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Negotiated acquisitions
Army Lawyer, Jan-Feb, 2003
"Late Is Late" ... Especially with No Extension
In Lyons Security Services, Inc., (1) the General Accounting Office (GAO) found that the agency properly rejected the protestor's proposal as late, despite the protestor's assertion that the agency had extended the closing date. Under the request for proposals (RFP), the Department of State (DOS) sought to procure security guard services for the U.S. Embassy in Denmark and established 12 February 2002 as the due date for the submission of proposals. Lyons Security Services, Inc. (Lyons Security) submitted a proposal on 20 February, which the DOS rejected as late. Lyons Security challenged the agency's rejection of its proposal, claiming it had received Amendment Number 2 via E-mail, extending the due date for proposals until 22 February. (2)
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In response to the protest, the contracting officer testified that he did not issue or authorize anyone else to issue another amendment. Additionally, he stated that he never considered issuing a second amendment or extending the closing date. For it part, the protestor produced no evidence to support its assertion, claiming it had deleted the E-mail notice of the amendment. (3) Unable to retrieve the E-mail, Lyons Security also could not provide the Internet site address of the alleged E-mail or the site from which it downloaded the supposed amendment. Finding no evidence in the record to support the protestor's claim, the GAO denied the protest. (4)
Is It a Technical Evaluation Factor or Not?
In A.I.A. Construzioni S.P.A, (5) the GAO ruled that failing to submit an Italian nulla osta certification statement with its proposal, as required by the RFP, did not render the awardee's proposal non-compliant because the RFP did not convert the requirement from a responsibility matter into a technical evaluation criteria. The RFP, for construction work at the naval air station in Sigonella, Italy, contemplated the award being made without discussions on a "lowest evaluated price" basis. (6) The RFP also notified offerors that they had to submit a nulla osta certification statement with their initial proposals. A nulla osta statement, issued by the Italian Chamber of Commerce as part of its certification, indicates the "named contractor has not violated Italian anti-mafia laws, and is eligible to perform on public contracts." (7)
Although Lotos Construzioni S.R.L. (Lotos) submitted the lowest-priced offer, its certification did not include the nulla osta statement. The Navy rejected the proposal and awarded to the protestor, A.I.A. Construzioni (AIA). In an agency-level protest, Lotos argued that it should have been allowed to submit the certification at any time before award. "The Navy agreed; deciding the anti-mafia certification was a matter of responsibility, and that it therefore could be submitted up until the time of award." (8) As a result, the Navy terminated the contract with AIA and awarded to Lotos. AIA protested the award decision. (9)
While the GAO noted that agencies may convert traditional responsibility criteria into technical evaluation criteria in negotiated procurements, it found nothing in this case to indicate that the Navy "intended to convert the nulla osta certification into a matter of technical acceptibility." (10) Indeed, the RFP specifically listed the certification, of which the nulla osta statement was a part, as "other information to be used in the determination of responsibility." (11) Consequently, the GAO concluded that the Navy had properly awarded the second contract to Lotos, notwithstanding the requirement that offerors submit the anti-Mafia certification with their initial proposals, because the RFP treated the nulla osta statement as information relating to responsibility. (12)
"Rough Floor Plan" Did Not Satisfy Solicitation's Requirements
In Marshall-Putnam Soil & Water Conservation District (Marshall-Putnam), (13) the GAO found that an offer that included a "rough floor plan" of the office space it proposed for lease--rather than the architectural elevation and landscape plans specified in the solicitation--was a nonconforming offer. As such, the GAO found that the offer was ineligible for award. In Marshall-Putnam, the protestor challenged the award of a U.S. Department of Agriculture (USDA) contract that leased office space from Henry Developers, Inc. (Henry Developers). The protestor claimed that Henry Developers' proposal did not conform to the terms of the USDA's solicitation for offers (SFO), (14) which required an architectural plan drawn to scale and elevation drawings. (15) The GAO agreed, noting that without the required information, the agency simply could not have known what it was getting. (16) Ultimately, the GAO said that the fundamental problem was that "the agency improperly made assumptions about the building that Henry proposed--and concluded that it not only satisfied the government's needs, but warranted a nearly perfect technical score--with no evidence before it of the actual features of the building being proposed." (17)
