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No Exceptions to Material Solicitation Requirements in Government Contracting

  • By GCPC GovCon Legal Team
  • April 3, 2013
  • Blog Articles
  • 0 Comments

Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC

Date: Wednesday, April 3, 2013, 8:03am EST

Bahrain Telecommunications Company, B.S.C., B-407682.2, -.3, January 28, 2013
An offeror on a government contract needs to be keenly aware of the material requirements in a solicitation. Failure to address those requirements, or the inclusion of language in a proposal or quotation which takes exceptions to those requirements, could render the entire proposal or quotation unacceptable. In this protest, Bahrain Telecommunications Company argued that the agency improperly evaluated the quotation of the awardee, 2Connect W.L.L., whose quotation took exception to a material requirement of the solicitation. GAO sustained the protest.

The solicitation in this case was issued by a unit of the Defense Information Systems Agency, seeking telecommunications services between Camp Lemonier, Djibouti and Manama, Bahrain. The solicitation required a 1-hour response time for trouble calls, and an 8-hour maximum for repair time. The protester argued that 2Connect’s quotation did not meet these requirements, and rather took exception to them. The protester pointed out that instead of agreeing to the 1-hour response requirement, 2Connect’s quotation stated that it would provide a “prompt response.” Similarly, 2Connect’s quotation provided for “mean-time-to-repair target of eight hours or better,” which the protester argued did not meet the requirement for an 8-hour maximum for repairs.

In its decision, GAO noted that the documentation supporting the agency’s source selection decision barely addressed these ambiguities in 2Connect’s quotation. The record showed that the agency failed to even address the 1-hour response time issue, and appeared to merely accept that 2Connect’s “mean” repair time of eight hours or better meant 2Connect agreed to comply with the 8-hour requirement. The agency doubled down on its error in response to the protest, attempting to argue that a “prompt response” satisfied the specific 1-hour requirement, and a “mean-time-to-repair target of eight hours or better” meant all repairs would be done within 8 hours. GAO was not persuaded by this argument.

Agencies are generally given a great deal of discretion in making their source selection decisions. However, this discretion does not allow an award to an offeror whose proposal takes exception to a material solicitation requirement. A proposal or quotation is rendered unacceptable if it contains ambiguous language calling into question whether the offeror will meet the requirements of the solicitation. Where, as here, an agency cannot explain its conclusion that an awardee actually agreed to meet the solicitation requirements, GAO will find the agency’s evaluation based on that conclusion to be unreasonable.

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