Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, August 17, 2012, 12:46pm EDT
We have all heard that age-old proverb, “all good things come to those who wait.” Any company that has participated in government contracting has learned the meaning of patience — in some cases the hard way.
Protesting contractor: Global Automotive Inc. (GAI), D.C.
Contracting agency: Department of the Army, Army Material Command
Issue: Whether a bid should have been disqualified.
GAO decision, August 3, 2012: Denied.
Post-mortem: GAI protested the award to Global Fleet Sales LLC (GFS) of 181 Ford Transit cargo vans for use in Afghanistan. The request for proposal was issued on June 27, 2011. Two months later, the Army had proposals from three offerors, including GAI and GFS. Unable to make an award within the 30 day proposal acceptance period, as required by the RFP, the Army requested an extension of proposals until November 30, 2011. After conducting discussions, the Army asked for another extension of proposals until January 30, 2012.
On January 18, 2012 the Army again asked offerors for an extension of proposals, this time until February 29, 2012. In response to this third request for an extension, GAI informed the Army that “[O]ur prices are valid until 1 February, only and we reserve the right to adjust prices hereafter.” The contracting officer excluded GAI from consideration due to the fact that the evaluations would not be complete before GAI’s offer expired.
GAI protested on the grounds that the Army unreasonably eliminated its proposal from consideration and that the Army should have allowed it to revive its expired proposal. But the GAO referred to earlier decisions where it found that “An offeror’s compliance with a solicitation’s acceptance period is required so that all offerors share the same business risk.” Based on that, it said that the Army did not act unreasonably when it excluded GAI’s proposal from consideration. The GAO further found that reviving a proposal when the offeror has stated it would not extend its offer and reserved the right to adjust its offer would “compromise the integrity of the competitive bidding process.”
Every company that participates in government contracting will confront the scenario like the one mentioned here where it seems the government will never make a decision. There will be extensions, protests, modifications and amendments that drag the solicitation out — sometimes for years. The urge to push back the way GAI did here and try to force a decision is strong, but contractors must resist that impulse and stay patient.
GFS was patient; 10 months after the solicitation was published and 4 extensions later the “good thing” that came to them was a lucrative government contract for the purchase 181 vehicles.