Magic Words Are Not Always Required to Fulfill Solicitation Requirements
February 29, 2016
By: Eric Whytsell
Preparing a responsive proposal requires reading and understanding the solicitation requirements and then meeting them -- as clearly and unambiguously as possible. The most direct and least risky way to craft such a response is to adopt whatever method of compliance the solicitation suggests (or requires). But, as the recent decision in Penn Parking, Inc., B-412280.2 (February 17, 2016) makes clear, the procuring agency may in its discretion, sometimes accept something less than strict compliance with solicitation terms.
The protest involved a small-business set-aside procurement for parking services issued by the Department of Health and Human Services, National Institutes of Health (NIH). The award decision was to be made on a best value basis, considering price and a number of non-price factors, including past performance.
The past performance factor required offerors to provide one example of a contract performed within the last three years as a prime contractor that was similar to the work described in the solicitation, submit a past performance questionnaire, and have its past customer timely e-mail the completed questionnaire to the NIH contracting officer. The request for proposals (RFP) also required that offerors include a specific certification in their proposals certifying that “the past performance questionnaire was sent to the past customer for the proposal-provided past performance example no later than three days before the receipt-of-proposal deadline.” It went on to state that “[i]f an offeror’s proposal fails to include the aforementioned certification, the offeror’s proposal shall be discarded as unacceptable for failing to comply with a material term of proposal submission, and the proposal shall be given no further consideration.”
NIH received proposals from four offerors, including Penn Parking, Inc. and Mid-Atlantic Services Group, Inc. Mid-Atlantic’s proposal indicated that the “Past Performance Information Questionnaire from [the customer] was emailed to [the contracting officer] on Friday 8/28/15.” Initially, NIH rejected Mid-Atlantic’s past performance questionnaire because it lacked the specific certification language set forth in the RFP and awarded the contract to Penn Parking. When Mid-Atlantic protested the award, the agency took corrective action, and the Government Accountability Office (GAO) dismissed the protest as academic.
Under the corrective action, NIH reevaluated proposals and determined that Mid-Atlantic was the lowest-priced, technically acceptable offeror. After NIH made the award to Mid-Atlantic and informed Penn Parking that it would be terminating its contract, Penn Parking filed its own protest, arguing that Mid-Atlantic’s proposal was unacceptable because it failed to comply with a material term of the RFP.
More particularly, Penn Parking asserted that Mid-Atlantic’s proposal was unacceptable because it did not contain, verbatim, the certification set forth in the RFP stating that the past performance questionnaire had been sent to its past customer no later than three days before the response deadline. In response, the agency contended that Mid-Atlantic satisfied the intent of the certification requirement by complying with the RFP's requirements both to timely send the questionnaire to the customer, and to ensure that the agency receive the completed questionnaire prior to the proposal due date. According to the agency, this outcome rendered the deviation from the RFP certification language a minor informality that could be waived.
GAO sided with the agency. While acknowledging that a nonresponsive proposal in a negotiated procurement is considered unacceptable and may not form the basis for award, GAO noted that it only disturbs the agency’s determination of a proposal’s acceptability where there is a showing that the determination was unreasonable, inconsistent with the terms of the solicitation, or in violation of procurement statutes or regulation. In addition, GAO reads RFP provisions restrictively only where it is clear from the RFP that the agency intended such a restrictive interpretation.
In this case, the RFP clearly required offerors to submit a certification that the past performance questionnaire had been provided to the customer at least three days before the proposal due date. However, NIH explained – and the protester did not dispute -- that the purpose of the certification was to ensure that an offeror without “significant past performance history” did not fail to send the past performance questionnaire to its previous customer, thereby resulting in the past performance evaluation “becoming hollow.” While Mid-Atlantic’s certification did not use the precise RFP language, it did represent that the past performance questionnaire was emailed to the contracting officer on Friday 8/28/15, which was tantamount to confirming what the RFP required: that the past performance questionnaire was sent to the past customer no later than three days before the receipt-of-proposal deadline (September 1, 2015). In addition, the protest record showed that the contracting officer had received the questionnaire from Mid-Atlantic’s customer on August 25, more than three days before the proposal due date. Thus, the RFP’s timing requirements were met.
Based on these circumstances, GAO denied the protest, holding that the agency reasonably concluded that Mid-Atlantic’s proposal satisfied the purpose and intent of the RFP’s certification requirement such that the deviation in the certification language was only a minor informality not requiring rejection of the proposal. GAO also noted that it had no basis for thinking that the agency’s waiver of the strict requirement had any prejudicial effect, as Penn did not allege that it would have changed its proposal to its competitive advantage had it known that the agency would have accepted a differently worded certification.
It still makes the most sense to read closely and strictly comply with solicitation requirements. But remember this case when considering potential grounds for protest. Not every technical deviation by the awardee and agency gives rise to a winning argument based on the failure to comply with a material term. In short, there also needs to be prejudice: the term must be material, and the failure needs to matter.
Eric Whytsell is responsible for the contents of this Article.
© Jackson Kelly PLLC 2016