Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Monday, March 31, 2014, 7:00pm EST
Business Integra, Inc., B-407273.22, February 27, 2014
There are a host of products where 99.9% effectiveness is perfectly acceptable to meet our needs. For example, someone worried about germs would probably consider a hand sanitizer claiming to be 99.9% effective as close to perfect as can be expected. Whether the product actually meets the claimed 99.9% effectiveness is a separate issue, but we generally accept it at face value and consider the germ issue handled.
However, as is often the theme in these articles, things play out a little differently in government contracting. Often times, being 99.9% effective, or almost perfect, isn’t quite good enough when it comes to federal contract awards. This was a lesson recently driven home by GAO in a bid protest decision.
In 2010, the Department of Homeland Security issued a solicitation for the second iteration of its enterprise acquisition gateway for leading edge solutions (EAGLE II) program. The solicitation anticipated award of multiple indefinite-delivery/indefinite quantity contracts. The solicitation also stated that there would be a separate competition for proposal evaluation and award purposes to be held exclusively among small businesses.
The solicitation required offerors to submit a pricing template in which the offeror would include all of its labor rates for each of the solicitation’s 36 labor categories. However, each of these labor categories was broken up into 3 different levels of experience, and each level of experience was further separated into 2 different levels of security clearance.
To make things more complicated, the offerors were required to submit all of these labor rates for two different locations, factoring in performance at either a government site or a contractor site. And because the solicitation provided that the contracts would be awarded for a 5 year base period, with a 2 option years, the offerors had to include all of these different labor rates for all 7 years of the contract.
The solicitation stated that each offeror had to submit labor rates for all of the labor categories, including all contract periods. Thus, each offeror was required to submit labor rates for 3,024 different versions of the solicitation’s required labor categories (36 categories x 3 experience levels x 2 security levels x 2 site options x 7 pricing years).
Business Integra, an 8(a) small business, submitted a proposal under the small business track of the solicitation. During the evaluation of its proposal, the agency determined that Business Integra left three labor rates blank under one of the labor categories. As a result, the agency determined that Business Integra’s proposal did not conform to the solicitation requirements and was thus ineligible for award.
Business Integra filed a protest with GAO making two basic arguments: (1) the lack of pricing reflected Business Integra’s willingness to perform at no cost to the agency; and (2) the missing prices should have been waived as a minor informality. GAO disagreed with the protester on both counts. GAO noted that the solicitation explicitly required the offerors to submit labor rates for all labor categories and all contract periods. Further, GAO has consistently held that offerors bear the responsibility to submit a proposal that contains all of the information required under a solicitation. As a result, GAO denied the protest.
In this case, Business Integra submitted labor rates for 3,021 of the 3,024 required categories. For those of you scoring at home, that is just over 99.9%. While hitting that “almost perfect” mark might be plenty good enough in most (99.9%?) situations, it clearly wasn’t enough here. As unfair as it may seem sometimes, solicitations often require offerors to be perfect in order to be eligible for an award. Contractors would be well advised that before they hit send on that email, that they conduct multiple rounds of checks to ensure that all the requirements of a solicitation have been met.