The Government Accountability Office (“GAO”) regularly denies protests because an offeror made assumptions in its proposal. To the offeror, such assumptions seem perfectly reasonable but to an agency the assumptions are incorrect or contrary to the agency’s intended procurement approach. As a result, the offeror’s proposal is rejected as non-compliant.
If the offeror files a GAO protest, GAO will likely dismiss the protest as being untimely, stating that the offeror was required to challenge a solicitation’s terms and conditions prior to the deadline for the submission of proposals. This scenario is frustrating because it likely could have been avoided had the offeror simply asked the agency questions.
Frequently, clients ask us to opine on what information an agency is seeking in a solicitation or how to interpret a term in a solicitation. These questions are often asked shortly before an offer is due. While we do our best, our guidance is not a substitute for agency guidance. We appreciate offerors are busy. Most prepare proposals based on due dates. As a result, by the time an offeror begins to prepare its proposal, the solicitation’s Q&A period is over.
Below we offer best practices to avoid using incorrect assumptions when responding to government solicitations.
- Upon receiving a solicitation, identify the deadline for submitting questions to the agency (typically the contracting officer).
- If anything in the solicitation is unclear, do not guess or assume what an agency means or wants to see in an offeror’s proposal. The best practice is to ask the agency to define terms.
- Even if the solicitation’s Q&A period has ended, you should submit questions to the agency. Understand, the agency may not answer your questions, but there is no penalty or procurement violation for asking a “late” question.
- Remember that any questions submitted to an agency will be publicly disclosed. Thus, you need to balance between obtaining information necessary to prepare your proposal and not framing questions in a manner that could disclose your proposed business strategy to your competitors.
- How an agency interpreted a term in a prior procurement, even for a similar or current contract, may not necessarily reflect how the agency interprets the same term in a current solicitation. Only the agency’s interpretation of the term in the context of the current solicitation is determinative.
- To be clear, there are situations where a solicitation term is ambiguous in the sense that it may have more than one reasonable interpretation, but the possibility that there may be another interpretation is not apparent to the offeror. This may give you a valid ground for protest if you can successfully demonstrate, after the fact, the ambiguity was latent—meaning that you were not aware of the ambiguity before proposals were due, and had no reason to be aware of it. But the cost of pursuing a protest reduces the bottom-line profitability of a contract and can be avoided by asking timely questions.
- You will be unable to argue latent ambiguity if you were actually aware of an ambiguity before proposals were due. And it is important to remember that, just because an agency has a different interpretation of a solicitation term does not mean the agency’s interpretation is unreasonable. Rather, GAO will not sustain a protest where the agency’s interpretation, albeit different from your interpretation, is reasonable.
Asking timely questions sounds easy but we know it is not. Proposal teams have limited time and resources. Companies often focus on responding to commercial opportunities before government solicitations simply because margins for commercial work are generally higher than those associated with government work. However, if an offeror asks timely questions, it can save money at the end of the day by facilitating a more competitive, compliant proposal.
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