Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, June 1, 2012, 12:15pm EDT
Bidders often assume in their proposals that an agency or evaluator is aware of facts regarding technical, key personnel or past performance. It is easy to do, especially if the proposal includes personnel or skills provided by the company to the agency under a prior contract. But better to be safe than sorry: Potential offerors, even if they are the incumbent, must treat each proposal separately and conform their proposal to the exact terms of the solicitation.
Protesting contractor: Wegco Inc., D.C.
Contracting agency: General Services Administration (GSA)
Protest issue: Whether the agency should have recognized technical capabilities of the incumbent.
Post-mortem: GSA’s request for proposals for building operations and maintenance was quite clear: selection would be made on a lowest-priced, technically acceptable basis. Wegco, who was in a partnership with the incumbent and proposed some of its key personnel, but failed to provide proof that they were licensed as required by the terms of the solicitation. Wegco was found technically unacceptable as a result and was not considered for award of the contract.
Wegco argues two issues in its protest. First, it claimed that the solicitation did not clearly indicate that licenses were required, asking instead for “proof of licensing” for key personnel. Wegco provided a statement listing the licenses or certifications that each person had, which didn’t suffice for GSA, and GAO agreed. Wegco’s second argument was that even if the RFP required copies of the licenses, GSA them on file, since the personnel proposed were incumbents. This argument too fell short; while GAO has found in the past that an evaluator “cannot ignore information of which they are personally aware, even if that information is not included in the offeror’s proposal,” it found in this case that the rule only applies to past performance, not technical evaluations. As such, GAO found that “an offeror’s technical evaluation is dependent on the information furnished.”