By: Eric Whytsell
It has been suggested that “proper planning prevents poor performance.” While that may not always be the case, the statement does provide a pleasantly alliterative reminder that establishing procedures generally does help minimize mistakes. In the context of proposal preparation, one mistake contractors should try to avoid is failing to acknowledge amendments to the solicitation. The recent Government Accountability Office (GAO) decision in TTCC, Inc., B-412874 (May 17, 0216) underscores the importance of expressly noting every amendment in your proposal.
The protest involved an Air Force procurement for airfield grounds maintenance services. The Air Force followed up the original request for proposals (RFP) with a number of RFP amendments providing answers to offeror questions seeking clarification of the agency’s requirements. Unfortuantely, one of the offerors, TTCC, Inc., submitted a proposal that neglected to acknowledge one of the amendments. When the Air Force noted the failure, it rejected TTCC’s proposal and did not consider TTCC for award.
TTCC protested, arguing that its failure to acknowledge the amendment did not matter because the amendment itself was not material. While the amendment in question did reiterate answers to earlier questions, it also provided offerors with new information, including answers to a final set of questions. Among other thing, this additional information made clear that 10,500 feet of new fencing had been installed without a gravel border, making them different from other fencing on the base.
The Air Force argued that this information rendered the amendment material because it meant that the offerors’ proposals would need to account for the significant additional effort required to control vegetation near that section of the fence. According to the agency’s calculations, that effort would require 168 man hours a year and 840 man hours over the life of the five-year contract. TTCC responded that the additional work arguably required by the amendment was “trivial compared to the overall scope of the work.”
After noting that an offeror’s failure to acknowledge a material amendment generally renders its proposal unacceptable and such proposal may not form the basis for award., GAO addressed the issue of materiality: “While no precise rule exists as to whether a change required by an amendment is more than negligible, such that failure to acknowledge the amendment renders the proposal unacceptable, an amendment is material where it imposes legal obligations on a party that are different from those contained in the original solicitation, or if it would have more than a negligible impact on price, quantity, quality, or delivery.”
Applying that analysis here, GAO held that the Air Force correctly determined the amendment at issue to have made a material change to the scope of work because the 10,500 linear feet of new fencing lacked a gravel barrier/mowing strip. Since TTCC did not “meaningfully challenge” the Air Force’s explanation of the amount of additional effort that would be required, GAO had no basis to conclude that the additional effort could be considered negligible or insignificant to the offerors’ pricing. For this reason, GAO, found the agency’s rejection of TTCC’s proposal for failure to acknowledge the amendment to be reasonable.
Had TTCC properly planned how to ensure that its proposal acknowledged all the RFP amendments (and/or successfully implemented whatever procedures it had in place), it would not have been forced to fight over materiality. It may seem obvious, but it’s worth repeating: the surest way to avoid the problem is simply to treat every amendment as material and make sure you acknowledge all amendments in your proposal.
Eric Whytsell is responsible for the contents of this Article.
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