Link: GAO Opinion
Agency: Department of the Interior
Disposition: Protest denied.
Protest that an agency’s inclusion of data rights requirements in the solicitation’s evaluation scheme precluded an agency determination that the protester’s proposal was unacceptable on the basis that it took exception to those requirements is denied where the data rights requirements are a material term of a solicitation and the record shows that the protester’s proposal took exception to those requirements.
General Counsel P.C. Highlight:
NLP asserts that, because the agency included a data rights requirement in the RFP’s evaluation scheme, NPS could not properly determine that the protester’s proposal was unacceptable on the basis that it took exception to those requirements. The protester argues that an offeror’s understanding of the Rights in Data clause was but one portion of the comprehensive plan factor, which was worth a maximum of ten points, and that the failure of the protester’s proposal to comply with that clause was properly considered in the comprehensive plan factor scoring. GAO states that in negotiated procurements, a proposal that fails to comply with the material terms of the solicitation should be considered unacceptable and may not form the basis of award. GAO will not disturb an agency’s determination of the acceptability of a proposal absent a showing that the determination was unreasonable, inconsistent with the terms of the solicitation, or in violation of procurement statutes or regulation. Further, when a dispute exists as to the exact meaning of a solicitation requirement, GAO will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all provisions of the solicitation.
Here, it is unclear what purpose was served by the agency’s inclusion of an offeror’s understanding of the Rights in Data clause as one aspect of the comprehensive plan evaluation factor. But the protester’s interpretation–that the agency was restricted to the comprehensive plan evaluation factor when considering a proposal’s understanding of that clause–negates both the text of the clause, which is included in full in the solicitation, as well as the Ownership of Products provision in the RFP, requiring offerors to grant to the agency unrestricted use of the materials produced under the contract. When read as a whole, then, the only reasonable interpretation of the RFP is that it requires proposals to offer the agency unrestricted data rights. Because the protester’s proposal failed to do so, GAO finds no reason to question the agency’s decision to exclude it from the competition as unacceptable. The protest is denied.