Negotiated acquisitions

Army Lawyer, Jan, 2007 by Andrew S. Kantner

Late Proposals

Lost

In Project Resources, Inc., (1) the Government Accountability Office (GAO) placed a high burden on an offeror attempting to gain relief from a proposal lost by the government. The case involved a request for proposals (RFP) for environmental remediation services for the U.S. Army Corps of Engineers. (2) Project Resources timely sent its proposal to the Corps of Engineers, but apparently the government lost its proposal. (3) After the Corps of Engineers failed to award Project Resources one of the five awarded contracts, Project Resources contacted the government who informed the company that its proposal could not be found. (4)

Project Resources filed a protest with the GAO along with a copy of the submitted proposal requesting that the GAO direct the agency to evaluate its proposal. The GAO refused, stating the general rule that the "negligent loss of proposal information does not entitle the offeror to relief." (5) Although agencies have a "fundamental obligation" to safeguard information, the overarching goal of having an open playing field for all competitors trumps the "occasional loss" of a contractor's proposal since it would be unfair to allow an offeror reconstruct an offer after the closing date of proposals. (6) Although the GAO conceded that this might be an "arguably harsh result," Project Resources did not provide "pre-closing evidence" of the proposal which might allow the GAO to disturb the Corps of Engineer's decision not to reopen the competition. (7)

The Corps of Engineers contracting officer testified that she knew of no other "comparable disappearance of a proposal" within the Sacramento District. (8) This testimony precluded Project Resources from using the limited exception of allowing relief in the case of a "systemic failure resulting in multiple or repetitive instances of lost information." (9)

Late Rejection of Late Proposal

In Argencord Machinery & Equipment, Inc. v. United States, (10) the Court of Federal Claims (COFC) ruled that the Army could reject a late proposal even though it had not discovered the submission was untimely until midway through the procurement. The U.S. Army Aviation and Missile Command (AMCOM) at Redstone Arsenal, Alabama, issued a RFP for tie rod structural support assemblies for Black Hawk helicopters. (11) Argencord faxed the first thirteen pages of its offer on 18 August 2006, or six days after the due date for initial offers, and delivered the rest the next day. (12) The Army issued an amendment, sending it to three additional offerors and Argencord, approving a request from Tek Precision Company, the ultimate winning offeror, to proffer alternate materials for the requested parts. (13) In what the contracting officer characterized as a "boo-boo" and a "rookie mistake," (14) the Army evaluated Argencord's offer and determined that it was in the competitive range for discussion purposes before realizing that it was late. (15) At that point, the Army notified Argencord that its proposal was rejected because the Army received it after the due date for initial offerors. (16)

Argencord made two arguments to revive its admittedly late proposal. Its first argument was that it was the only responsive proposal received. This argument ignored the fact that the AMCOM, in a negotiated procurement, has no obligation to reject non-responsive offers, as in a sealed bid procurement. The COFC rejected Argencord's theory, citing the agency's right to amend a solicitation based on an offeror's deviation from stated requirements. (17)

The second argument was that the AMCOM's amendment and Argencord's timely response to the amendment essentially waived the lateness of its initial proposal. (18) The COFC cited a GAO opinion with approval, holding that Hausted, Inc. (19) stated the settled rule regarding late proposals: "An extended period of negotiation that includes the submission of revised proposals cannot legally cure an initial late submission." (20)

Competitive Range

A Global Mess

In Global, A 1st Flagship Company, (21) the GAO sustained a protest on behalf of an offeror who was excluded from the competitive range based solely on a cost/price differential. (22) The Navy issued a RFP for a cost-reimbursement contract to operate and maintain inactive ships on the U.S. east coast. (23) The RFP indicated that technical factors were more important than cost/price. (24) The RFP indicated that the government would apply "plug-in" numbers for certain costs for materials; however those numbers were not specifically identified (25) and the government did not choose to provide that info in a solicitation amendment. (26)

After submission of initial proposals, the choice was between Global, the incumbent, and George G. Sharpe, Inc. Under the technical evaluation, Global was rated "highly acceptable," while Sharpe was rated "unacceptable, but capable of being made acceptable." (27) The Navy conducted a cost realism analysis on both proposals. The Navy, suspecting a clerical error, projected labor costs for option years that were missing from Sharpe's proposal. In analyzing Global's proposal, the Navy replaced proposed costs with actual cost figures from the previous year of the contract. The end result was that Global's contract was about $5 million more than Sharpe's. (28)