Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Friday, November 1, 2013, 5:22pm EST
AmaTerra Environmental Inc., B-408290.2, October 23, 2013
Most basketball fans can probably describe to you the frustration and heartbreak that comes along with seeing your favorite team make a game-winning shot, only for the shot to not count because it came after the final buzzer. Bid protests are not unlike basketball in this sense, as protests filed after a deadline will be waved off as untimely.* Thus, it is important for contractors submitting offers on federal procurements to be aware of the deadlines for filing bid protests.
In AmaTerra Environmental Inc., GAO denied a protest because it was filed after the applicable deadline. The solicitation in this case contemplated the award of ten ID/IQ contracts by the Department of the Air Force. The awards would be made on a lowest-price, technically acceptable basis, considering both technical acceptability and cost/price. As to cost/price, the solicitation included a specific pricing model that required offerors to propose fixed, fully-burdened labor rates for various labor categories, and called for prime/sub rates to be averaged within the same labor category. During the Q&A period, the Air Force stated that it would not use a weighted average to calculate the average labor rates.
The Air Force received 19 proposals, including one from the protester—AmaTerra, who submitted the highest priced proposal. The Air Force made awards to eleven offerors, however AmaTerra’s proposal was rejected because its evaluated price was unreasonably high. After receiving a post-award debriefing, AmaTerra filed a bid protest with GAO challenging the rejection of its proposal.
AmaTerra specifically challenged the agency’s pricing methodology, arguing that the Air Force should have considered the percentage of effort of the prime and sub when averaging labor rates. The Air Force argued that AmaTerra’s argument essentially challenged the terms of the solicitation, which specifically informed offerors as to the type of pricing methodology that would be used. Further, the pricing methodology advocated by AmaTerra in its protest was specifically discussed during the Q&A period, and the offerors were advised that it would not be used by the agency. GAO agreed with the Air Force, and denied the protest.
The reason this protest was denied is because where there is a known issue with the terms of a solicitation, any challenge to those terms must be made prior to the deadline for receipt of proposals (or bid opening). Where the improprieties in a solicitation terms are not known until after this deadline, protests must be filed within ten days of when the basis of the protest is known or should have been known.
If a contractor believes the terms of a solicitation to be improper, it should first communicate these concerns with the contracting officer, such as through the Q&A process. It is possible that the contracting officer may issue a clarification or solicitation amendment addressing the issue. However, if the contractor believes improprieties remain in the solicitation’s terms, it will have to file its protest with GAO prior to the deadline for proposals in order for its protest to be timely.
*The recent return of the NBA may have caused the forcing of this particular metaphor.