Tuesday, June 5, 2012

Failure to Comply with Solicitation Requirements - You're Outta Here!

Back in May 2011, the EPA (Environmental Protection Agency) issued an RFP (Request for Proposal) for technical support services to support aquatic resource surveys including research and planning, field sampling-related activities, sampling logistics, laboratory analyses, analytically techniques and modeling, and reporting.

The solicitation included a standard FAR clause (FAR 52.219-14(c)) requiring at least 50 percent of the cost of the contract performance incurred for personnel shall be expended for employees of the concern. One of the bidders, EcoAnalysts submitted a proposal that included only 46.5 percent of the firm's personnel cost in its direct labor base. Because the proposal failed to conform to a material term or condition of the solicitation, the EPA ruled that it was unacceptable and threw it out of the competition. EcoAnalysts appealed the award to the Comptroller General (GAO).

The percentage of proposed contractor labor (46.5%) was not in dispute. However, EcoAnalysts argued that it was unreasonable for the EPA to conclude that EcoAnalysts could not and would not comply with the subcontracting limitation and reject its proposal, given that EcoAnalysts later assured the EPA that it would comply with the subcontracting requirements.

The GAO denied the protest. The GAO ruled that although EcoAnalysts offered to , and states that it could, comply with the requirement, the proposal was reasonably found to be technically unacceptable as submitted. EcoAnalysts' offers to comply with the subcontracting limitation do not render acceptable a proposal that is noncompliant on its face. To make EcoAnalysts proposal acceptable would have required the EPA to conduct discussions and allow EcoAnalysts to revise its cost proposal. However, the EPA was not obligated to conduct discussions with EcoAnalysts for this propose, where, as here, the agency made award without discussions to other offerors with technically acceptable proposals.

By failing to read and understand the solicitation requirements, EcoAnalysts lost out on the opportunity to compete for this work.

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