Government Contracts Monitor
Provide All Information Requested In RFPs – Or Suffer The Consequences
February 18, 2013
Experienced government contractors generally know how to submit timely and complete proposal packages. They also know the consequences for failing to do so. These well known consequences were highlighted in the recent Federal Circuit decision of Orion Technology, Inc. v. United States, No. 2012-5062 (Fed. Cir. Jan. 14, 2013).
The Army’s Mission and Installation Contracting Command issued a solicitation for an IDIQ award task order for services at various Army installations. Orion submitted its proposal on the very last day, but failed to include the required proprietary cost information for five of its subcontractors. Orion attempted to send the missing cost information a week later, but the Army returned the packages unopened. The Army subsequently rejected Orion’s proposal because of the missing subcontractor data.
The Army then issued an amendment to the solicitation notifying offerors in the competitive range that discussions concerning the solicitation were going to be held. The amendment sought new cost/price proposals from qualifying offerors. Orion attempted to resubmit an entire cost/price proposal, but the Army rejected it because Orion had already been rejected.
Orion filed consecutive bid protests with the Contracting Officer and with the Government Accountability Office – all of which were denied. Orion then filed a bid protest with the U.S. Court of Federal Claims (COFC), challenging its dismissal from the competition. The COFC officially dismissed Orion’s claims for a lack of standing and commented that it would have denied the bid protest anyway on the merits even if Orion had standing. Orion appealed.
The Federal Circuit sided with Orion on the threshold procedural question and reinstated Orion’s claims, all of which had been previously dismissed for an alleged lack of standing. The Court held that “Where the Army had discretion to process Orion’s competitive proposal, but chose not to, and where Orion’s original proposal was within the later-established competitive range, we conclude that Orion had a substantial chance of receiving the contract and therefore had standing to challenge the exclusion of its proposal.” Slip Op. at 10. This decision was based, in large part, on the permissive solicitation language which permitted, but did not require, the Army to exclude incomplete proposals and the fact that Orion’s proposal was within the later established competitive range.
While Orion won the battle on “standing,” it ultimately lost the war (and the case). The Federal Circuit succinctly ruled that “Orion failed to submit a complete proposal by the required deadline, Orion’s proposal lacked information material to the Army’s cost realism analysis, and the Army acted rationally when it excluded Orion’s proposal from consideration and returned unopened the late submission of subcontractor data.” Slip Op. at 13-14. In other words, because Orion did not submit a timely or complete proposal, the Army acted rationally when it excluded Orion from consideration.
The moral of this story is to make sure that you submit timely and complete proposals. Otherwise, federal agencies are, in most cases, justified in summarily excluding untimely or incomplete proposals.
Michael J. Schrier is the attorney responsible for the content of this article.