Monday, April 3, 2017

But For the Lack of a Signature, An Opportunity was Lost

In May 2016, the Navy issued a solicitation for repair, renovations, new construction and alterations to shore facilities in the Washington DC area.  It was a typical RFP (Request for Proposal) where award would be made to the responsible offeror whose offer conforms to the solicitation and represented the best value to the Government. One of the RFP instructions included the following:
If the Offeror is a Joint Venture (JV) ... the Offeror shall submit a signed copy of the Joint Venture agreement indicating the proposed participation of each Joint Venture member. Failure to submit the required Joint Venture Agreement will be considered unacceptable.
CJW Desbuild, a Joint Venture, was one of twenty-four proposals submitted in response to the solicitation. However, the Navy excluded CJW's proposal from consideration because the Joint Venture did not provide a signed copy of the JV agreement as required by the solicitation.

After awards were made to other companies, CJW protested to the GAO. CJW contended that its failure to submit a signed copy of its joint venture agreement was a minor oversight and that it was unreasonable for the Navy to downgrade its proposal on that basis. CJW maintained that the JV was an established company with its won DUNS number and that it is currently working with the Navy on other contracts. CJW further argued that  the Navy should have used clarifications to permit it to correct its failure to provide a signed joint venture agreement.

The GAO did not buy CJW's arguments. The solicitation specifically required a signed copy of the JV agreement and warned that failure to submit the agreement would be considered unacceptable. Since the requirement for a signed JV agreement was specifically linked to technical acceptability, it could not be considered an informality or minor irregularity, subject to waiver.

The GAO also noted that the lack of a signed agreement could not have been remedied through clarifications. FAR limits clarifications to give offerors an opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. Clarifications cannot be used to cure deficiencies or material omissions in a proposal or otherwise revise a proposal.

GAO denied the protest. This case illustrates the importance of complying with solicitation instructions to the 'T".

You can read the full decision here.

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