Government Contracts Monitor

44 Minutes Is Not Much Response Time, But It Can Be Enough

April 19, 2018

One of the first things offerors look for upon receipt of a new solicitation is the response due date. Given the critical importance of timing to the proposal preparation process, offerors are naturally disappointed when the amount of time allowed is shorter than they think necessary. In cases where an offeror believes the response time is so short that it robs them of the opportunity to meaningfully compete, a protest often ensues. But as the recent Government Accountability Office (GAO) decision in AeroSage, LLC, B-415893; B-415894 (April 17, 2018) makes clear, the success of such protests depends on the specific nature of the procurement in question and, depending on the facts, even very short response times can be reasonable and appropriate.

The protest involved an procurement of diesel heating oil by the Department of Veterans Affairs (VA) ahead of the “Bomb Cyclone” expected to hit the mid-Atlantic region in January of 2018. The VA deemed the requirement for heating oil for the VA Medical Center (VAMC) in East Orange, New Jersey to be emergency in nature because: (i) the local electric and gas utility had mandated that the VAMC avoid use of natural gas to heat the building due to high demand for natural gas during the storm; and (ii) the local utility would charge at least four times the normal natural gas rate if the VAMC ran out of diesel fuel and resorted back to natural gas.

Upon being informed of the requirement on January 4, 2018, the VA contracting officer (CO) acted quickly, first conducting market research to determine whether service-disabled veteran- owned (SDVOSB) small businesses could fulfill the requirement. At 12:55 p.n., the CO sent an e-mail to the 26 SDVOSBs identified describing the requirement in more detail and seeking sources. AeroSage responded at 2:18 p.m. by sending an email to the CO quoting a price for delivery of 50,000 gallons of diesel heating fuel for delivery by January 6th. Five minutes later, the CO emailed the 26 SDVOSB firms stating that “it is essential the Government receive[s] a response to the emergency request [ ] between 2:30pm and 3:00pm as a determination must be made how we will procure the required fuel. . . .”

That afternoon, the VA assessed whether the diesel heating fuel requirement could be placed under a long-term contract for fuel for the VAMC that was awarded in December 2017 by the Defense Logistics Agency (DLA), which handles fuel acquisition for the Department of Defense and the civilian agencies. Ultimately, the VA concluded that, while the requirement could not be placed under the long-term contract, DLA could place the order as a one-time spot purchase. In response to the VA’s request, DLA agreed to issue a solicitation and award the contract.

The next morning at 8:46 a.m., the DLA contracting officer sent a request for quotations (RFQ) via email to four SDVOSB firms, including Aerosage. The RFQ, which sought quotations to provide 50,000 gallons of diesel heating fuel to the VAMC on January 6, RFQ required quotations to be submitted by no later than 9:30 a.m. the same day -- only 44 minutes after DLA issued the RFQ. While the other three firms responded to the RFQ by the 9:30 a.m. closing time, AeroSage did not. After deciding to award the contract to the offeror with the lowest priced quotation, the DLA notified the three firms that had submitted quotations of the award at 9:46 a.m.

AeroSage apparently did not see the email transmitting the RFQ until 10:50 a.m. because the firm representative was “attending to other duties of a small business concern, [and] had trouble connecting to my e-mail.” At 10:57 a.m., however, AeroSage sent an email to the DLA contracting officer and asked for an opportunity to submit a quotation, only to learn that the award had already been made.

This protest followed. Among other protest grounds, AeroSage challenged the short response time for the RFQ issued by the DLA. More particularly, AeroSage argued that the DLA solicitation did not provide vendors a reasonable amount of time to respond. It also contended that, had it been able to submit a quotation, it would have quoted a price lower than the awardee’s.

The GAO concluded that, given the specific facts of this procurement, AeroSage’s argument did not provide a basis to sustain the protest. While noting that FAR § 5.203(b) requires contracting officers to establish solicitation response times that will afford potential offerors a reasonable opportunity to respond, the GAO explained that what constitutes a reasonable opportunity to respond will depend on “the circumstances of the individual acquisition, such as the complexity, commerciality, availability, and urgency.” For this reason, a protester contending that insufficient time was allowed for preparation of proposals must make a showing that the time allowed was inconsistent with statutory requirements or otherwise unreasonable, or that it precluded full and open competition. And the GAO will not disturb a contracting officer’s decision in this regard unless it is shown to be unreasonable or the result of a deliberate attempt to exclude the protester from the competition.

In this case, the GAO concluded that the 44-minute response time for submission of quotations was not unreasonable based on a number of facts. First, the VA had an emergency need for heating oil at the VAMC. In addition, as required by statute, the VA conducted market research to identify SDVOSB firms capable of performing the work. Later the same day, the VA concluded that it would meet its requirements through a spot purchase made by the DLA. The next morning, DLA concluded that it would allow only a 44-minute response time because, in the agency’s judgment, “we would need time to work with [the] winning vendor and allow the vendor sufficient time to coordinate the delivery information with the VA medical center and then relay that information to its delivery team,” and also “so that in the event that any issues arose in coordinating or performing the delivery (e.g., equipment breakdown, impassable roads, etc.), we would have sufficient time to effect any last minute changes.” Furthermore, while AeroSage argued that it was not able to respond because it did not see the email in time, the GAO found that the correspondence with the VA gave AeroSage ample reason to expect further correspondence regarding the VA’s heating oil requirement -- and the DLA specifically emailed the RFQ to AeroSage. Finally, the RFQ required only that vendors respond via email with a price quotation, as opposed to a detailed quotation or proposal, and quotations were received from three vendors.

While the GAO found no basis to conclude that the RFQ’s response time violated FAR § 5.203(b), it expressly recognized that a 44-minute response time is very brief and made clear that its decision in this case is limited to the facts of this case and does not establish that a 44-minute response time is necessarily reasonable in other circumstances.

Nevertheless, this decision demonstrates the importance of looking beyond the response time itself and “connecting the dots” between the factual context and how it defines what response time is reasonable. If you can’t show the time allowed violates statutory requirements, precludes full and open competition, or is otherwise unreasonable, you won’t win this kind of protest.

Attorneys

Lindsay Simmons