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Oles Morrison

When an Improperly Submitted Proposal is Still Acceptable

By on November 18, 2015 | Posted in Bid Protests

6600657455_976503bae2_zThe deadline for the submission of proposals in response to a RFP is looming.  The proposal team is frantically using the last moments before the submission deadline to ensure that every component of their proposal is perfect.  Inevitably, nothing becomes more important than ensuring that the proposal is correctly submitted to the Agency.  But what happens when you submit your proposal the Agency through the wrong web-portal?

The scenario described is enough to give any federal contractor nightmares.  In a recent Government Accountability Office (the “GAO”) bid protest decision, however, the GAO determined that the Agency improperly rejected a proposal because the offeror mistakenly submitted the proposal through the incorrect web portal.

In AECOM Technical Services, Inc., B-411862, the Agency utilized a web portal for the submission of proposals, FedConnect.  Importantly, FedConnect contained two separate communication features for prospective offerors: (1) the Message Center, available for offeror’s to submit questions concerning the RFP; and (2) the Response Center, designated in the RFP as the method to submit proposals.  Although submitted a day early, AECOM mistakenly submitted its proposal through the Message Center, rather than the Response Center.  Immediately recognizing this mistake, the contracting specialist attempted to communicate with AECOM through the FedConnect Message Center.  AECOM, however, did not receive the communication from the contracting specialist before the RFP’s deadline for the receipt of proposals.  Subsequently, the Agency informed AECOM that its proposal was rejected because it was not submitted properly through the FedConnect’s Response Center feature.

AECOM filed a bid protest at the GAO challenging the Agency’s decision to reject its proposal.  While underscoring the fundamental principle that a RFP may impose reasonable submission instructions, and that deviations from those instructions may result in the rejection of the proposal, GAO explained that not all deviations are created equally:

Bids and proposals that deviate from solicitation requirements . . . need not be rejected in every instance.  When the deviation involves a matter of form rather than of substance, or when the government’s needs will be satisfied by acceptance of a deviating offer and other offerors would not be unfairly prejudiced by the acceptance, such an offer can be accepted.

In this case, GAO explained that the following three factors weighed in favor of its conclusion that the Agency’s decision to reject AECOM’s proposal was unreasonable:

  • First, GAO found that there was no question that the Agency was in possession of AECOM’s complete proposal before the RFP’s deadline for the receipt of proposals, as evidenced by the contracting specialist’s communication to AECOM through the FedConnect Message Center;
  • Second, GAO concluded that, after AECOM submitted its proposal through FedConnect, it was no longer able alter or revise the proposal; and
  • Third, GAO reasoned that the Agency had actual knowledge of having received AECOM’s proposal prior to the RFP’s deadline for the receipt of proposals.

While this case illustrates a protester’s successful challenge to an Agency’s rejection of a proposal mistakenly submitted through a wrong web portal, these circumstances are a much closer call than any offeror would like to experience.  Therefore, this case serves a useful reminder to contractors bidding on federal contracts opportunities to ensure that all i’s are dotted, and all t’s crossed — including the actual submission of the proposal.

Image Courtesy of Flickr (licensed) by Mikkel Rønne