by Sarah Schauerte
When it comes to protests involving timeliness, these are usually losing battles for the protestors. Late is late, goes the old adage, and unless the situation is entirely beyond the offeror’s control, like weather issues or government closure, protestors should save their time and attorney’s fees.
One exception, however, came into play in a recent Government Accountability Office (“GAO”) protest. There, a protest was sustained when an offeror timely responded to a FedBid “Bid Valuation” request for fuel quotations, but did not timely respond to the contracting officer’s concurrent shorter-deadline, telephonic request for confirmation. AeroSage, LLC, B-409627 (July 2, 2014).
AeroSage had submitted a quotation which prompted a “Bid Validation” request, which directed AeroSage to confirm, by 5:00 p.m. that day, that it could deliver the fuel by March 13, at 9:00 a.m. At 4:36 p.m., AeroSage replied affirmatively to the Validation request via email.
During the time after the FedBid Validation request was sent, but before the response was due, the contracting officer (“CO”) determined that it was appropriate to contact AeroSage, make an offer, and request acceptance prior to delivery. The CO made two telephone calls to AeroSage’s office, at 12:44 p.m. and at approximately 1:45 p.m. In the second call, the CO directed AeroSage to call back by 2:30 p.m., i.e., within 45 minutes, to confirm delivery and accept the offer. When AeroSage did not return his call, the CO deemed this “a rejection of the Government’s offer” and decided to award to the next lowest-priced, technically acceptable vendor.
The GAO held that the agency’s actions were analogous to a decision to accelerate the closing time for final revised proposals on the proposal due date. This additional requirement for telephonic confirmation was not only unstated in the RFQ, but was inconsistent with the instructions set forth in FedBid’s previously-issued Bid Validation request.
In short, the GAO found that the agency’s actions violated a fundamental premise of government procurements: that offerors must be advised of the bases upon which their proposals will be evaluated. Citing H.J. Group Ventures, Inc., B-246139, Feb. 19, 1992, 92-1 CPD ¶ 203 at 4. Specifically, it was unreasonable for the CO to provide AeroSage approximately 45 minutes to respond to a voicemail while providing no notice that this might be required. AeroSpace had not only timely replied to the Bid Validation request, but there was nothing in the record to suggest that it would not deliver as promised. The GAO concluded by saying that it found that the CO had improperly imposed an additional unstated requirement.
AeroSage was awarded its costs and fees in the appeal. However, the work it had bid on had already been fully performed by the awardee. This means that for all intents and purposes, all AeroSage got out of this protest was a free piece of paper validating its position. This raises the question – is making a point worth the trouble of a protest?
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Protesting to make a point/based on principle is indeed a waste of money and time.
Case: We protested an award made to a SDVOSB who was “verified” as such by CVE. We were not the next low bidder but felt and could prove that the winner of the bid was affiliated with a much larger company (rent a vet) and therefore should not get the award. Our protest was upheld by the SBA since it was a affiliation protest. We submitted the protest to make a point. The CO was upset since it delayed the project and simply cancelled the solicitation. If it ever was re-solicited it was never known.
Waste of time and money.