On April 25, 2022, the Government Accountability Office (“GAO”) dismissed a protest that Defense Solutions Group, LLC (“DSG”) had filed which challenged the Defense Information Systems Agency’s (“Agency” or “DISA”) decision to exclude DSG’s proposal from the competition. DSG argued that its exclusion from the competition for non-compliance with two administrative solicitation requirements was unreasonable. The Agency countered that dismissal was warranted because unequivocal administrative requirements in the solicitation are requirements nonetheless, and DSG’s proposal did not comply with these requirements. DISA also argued that DSG’s protest was untimely. In dismissing the protest, the GAO declined to opine on the merits, and instead found that the protest was untimely because it contained a challenge to a solicitation term. This dismissal serves as a cautionary reminder to contractors that strict compliance with the GAO timeliness rules is paramount and that challenges to solicitation terms must be raised prior to the date proposals are due.
On June 22, 2021, DISA released a solicitation as a multiple award, indefinite-delivery, indefinite-quantity (“IDIQ”) small-business set aside contemplating a fixed price/cost-reimbursement task order for sustainment support (“Solicitation”). According to the Solicitation, DISA planned to award these task orders on a best-value, trade-off basis considering price and non-price factors. Proposals in response to this Solicitation were due on October 25, 2021.
The Solicitation contained a number of administrative requirements. These included requiring offerors to, among other things: (1) submit the DD Form 254, which is used to convey security requirements when contract performance requires access to classified information, using the original Government-provided form; and (2) include in its Representations and Certifications submission a response to “Additional DITCO Instruction G1, Points of Contact.” Notably, at two places within the Solicitation, DISA informed offerors that if their proposal fails to meet or adhere to any part of the Solicitation’s administrative requirements, it would not be further evaluated or considered for award.
On November 1, 2021, after finding that DSG’s proposal failed to meet both administrative requirements above, DISA notified DSG that its proposal had been excluded from the competition. DSG then requested and received a debriefing, and filed a pre-award bid protest thereafter contending that “DISA’s exclusion of its proposal from the competition for failing to submit the DD Form 254 as a PDF file was improper because this requirement was immaterial and not rationally related to any legitimate agency need.” In response, DISA argued that: (1) the Solicitation unequivocally required compliance with the Solicitation’s administrative requirements; (2) the Solicitation explicitly stated that an offeror’s proposal that fails to comply with any administrative requirements would be excluded from competition; and (3) to the extent that the DSG is contending that certain submission requirements in the Solicitation are not material, and therefore should not provide a basis for rejection of its proposal, DSG’s contention amounts to an untimely pre-award protest and should be dismissed. DISA also noted a number of reasons why it mandated compliance with the administrative requirements at issue.
The GAO’s findings
The GAO did not opine on the materiality of the Solicitation’s administrative requirements, nor the validity of DISA’s rationale for including certain administrative requirements at the outset. The GAO found that DSG’s complaint about the agency’s enforcement of a threshold administrative requirement is, “in essence, an assertion that the solicitation’s requirement was unreasonable…” [and under GAO’s] Bid Protest Regulations, protests based upon alleged improprieties in a solicitation, which are apparent prior to the time set for receipt of initial proposals, must be filed prior to that time. 4 C.F.R. § 21.2(a)(1).” Therefore, the GAO dismissed the protest.
- Assumptions. Federal contractors should not assume the materiality of a solicitation provision.
- Compliance. When submitting a proposal in response to a solicitation, contractors must be sure to comply with all solicitation requirements not withstanding whether they are administrative or substantive in nature.
- Timelines. To the extent that some administrative or substantive requirements are for example, ambiguous, unduly restrictive, or immaterial on the face of the solicitation, offerors should timely challenge these requirements prior to the time set for the receipt of proposals. Failing to do so may prevent the GAO entertaining any requests for relief associated with a protest.