Two pieces of advice I often provide to government contractors are:
1.When responding to a solicitation, give the government precisely what it asks for – right down to the letter. This includes providing the information in the correct section of your proposal. The agency will not play hide-and-seek; and
2. If you think there is something askew with a procurement or award decision – act fast. There are lots of different deadlines enforced by GAO, but they all come and go very quickly. A contractor typically must act within 10 days of when it knows (or should have known) of a protestable issue. An even shorter timeline (5 days) applies in order to obtain an often essential stay of contract award and/or performance.
These concepts converge when it comes to bid protests related to defective solicitation terms. GAO Bid Protest Rule 21.2(a)(1) states that a protest alleging improprieties or errors on a solicitation that are apparent on the face of the solicitation must be filed prior to bid opening or the closing date for the receipt of initial proposals.
In other words, a contractor cannot adopt a wait-and-see approach. The protest must be filed before the contractor submits its bid or proposal.
In a recent GAO decision, a contractor gambled on waiting and ultimately lost the protest and a chance at the contract award. The procurement at issue involved an Army contract for LED lighting. The protester believed that its proposal was lower-priced that the awardee’s proposal and exceeded the solicitation requirements.
The Army rejected the protester’s proposal as non-responsive. The solicitation included three categories of lights. CLINS 1 and 2 required “type two” LED lights while CLIN 3 required “type three.” All lights were also required to have a minimum glare rating of “two.” According to the agency, the protester’s proposal included “type three” lights for all CLINS and a glare rating of “three.”
The protester did not dispute that its proposal differed from the solicitation requirements, but argued that the requirements were unclear and unreasonably restrictive. With ever getting to the merits of these arguments, GAO denied the protest as an untimely challenge to the solicitation: “To the extent that the protester now argues that it was unreasonable for the agency to have a minimum requirement for the type of light to be procured, or that the [solicitation’s] technical specifications were unclear, these arguments allege improprieties in the solicitation that, in order to be timely, were required to be raised prior to the closing time for receipt of quotations. Accordingly, these allegations are untimely and will not be considered.”
At the end of the day, it did not matter whether (or not) the LED lights offered by the proposal were “better.” The contractor did not follow the solicitation to the letter and lost as a result.
The lesson here for contractors is an easy one. Address any solicitation uncertainties early and to your complete satisfaction. Most issues can be addressed through Q&A or other pre-bid closing communications. If problems are resolved, proceed and comply with the solicitation as-written. If a defect remains even after your best efforts, the only solution is a bid protest filed before the closing date for proposals.
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