The "Close at Hand" Rule Applies to Past Performance, but Not Technical Matters
September 19, 2018
By: Lindsay Simmons
Sometimes, offerors leave important information out of their proposals in the mistaken belief that agency evaluators already know—and will take into account--the facts in question. In other cases, disappointed bidders who think their ratings are too low rely on similar thinking and argue point to the agency’s supposed knowledge and argue that it improperly failed to take that information into account. As the recent Government Accountability Office (GAO) decision in Earth Resources Technology Inc., B-416415; B-416415.2 (August 31, 2018) makes clear, however, that argument has limited utility.
The protest related to the issuance of a task order by the Department of Commerce, National Oceanic and Atmospheric Administration (NOAA) for services in support of the agency’s acquisition and management of environmental satellites. After learning that NOAA had awarded the contract to Global Science & Technology, Inc. (GST), Earth Resources Technology Inc. (ERT) protested. Among other things, ERT asserted that the agency unreasonably assigned a weakness to its proposal concerning ERT’s proposed key personnel based on undisclosed evaluation criteria. In the alternative, ERT claimed that the agency failed to consider information known to government personnel about the qualifications of ERT’s proposed personnel.
In its evaluation of ERT’s proposal, the agency assigned a weakness for the technical capability evaluation factor because its proposed key resumes “do not demonstrate the ability to perform SOW requirements of leadership as described in [the RFP].” The agency also found that the resumes “indicate no communication skills with respect to oral/written briefings (including but not limited to technical presentations at annual meetings).” Similarly, for the staffing and management plan evaluation factor, the agency assigned a weakness in part because the protester did not adequately explain how the resumes for proposed key personnel demonstrated technical leadership. According to ERT, leadership and communications skills were undisclosed evaluation criteria not identified in the RFP.
The GAO found otherwise. But ERT still had its alternative argument: even if the RFP provided for the evaluation of leadership and communications skills, NOAA unreasonably failed to consider information it knew regarding the skills of the protester’s proposed personnel. For example, ERT pointed out that certain ERT personnel made presentations at conferences and workshops that were attended by NOAA personnel, and asserted that the agency was therefore on notice of these individuals’ leadership and communications skills. In support of its argument,
ERT cited GAO decisions explaining that certain types of information are “too close at hand” for agencies to ignore in their evaluation of an offeror’s or vendor’s proposals or quotations.
The GAO noted that ERT was right with respect to certain limited circumstances, where an agency has an obligation (as opposed to the discretion) to consider “outside information” bearing on a vendor’s or offeror’s past performance when it is “too close at hand” to require the vendors or offerors to shoulder the inequities that spring from an agency’s failure to obtain and consider the information. Unfortunately for ERT, however, GAO has not applied the “too close at hand” principle in situations like this protest, where the information relates to technical requirements of a solicitation, rather than past performance information. In this context, a vendor’s or offeror’s technical evaluation is dependent on the information they provide in the proposal, not the agency’s failure to consider its own information regarding the assessment.
Because the information ERT contends should have been considered relates not to past performance but instead to the qualifications of its proposed key personnel, which were supposed to have been addressed in offerors’ proposals, GAO concluded that the “too close at hand” principle does not apply here. Thus, there was no basis to sustain the protest on this ground.
The next time you consider relying on the “too close to hand” principle, make sure the information in question relates to past performance. Otherwise, you’re likely to be disappointed by the GAO.
© 2018 Jackson Kelly PLLC