Express Medical Transporters (EMT) protested the award of a Veterans Affairs (VA) contract to Wheelchair Transport Services (WTS) for non-emergency special mode transportation services. EMT contended that a clear reading of WTS's proposal should have led the VA to conclude that WTS's proposal had specifically taken exception to the applicable subcontracting limitation found in FAR 52.219-14.
GAO (Government Accountability Office) denied the protest.
The decision noted that as a general matter, an Agency's judgment as to whether a small business offeror will comply with the subcontracting limitation clause is a matter of responsibility and the contractor's actual compliance is a matter of contract administration. If a proposal, on its face, leads an Agency to conclude that an offeror has not agreed to comply with the subcontracting limitation , the matter is one of proposal acceptability. This is because the limitation on subcontracting is a material term of the solicitation, and a proposal that fails to conform to a material term or condition of a solicitation is unacceptable and may not form the basis for an award.
An offeror need not affirmatively demonstrate compliance with the subcontracting limitations in its proposal. Rather, such compliance is presumed unless specifically negated by other language in the proposal. Accordingly, where an offeror submits a proposal, the offeror agrees to comply with the limitation, and in the absence of any contradictory language, the agency may presume that the offeror agrees to comply with the subcontracting limitations.
The presumption may be rebutted by other language in the proposal but the protestor bears the burden to affirmatively demonstrate that the awardee's proposal takes exception to a material term of the solicitation.
The GAO looked over WTS's proposal and found nothing on the face of WTS's proposal or associated attachments that should have led the VA to determine that WTS had taken exception to a material term of the solicitation, specifically the limitation on subcontracting. Neither could EMT point to any portion of WTS's proposal in which WTS states an intent to take exception to a material term of the solicitation.
You can read the entire decision here.
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