Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Monday, March 17, 2014, 11:49am EST
MOWA Barlovento, LLC-JV, B-408445, September 12, 2013
There is the old philosophical question: if a tree falls in the forest, but no one is there to hear it, does it make a sound? There is no need for us to delve into a deep philosophical discussion here, but there is a somewhat similar question that might be relevant to federal contractors. If an offeror submits a proposal, but does not acknowledge a material solicitation amendment, does it remain an offeror? GAO recently addressed this question in MOWA Barlovento, LLC-JV.
In MOWA Barlovento, the Army Corps of Engineers issued a solicitation for the renovation of an infantry squad battle course at Fort Knox, Kentucky. The solicitation was amended several times prior to the deadline for receipt of proposals. One such amendment provided a price breakout schedule that the offerors were to use in providing their offered prices, and informed offerors that the optional item listed in the solicitation could be awarded within 6 months of a notice to proceed.
After receipt of proposals, the agency established a competitive range that included all eight offerors. The agency transmitted discussion letters to each of the offerors, which were sent by email. Each discussion letter included another amendment to the solicitation, Amendment 6, which provided a new price breakout schedule, and informed the offerors that the optional item could be awarded within 200 days of a notice to proceed. The discussion letters also informed offerors that they were required to respond to the letter and acknowledge Amendment 6, and failure to do so would be understood as an intent to withdraw from consideration of award.
Apparently, the protester was experiencing internal issues with its email system, and it did not receive the agency’s email with the discussion letter. As a result, the protester failed to respond to the discussion letter or acknowledge Amendment 6 prior to the set deadline. After the deadline passed, the protester did contact the agency inquiring as to whether there was anything to be done with its proposal. The agency responded in the negative, but did not inform the protester that the deadline was missed for responding to the discussion letter.
The agency later requested final proposal revisions from the offerors that did respond to Amendment 6, which obviously did not include the protester. After an award was made, the protester challenged the agency’s decision to exclude its proposal from the competitive range, preventing it from submitting a revised proposal. And here’s where the agency made an interesting argument.
According to the agency, it made no such decision to exclude the protester from the competitive range. Rather, the agency argued that the protester removed itself from the competition when it failed to respond to the discussion letter. The solicitation warned offerors that failing to respond to the discussion letter would be interpreted as lack of desire to pursue an award under the solicitation. The protester did not respond to the discussion letter, and thus technically it was no longer an offeror. GAO agreed with the agency, and sustained the protest.
While the agency’s “they excluded themselves” argument was the more interesting part of this decision, it is also worth noting the timeliness aspect. The protester argued that because of the technical issues it experienced with its email system, the agency should have permitted it to submit a late response. GAO disagreed, finding that the agency had nothing to do with the protester’s failure to respond. While the agency probably could have allowed a late proposal, GAO found that it was well within its rights to strictly enforce the deadline.