May Newsletter: Key Protest Decisions
Key Protest Decisions
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Recently, both the Arbinger Company (Arbinger) and the McKinley Group (McKinley) filed protests in response to the GSA Human Capital and Training Solutions Small Business (HCaTS SB) contract awards. GSA’s award decision and the subsequent GAO protest decision in these cases reinforces what we have always known to be true: when it comes to solicitations, Section L is the bible.
In the HCaTS SB RFP, GSA offered very explicit instructions as part of its solicitation indicating that GSA “intends to strictly enforce all of the proposal submission requirements” and that failure “to comply with these requirements may result in an Offeror’s proposal being rejected as being non-conforming to solicitation requirements.”
Arbinger submitted an HCaTS proposal response for both the Small Business and Unrestricted tracks, however, they mistakenly submitted the SB self-scoring attachments as part of their unrestricted proposal instead of the forms specific to the unrestricted pool. GSA notified Arbinger that their proposal was rejected for failure to submit these attachments. Arbinger filed a protest that argued (1) the agency “unreasonably rejected Arbinger’s proposal because it submitted the wrong version of an RFP attachment” and (2) the agency should have engaged in clarifications to allow Arbinger to submit the correct version.
GAO released an Advisory Opinion stating they found Arbinger’s protest without merit. Although Arbinger cited numerous reasons why the submission error should not have caused their proposal to be rejected, the GAO opinion noted that their role was to “determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria” and in that regard, an “offeror has the burden of submitting an adequately written proposal, and runs the risk that its proposal will be evaluated unfavorably when it fails to do so.” GAO further stated the well-settled ruling that “[a]n agency may, but is not required to, engage in clarifications…to resolve minor or clerical errors.” GAO’s opinion in this case is the perfect example of why you must ensure your proposal is in strict compliance with the proposal instructions laid out in the solicitation.
In the case of McKinley, they were also eliminated from the HCaTS competition for failure to follow instructions. The RFP required Offerors who submitted a collection of Task Orders as a single reference to identify this as project number “6”, but in McKinley’s proposal, they identified this reference as project number “5”. McKinley asserted that its proposal was unreasonably rejected and they should have been allowed to correct their error. However, GAO’s opinion in this case sided with the protestor, and not the agency. In GAO’s opinion, they stated that GSA’s “decision to reject McKinley’s proposal because it offered only one relevant experience project…and listed it as project 5, rather than project 6 was unreasonable.” Their advisory opinion stated that in this case, they would sustain McKinley’s protest.
There are several important points to note as a result of these rulings. First, why was GSA’s elimination of one company deemed reasonable, and the other unreasonable? In the case of Arbinger, GAO noted that “clarifications cannot be used to cure deficiencies or materiel omissions in a proposal or otherwise revise a proposal” and that providing the incorrect attachment was indeed a materiel omission or deficiency. However, the case of McKinley did not involve a materiel omission or deficiency, and therefore resulted in a different ruling. This is a fine distinction that should not be risked when following RFP instructions.
Second, although McKinley did prevail in their protest, their proposal error caused them to spend considerable resources to be readmitted into competition. A thorough compliance review could have saved them much time and money.
And finally, instructions are often presented in a manner allowing for evaluators to quickly and easily get to the information they need for evaluation, while also providing a method to eliminate competitors that cannot or do not follow instructions. It is not worth the risk of elimination, or even the cost of filing and defending a protest, not to pay strict attention and follow instructions exactly as stated. For each proposal review, be sure to identify a single reviewer who is solely focused on compliance to ensure that the information presented in your proposal is strictly in line with the solicitation instructions. When it comes to compliance, Section L is compulsory.
