Jump to content

Failure to Follow Section L Instructions as a Deficiency vs Weakness


WhatHump

Recommended Posts

Does anyone know of an instance in which a protestor has successfully challenged the competition winner by claiming that the winner should have been found deficient because the winner did not comply with Section L instructions? I have found case law that supports the Agency in the instance when a disappointed offeror complained about a deficiency levied upon it for failure to follow Section L instructions. See, HDL Research Lab, Inc., B-294959, December 21, 2004; JBlanco Enterprises, Inc., B-402905, 2010 U.S. Comp. Gen. LEXIS 203, August 5, 2010; Managed Care Concepts, LLC, B-402750, 2010 U.S. Comp. Gen. LEXIS 146; 2010 Comp. Gen. Proc. Dec. P164, July 15, 2010 (did not submit resumes on proposed personnel); Delta Food Service, B-245804.2, 1992 U.S. Comp. Gen. LEXIS 158; 92-1 Comp. Gen. Proc. Dec. P172, February 11, 1992 (did not submit letters of intent), Al Andalus General Contracts Co. v. U.S., No. 08-599C, U.S. Court of Federal Claims, 86 Fed. Cl. 252; 2009, U.S. Claims LEXIS 60, March 11, 2009 (formatting). However, I have not found an instance where a disappointed offeror successfully challenged the winner's 'weaknesses' or absence of deficiency for the failure to follow Section L (i.e. that the winner should have been found deficient for the failure to follow Section L). I am making a distinction because, in the case law that I found, the GAO implicitly holds that the Agency may give a deficiency for the failure to follow what may seem like ministerial instructions in Section L. In an instance of a successful challenge by another offeror based on a winner's failure to follow Section L instructions, that would likely mean the Agency must find a deficiency for failure to follow Section L instructions.

Link to comment
Share on other sites

Try this link: http://www.wifcon.com/cgen/4048804.pdf

North Wind, Inc; Earth Resources Technology, Inc

4 Nov 2011

B-404880.4, B-404880.5, B-404880.6

Link to comment
Share on other sites

Guest Vern Edwards
Does anyone know of an instance in which a protestor has successfully challenged the competition winner by claiming that the winner should have been found deficient because the winner did not comply with Section L instructions?

Yes. See IBM U.S. Federal, a division of IBM Corporation; Presidio Networked Solutions, Inc., GAO B-409806, 2014 CPD ¶ 241, August 15, 2014, in which the GAO sustained a protest because the agency selected a firm that did not comply with a page limitation.

​In order to win such a protest the protester must show (a) that the selectee failed to comply with proposal preparation instructions and that the agency failed to enforce the instructions and ( b ) that the protester was prejudiced by the selectee's failure to comply and the agency's failure to enforce. Mere failure to comply with instructions is not enough.

Link to comment
Share on other sites

In an instance of a successful challenge by another offeror based on a winner's failure to follow Section L instructions, that would likely mean the Agency must find a deficiency for failure to follow Section L instructions.

A failure to follow Section L instructions could be an informality or minor irregularity, which can be waived pursuant to FAR 52.215-1(f)(3). As such, a failure to follow the instructions would not necessarily constitute a deficiency. I think the failure to follow instructions would have to be material to constitute a "deficiency" as defined by FAR 15.001.

Link to comment
Share on other sites

There are numerous examples of sustained protests over the government's award of a contract to a non-conforming proposer in the WIFCON Protest pages, which are listed by issue or listed by FAR.. I looked under the subject "FAR 15.305: Unacceptable or offers not in compliance with solicitation". Some of them would appear to meet your criteria for not complying with the proposal submission requirements.

Thank you all so much!!

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
×
×
  • Create New...