Ineligible Offeror Can Challenge Acceptability of Winning Proposal if
Ineligible Offeror Can Challenge Acceptability of Winning Proposal if
Only One Proposal Was Found Technically Acceptable In a post-award context, only a protester with a reasonable possibility to be next in line for award (if the protest were sustained) is generally found by the GAO to be an interested party to challenge an agency’s evaluation of proposals.
However, a protestor that is ineligible for award (in this case, because it lacked an active SAM registration at the time of award), can still be an interested party to raise issues that pertain to the acceptability of the awardee’s proposal, where that proposal was the only proposal found to be technically acceptable, according to the GAO.
In this case, since the awardee was the only proposal that was deemed technically acceptable by the agency, the GAO found that the protester, despite its ineligibility, was still an interested party since (if the protest was sustained) the agency could have to resolicit the requirement.
With respect to the merits, the GAO upheld the protest. The GAO agreed with the protester that the awardee’s proposal failed to comply with the terms of the solicitation. Specifically, the awardee did not offer commercial space (for lease by the agency) that was within the required proximity to a bus rapid transit stop.
Although “bus rapid transit stop” was not defined in the solicitation, the GAO found that it was unreasonable for the agency to not use the definition that is used by the GSA in similar contexts.
The GAO also rejected the agency’s contention that it should not be bound by such definition because, in addition to the solicitation not adopting such definition or otherwise defining the term, the GSA’s definition was overly restrictive, to the point where it was impossible to comply with the terms of the solicitation if that was the controlling definition (there was not bus rapid transit stop in the relevant area).
Although not explicitly stated, the GAO’s reasoning seems to suggest that, if a solicitation includes a requirement that is impossible to meet, it is unreasonable for the agency to adopt a more flexible (and, in this case, realistic) definition, even if a key term with respect to the requirement is not defined in the solicitation.
In this situation, it seems that the only alternative was to deem all proposals as technically unacceptable. It is worth mentioning that the GAO also raised the possibility that the agency was inconsistent in how it defined rapid bus transit stop when it evaluated the proposals.
Another interesting point in this decision is that, by the time it was reached, the agency had already executed a contract with the awardee, and such contract did not include a termination for convenience clause.
As a result, the GAO did not recommend terminating the contract (as would ordinarily be the case if the contract included such clause) and, instead, merely recommended that the protester be reimbursed for its proposal preparation costs, as well as the costs of filing and pursuing the protest, including reasonable attorneys’ fees.