Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Lost proposal information
General Counsel P.C. Highlight: An Agency’s negligent loss of proposal information does not entitle the offeror to any relief from the loss except where the loss is shown to be not an isolated act of negligence, but rather arises out of a systematic failure in the agency’s procedures that typically results in multiple or repetitive instances of lost information.
Islands Mechanical Contractor, Inc. (IMC) protests the Department of the Army’s (Army) rejection of its proposal and award of multiple award task order contracts to other offeror’s, under a request for proposals (RFP), for design/build and construction work.
The RFP contemplated the award of multiple indefinite-delivery/indefinite-quantity (ID/IQ) contracts, with a base period of three years with two option years, for design/build of construction-type work. The RFP required offeror’s to submit a bid guarantee for 20% of the bid price or $3 million, whichever was less. The RFP provided that the government would review the bid guarantee for legal sufficiency and that a bid guarantee found legally insufficient may render the offer ineligible for award. The solicitation specifically cautioned that facsimile and photocopied bid guarantees were not acceptable.
IMC’s proposal was evaluated as overall satisfactory. However, the agency found that IMC’s bid bond was legally insufficient because it was not an original and lacked an original surety agent’s signature. IMC’s proposal was excluded from further consideration.
IMC protested the agency’s rejection of its proposal, asserting that it had submitted an original, duly executed bid bond in addition to the copy. IMC speculates that the contracting officer mistakenly furnished the attorney reviewing IMC’s bid bond with the copy instead of the original. IMC submitted affidavits in support of its position. The contracting officer and specialist have submitted sworn statements that IMC submitted only a photocopy and not an original.
Even if we assume that the Agency did lose the original bid bond, which the Agency denies, the protest may still not be entitled to any relief. GAO has previously held that negligent loss of proposal information does not entitle the offeror to relief except where the loss is shown to be not an isolated act of negligence, but rather arises out of a systematic failure in the agency’s procedures that typically results in multiple or repetitive instances of lost information. GAO finds that this limited exception does not apply here because there is no evidence–and IMC has not suggested–that the agency has, for example, lost the proposal information submitted by other offerors, or previously lost proposal information. The protest is denied.