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Contractor’s Failure to Redact its Proposal was a Fatal Mistake

Posted on January 6th, 2017 by

On January 3, 2017, the Court of Federal Claims denied a bid protest over a contractor’s failure to provide a redacted copy of its proposal.  The solicitation required offerors to redact their names and proposed subcontractors.  The purpose of redacting was to promote an unbiased technical evaluation of proposals.  The contractor argued that its failure to redact was a “minor informality or irregularity” that the Government should have waived.  The Court held that unlike FAR Part 14 sealed bidding procedures, in commercial item and negotiated procurements, the Government has the discretion to waive, or not to waive, minor informalities. See, FAR 52.212-1(g) which states that the agency “may … waive informalities and irregularities in offers received.”  Additionally, the Court found that the failure to redact was not a minor oversight, but “deliberate and designed to give it an advantage (or at least to remove some perceived disadvantage).”

Lesson Learned:  The Government does not have to waive minor informalities if the procurement is not administered under FAR Part 14, Sealed Bidding.  Strictly follow a solicitation’s redaction instructions.

Strategic Business Solutions, Inc. v. United States of America, United States Court of Federal Claims, No. 16-81C (January 3, 2017)

 

Proposal’s Exception to Solicitation Requirements was a Fatal Mistake

Posted on September 1st, 2016 by

In the GAO protest of Kratos Defense & Rocket Support Services, Inc. (August 23, 2016) the GAO sustained a protest where a proposal stated that it assumed the Government would provide on-site work space and equipment, even though during the solicitation process the Government said that such support would not be provided. The GAO noted that, as a matter of law, “a proposal that takes exception to a solicitation’s material terms and conditions should be considered unacceptable and may not form the basis for an award. Material terms of a solicitation are those which affect the price, quantity, quality, or delivery of the goods or services being provided.”

The lesson learned here is never take exception to a solicitation term in your proposal.  This could be a fatal mistake if it pertains to “price, quantity, or delivery of goods or services.”

 

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