Link: GAO Opinion
Agency: Department of Energy
Disposition: Protest denied.
- Protest is denied where agency reasonably did not accept protester’s late proposal submission because protester was not the “otherwise successful offeror.”
- Agency’s rejection of protester’s initial proposal as unacceptable was reasonable where protester advised agency that the individual it proposed to be responsible for the project was no longer available and the protester’s proposed substitution was received late.
General Counsel P.C. Highlight:
TSG contends that the agency improperly rejected its proposal modification as late. TSG asserts that the agency was required to consider its late modification pursuant to the RFP provision stating that “a late modification of an otherwise successful proposal that makes its terms more favorable to the government will be considered at any time it is received and may be accepted.” TSG also contends that at the time it was eliminated from the competition, the agency had not selected an awardee and that TSG, like all other offerors at that point in the procurement, was “in line for award” when it submitted its modification to the agency. GAO states that TSG’s argument is without merit. Under negotiated procurements, the FAR provides generally that a proposal received after the time set for receipt shall not be considered. GAO has long held that the late proposal rule alleviates confusion, ensures equal treatment of offerors and prevents one offeror from obtaining a competitive advantage as result of being permitted to submit a proposal later than the deadline set for all competitors. The FAR provides a limited exception for receipt of late proposals that are submitted by the “otherwise successful offeror” and which provide more favorable terms. This exception to the general “late is late” rule is intended to allow the government to receive the benefit of a more advantageous proposal from the offeror who has been selected for award, without offending the general rule that offerors must be treated equally. An “otherwise successful proposal” is one that would result in the award of the contract to the offeror regardless of the late modification; generally, this means that the government may accept a favorable late modification only from the offeror already in line for award. This exception is not available for every proposal submitted. Furthermore, an offeror cannot make itself the “otherwise successful offeror” by submitting a late proposal modification; instead the offeror must already be the offeror in line for award prior to the time the late proposal modification is submitted. In this regard, an offeror cannot avail itself of the late proposal submission provision where the agency has not already identified an “otherwise successful offeror.”
Here, the agency had only begun its evaluation of proposals when it was advised by TSG that its project manager was no longer available to perform the contract, or to attend the scheduled oral presentation. Without this individual TSG’s proposal was deficient, and TSG cannot be viewed as, the “otherwise successful offeror.” On this record, GAO concludes that the agency’s determination not to accept TSG’s late proposal modification was entirely consistent with the RFP and reasonable under these circumstances.
TSG also argues that the agency’s cancellation of its oral presentation and elimination of its proposal from the competition were unreasonable. Where a protester challenges an agency’s evaluation of a proposal’s technical acceptability, GAO’s review is limited to considering whether the evaluation is reasonable and consistent with the terms of the RFP and applicable procurement statutes and regulations.
TSG’s argument that the agency’s decision to reject its proposal was unreasonable is primarily based on its contention that the agency improperly refused to accept its late modification. TSG does not argue that the agency should have evaluated its proposal as originally submitted. In any event, the record shows that once TSG advised the contracting officer that the individual it proposed as its project manager was no longer available, TSG’s proposal did not meet the RFP requirement that the proposal identify at a minimum, the key individual responsible for the overall contract, and a letter of commitment for that key person. Under these circumstances, GAO cannot say that the rejection of TSG’s proposal was unreasonable or violated the terms of the RFP. The protest is denied.