it.
- When Submitting a Proposal, there are No Second Chances. Take the time to get it right the first time. This should include having a fresh set of eyes – or even an outside attorney or consultant – review a proposal prior to submission. This double-check is the best method to catch overlooked errors or omissions.
- Set the Alarm a Day Early. Whatever the deadline for submitting proposals, make it a practice to be ready to go a day early (or even earlier, if you can). It’s not always easy, but having your proposal in the can before the deadline will eliminate the kind of uploading or website errors discussed in this post.
By following these rules, you’ll maximize your odds of winning the contract each time you submit a proposal.