Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, June 8, 2012, 10:00am EDT – Last Modified: Friday, June 8, 2012, 1:06pm EDT
Comply with the requirements of a request for proposals the first time around, or find yourself disqualified from the competition.
Protesting contractor: EcoAnalysts Inc., Moscow, Idaho
Contracting agency: Environmental Protection Agency
Protest issue: Offerors must comply with limitations on subcontracting
GAO decision, March 19, 2012: Denied.
Post-mortem: The EPA noted in the request for proposals for technical support services that the contracts would be set aside for small businesses, including a clause that restricted an offeror from subcontracting more than 50 percent of the cost of contract performance incurred for personnel. The EPA awarded contracts to Herndon-based PG Environmental LLC and EnviroScience of Stow, Ohio, disqualifying EcoAnalysts for, among other things, failure to comply with the subcontracting limitation.
EPA auditors reviewed EcoAnalysts’ proposal and determined that the company would only incur roughly 47 percent of the costs of the contract in violation of the limitations of the subcontracting clause. The company was allowed to submit additional information in explanation, which it did, admitting that it had proposed to subcontract more than 50 percent of the direct labor costs. But EcoAnalysts added that it would “commit to allocating resources to insure EcoAnalysts is responsible for a minimum of 51 percent of the direct labor costs.”
Bidders often give blanket statements after the fact to comply with the requirements of the RFP, which might work if the agency offers the opportunity to resubmit proposals. But there are never guarantees. Here, EPA did not offer such an option, and the GAO found that EcoAnalysts’ “offers to comply with the subcontracting limitation do not render acceptable a proposal that is noncompliant on its face.”