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Post-Protest Realization of Failure to Meet a Material RFP Requirement


govt2310

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HYPO:

An agency finds ABC's proposal to be Technically Acceptable. Later, the agency sends ABC a Notice of Award Letter notifying them that ABC is an unsuccessful offeror. ABC files a protest at GAO. After the protest is filed, the agency realizes that ABC's proposal should have been found Technically Unacceptable, because it failed to meet a material solicitation requirement.

QUESTION:

Does anyone know of a GAO Decision with these facts? Do you think GAO would or should deny the protest, just based on these facts?

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I don't think I would want that shoddy workmanship going to a GAO decision. I am pretty sure my legal staff would tell the GAO that we are taking corrective action and I would be told to reopen the competition and re-evaluate the proposals. Depending on what else was in the protest and where the protester stood, we might even open discussions and allow proposal revisions to correct the deficiencies.

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Since it is a fundamental principle of government contract law that the government can't make an award of an offer that it knows deviates from material solicitation requirements, what are you worried about? Don't you have a lawyer who can do this research and/or discuss with GAO? I don't know all the GAO rules but I do know that my lawyer, Steve Feldman, discussed certain aspects of a protest once with the GAO attorney, which led to our eventual success. From a simple reading of the protest, both GAO and Feldman thought that the protest would probably be sustained until the KO and I provided the true facts. Once Feldman was convinced, he convinced GAO that the protest had no merit. Slam dunk in the end. That was 12-15 years or ago, so I don't remember all the details but Goldman was the GAO staff attorney, if my recollection is correct.

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Have you issue a Notice of Award to the apparent awardee? Sounds like you issued Notifications to Unsuccessful Offerors. Are these preaward notices or postaward notices that were issued?

What are you worried about being protested specifically? The award decision? The fact that ABC may have been in the competition too long and incurred additional costs as a result?

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Boof has a point about possible alternatives but we don't know all the specific facts or circumstances. I would advocate that my attorney discuss with the GAO attorney assigned to the case. So what if the government originally missed the material deficiency ? Did you conduct discussions, receive revised offers then award - i.e, did your overlooking the deficiency prejudice the protestor during the evaluation process?

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You certainly must have an attorney who can answer or research your question! The answer may well depend upon the actual set of circumstances. I suggest that you use the legal resources you have rather than asking for others to perform research without all the facts. We have no idea whether the government treated the protestor differently or otherwise prejudiced them in your scenario.

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Yes, it really depends on what the original protest is about, the odds of it being successful and how this deficiency would affect it once the contractor's attorneys get the rule 4 file. I know my legal and if the procurement wasn't performed well, they make us re-evaluate.

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An agency finds ABC's proposal to be Technically Acceptable. Later, the agency sends ABC a Notice of Award Letter notifying them that ABC is an unsuccessful offeror. ABC files a protest at GAO. After the protest is filed, the agency realizes that ABC's proposal should have been found Technically Unacceptable, because it failed to meet a material solicitation requirement.

To put it in the language of the GAO, the agency would be alleging that ABC is not an interested party to protest. The GAO doesn’t have to give much weight to post-hoc rationalizations, but the agency can certainly make the argument.

Even if the agency is successful in showing ABC is not currently eligible for award, though, that isn’t necessarily the end of the matter as to whether it is an interested party. As noted in the earlier posts, even if ABC is presently ineligible for award, whether ABC is an interested party depends on the corrective action it argues the agency must take, which, in turn, depends on the protest allegation.

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Govt2310 didn't explain whether or not there were discussions. If award was made without discussions and the protestor submitted a non-conforming offer, then there should be no question. If there were discussions and the protestor wasn't considered to be competitive at the time, there may or may not have been a reason to include them in the competitive range. If the protestor was included in discussions, then the government's failure to find and discuss the now known deficiency may or may not have prejudiced the protestor.

Thatz one reason we have legal counsel.

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And if this is a truly hypothetical scenario, the facts still matter and govt2310 should still ask Counsel.

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Simply isn't enough information to give a responsible opinion.

You might read 4 C.F.R. 21.5 for a list of what the GAO won't consider.

There are a some really talented people on WIFCON but they generally only entertain questions that show a certain level of effort by the poster.

Recommend you revise your thoughts and question or simply take what you got here and press on.

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