Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Tuesday, May 6, 2014, 6:29pm EST
Watts-Obayashi, Joint Venture; Black Construction Corp., B-409391, et al., April 4, 2014
There’s an old saying about what happens when you assume something, but this is a family article series, so I’ll let you Google that one on your own. As applied to government contracting, though, the key point is that you really don’t want to make any assumptions in proposals submitted in response to a solicitation. It is best practice to ensure that your proposal is written in a clear manner so that the procuring agency knows exactly what is being conveyed.
This was a lesson learned recently by two different offerors. In a recent GAO decision, two separate offerors protested an award by the Department of the Navy, Naval Facilities Engineering Command, for construction services in Guam. The two protesters challenged several aspects of the Navy’s evaluation of their proposals, as well as the source selection decision.
The solicitation required offerors to propose two qualified site safety/health officers, one for each of the work sites required the solicitation. Both protesters only proposed one safety/health officer, and thus their proposals were each assessed a significant weakness by the Navy.
The protesters challenged the Navy’s evaluation, arguing the Navy improperly assessed their proposals with significant weaknesses, essentially arguing that the agency should have assumed they intended to provide two safety/health officers.
The first protester, Watts-Obayashi, admitted that the organizational chart submitted with its proposal only showed one site safety/health officer. However, Watts-Obayashi argued that because it was aware there were two different work sites, it presumably intended to have a safety/health officer at both sites.
The second protester, Black Construction, took a slightly different approach. Its proposal also included an organizational chart showing only one site safety/health officer. However, Black Construction argued that because it agreed in its proposal to implement a Health and Safety Program in accordance with the solicitation requirements, it implicitly agreed to provide two safety/health officers as required.
GAO was not buying either argument, stating that it is a contractor’s responsibility to submit an adequately written proposal. Further, blanket statements of compliance aren’t enough to demonstrate compliance with solicitation requirements. Particularly in situations, such as this, in which specific sections of a proposal (the organizational charts) contradict the blanket statement of compliance. As a result, GAO rejected the protesters’ arguments on the issue, and denied the protest.
Preparing a proposal in response to a solicitation for a federal procurement can be an extensive and complicated process. It is easy for contractors to make simple mistakes that may jeopardize their chances of award. It is essential that contractors make sure their proposals are written in a clear manner so that it is apparent to the government that all solicitation requirements will be met. Don’t require the agency to assume anything.