You\'ve Got To Know When To Hold \'Em and Know When To Fold \'Em
April 14, 2015
By: Eric Whytsell
As Kenny Rogers famously sung in “The Gambler”, “You've got to know when to hold 'em [and] know when to fold 'em.” This sage advice applies as well to contractors considering whether to protest, as amply demonstrated in the recent Government Accountability Office (GAO) decision in SBSI, Inc., B-410923 (March 20, 2015).
The SBSI protest involved the second Defense Intelligence Agency (DIA) multiple award procurement under the Solutions for Intelligence Financial Management (SIFM). The solicitation contained extensive proposal preparation instructions, including the requirement that offerors redact from their proposals “all information identifying the offeror, any subcontractors, or their respective personnel by name [or] . . . [i]nformation identifying the offeror, or any subcontractor, as an incumbent on the first SIFM contract vehicle.” Despite this instruction, SBSI’s proposal contained over 100 separate instances where SBSI failed to redact its proposal in accordance with the RFP requirements. As a result, DIA excluded SBSI’s proposal from the competitive range.
After a debriefing, SBSI protested, arguing that, while the failure to comply may have caused its proposal to be nonresponsive, it was only a minor informality that the contracting officer (CO) should have waived. In addition, SBSI contended that DIA had relied on an undisclosed evaluation criteria to conclude its proposal was unacceptable. In response, DIA explained that the redaction requirement was intended “to ensure an unbiased evaluation, so that no offeror would gain an unfair competitive advantage.” According to the agency, this made SBSI’s failure to properly redact its proposal not a waivable minor formality, but a material failure to comply with the RFP’s clear requirements.
GAO agreed, reiterating the well-established rule, “An offeror has the burden of submitting an adequately written proposal, and it runs the risk that its proposal will be evaluated unfavorably when it fails to do so.” It also rejected the notion that DIA was required to detail the consequences of failing to redact and refused to consider 100 separate failures to redact a “minor informality” or an “error in form that could have been easily corrected”, as SBSI claimed. In this regard, and most importantly, SBSI admitted that it deliberately left unredacted information identifying it as a contractor under the agency’s first SIFM contract because it wanted to emphasis SBSI’s experience. In other words, SBSI intentionally crafted its proposal to do precisely what the redaction requirement was designed to prevent.
It’s difficult to win a protest under such circumstances, to say the least. Sometimes the facts make it more important to “Know when to walk away, Know when to run” – or at least when to “fold ‘em.”
Eric Whytsell is responsible for the contents of this Article.
© Jackson Kelly PLLC 2015