Lewis Roca Blog

The Government Accountability Office (GAO) recently denied a protest brought by a contractor who failed to submit an adequately written proposal for the award of a federal contract. Patriot Defense Group, LLC, B-418720.3, August 5, 2020, 2020 WL 4501318. This decision breaks no new ground legally but it serves as a timely reminder of how failure to identify the assumptions upon which a proposal is based will yield a disappointing result.

Request for Proposals
The U.S. Special Operations Command issued a request for proposals for multiple indefinite delivery/indefinite quantity (IDIQ) contracts to provide a variety of professional, technical, management, and administrative services. The RFP recited that an award would be made to all “qualifying offerors,” defined as offerors that received a pass rating for administrative and responsibility matters, an acceptable rating for an IDIQ evaluation factor, and a substantial confidence rating for past performance.

Among other things, offerors were required to submit a minimum of three past performance information sheets for contracts which were relevant to each offeror’s ability to perform the work described in the RFP. Prior contracts were to be assigned past performance relevancy ratings. The RFP warned offerors that they were required to include a rationale supporting the assertion of relevance. They were also to describe in detail how the company’s past performance on each contract applies to the “relevancy criteria” identified in the RFP.

Proposal at Issue
The agency received 86 proposals, one of which was from Patriot Defense Group. Patriot’s proposal included three past performance references, two references for itself, and the third for a proposed subcontractor. The proposal self-assessed each of its three past performance references as “very relevant.” The Source Selection Evaluation Board (SSEB) found, however, that it could not substantiate Patriot’s self-assessment and therefore rated the references less favorably than had Patriot. Based on the assessed relevancy and quality of Patriot’s past performance, the SSEB evaluated its past performance as warranting a limited confidence assessment overall. The agency concurred with this finding and did not include Patriot among the offerors deemed eligible for award. Patriot protested to the GAO.

GAO Standard of Review
The GAO reviewed Patriot’s protest in light of its well established standard for challenges to the evaluation of an offeror’s proposal. Their role is not to reevaluate proposals; rather the GAO examines the record to determine whether the agency’s judgment was reasonable, and in accordance with solicitation criteria and applicable procurement statutes and regulations. In a negotiated procurement, it is an offeror’s responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation and allows a meaningful review by the procuring agency.

GAO Finds Proposal Inadequately Written
Following an analysis of the record, the GAO determined that Patriot’s proposal failed to include sufficient information to support its self-assessments concerning the relevancy of its past performance. In particular, the GAO observed that Patriot’s self-ratings of its references did not identify the actual number of contracted personnel for these references. This is despite the fact that the RFP instructed offerors to provide sufficient substantiation in their proposals. Information regarding past performance was to include a rationale supporting the assertion of relevance.

Patriot argued that certain excerpts from the proposal were sufficient for the agency to ascertain the number of contracted personnel for each reference. Although the protestor conceded that it did not include a figure for the number of contracted personnel, it nevertheless maintained that the agency should have gathered together scattered citations to various categories of personnel working on these contracts and calculated that they amounted to at least 24 personnel being assigned to each task order.

The GAO disagreed with Patriot’s characterization of the agency’s duty to review its proposal, finding the argument advanced by Patriot was not consistent with either the RFP’s specific requirements for offerors to include supporting rationale and descriptions nor the GAO’s line of decisions affirming an offeror’s responsibility to prepare an adequately written proposal. According to the GAO, even if it was to impose on the agency the burden of deciphering the contents of the proposal, it found no basis to conclude the agency could have deduced the number of contracted personnel involved in Patriot’s prior efforts. The GAO then demonstrated the lack of substantiation in the proposal by posing a series of unanswered questions about the personnel assigned by Patriot to its past performance references.

Patriot further argued that its protest filings more clearly articulated the relevancy of its past performance. This additional information was of no help to the protestor. The GAO noted that its review is limited to the proposal as submitted. Agencies are not responsible for evaluating information that is not included in a proposal. The inclusion of clarifying information in a protest provides no basis for second guessing the agency’s contemporaneous evaluation of a proposal as submitted.

The GAO concluded there was no rationale for questioning the reasonableness of the agency’s evaluation of Patriot’s proposal. The protest was denied.

Lessons to be Learned
What is unfortunate about the proposal submitted by Patriot is that it represents a wasted opportunity. The disappointed offeror may have been fully qualified to meet the agency’s needs, but the contractor did not include the detail necessary to adequately communicate the proposal’s value to the government. Successful proposals reflect a comprehensive understanding of the information called for in a solicitation. All too often, proposals fail to disclose the factual assumptions upon which they are based. Contractors may be too close to the work to notice these buried assumptions. Such proposals can benefit from a review by an objective third party prior to submission.