Pay Attention to What the Solicitation Says
August 23, 2018
The recent decision in Distributed Solutions, Inc., B-416394 (August 13, 2018) serves as another reminder of the importance of strict adherence with all solicitation requirements. Just as contract interpretation strives to ensure that every provision in the agreement is given meaning, an offeror’s review of--and response to--a solicitation cannot ignore any of its terms.
In Distributed Solutions, the Government Accountability Office (GAO) denied a protest because the protester’s proposal failed to comply with the request for proposal (RFP) requirements in a number of material respects. One of these related to the specific documentation requirement that the proposal’s cover letter address “compliance to all RFP requirements and instructions to include any exceptions to the Terms and Conditions of the solicitation [and be] signed by an officer of the Offeror that is authorized to bind the Offeror’s company.” The cover letter submitted by Distributed Solutions, Inc. (DSI) stated, “This submission addresses compliance to all RFP requirements and instructions that include any exceptions to the Terms and Conditions of the solicitation.”
The agency found DSI’s proposal nonresponsive based on, among other things, the cover letter’s failure to address (i) the firm’s intent to comply with the RFP requirements; and (ii) whether DSI took exception to any solicitation terms. When DSI protested, the GAO made quick work of this issue, noting that the RFP expressly cautioned against restating solicitation requirements: “The proposal should not simply rephrase or restate the Government requirements, but shall provide convincing rationale to address how the Offeror intends to meet these requirements.” The solicitation also made clear that, “Statements such as ‘the Offeror understands and complies’ with the requirements or paraphrasing the requirements in the RFP is considered inadequate.”
The GAO concluded that, despite these warnings and the clear instructions in the solicitation, DSI “simply restated the requirement,” which left the contracting officer unclear as to whether DSI complied with all of the RFP terms and conditions and whether the firm was taking exception to any terms. Instead, DSI’s cover letter failed to affirmatively represent that the firm intended to comply with the solicitation requirements or unambiguously indicate that the firm did not take exception to any solicitation terms, as anticipated by the RFP. Because of this, the GAO found reasonable the agency’s conclusion that DSI’s cover letter failed to comply with the RFP.
The lesson here? Every part of the solicitation is important and must be heeded and addressed. If the agency requires a specific assurance, provide it. If an RFP tells you what not to do, don’t do it. Otherwise, you may end up fighting a losing battle over whether your proposal is even eligible for consideration.
© 2018 Jackson Kelly PLLC