Companies assessing and working to respond to solicitations need to be careful not to fall prey to “aspirational analysis” – finding what they want to find in the stated requirements instead of understanding and accepting what those requirements actually say. Of course, contractors sometimes decide to ignore the solicitation terms and pursue the contract anyway, either confident that they have a good faith basis for proceeding or merely hoping that any problematic requirements will ultimately not come into play. While it is not clear which, one of these dynamics may have been in play in the recent Government Accountability Office (GAO) case of InuTeq, LLC, B-411781 (October 21, 2015), which involved the interpretation of an agency’s requirement for size status representation.
The case involved a National Aeronautics and Space Administration (NASA) small business set-aside procurement conducted among vendors holding General Services Administration federal supply schedule No. 70 (Schedule 70) contracts. In response to its draft request for proposals (RFP), NASA received numerous inquiries from interested vendors, including questions seeking to change the basis of offerors’ small business size representations from the System for Award Management (SAM) to the status under their Schedule 70 contracts. NASA declined to make the requested change, explaining that the included Federal Acquisition Regulation (FAR) § 52.204-8 statement that offerors verify by submission of their offer that their SAM information are current, accurate, and complete as of the date of their offer in this procurement would not be modified and that “The business size will be verified by data found in SAM when the proposal is submitted.”
True to its word, NASA released a final RFP that left the relevant language unchanged. Despite all this, InuTeq submitted an initial proposal that relied on the size certification it had submitted in connection with its GSA schedule 70 contract as the basis for meeting the solicitation’s size requirements. Nine days later, the agency issued an RFP amendment seeking to clarify the RFP’s certification requirements and explicitly requesting that offerors recertify their size status in response to the solicitation. InuTeq responded, claiming that it was eligible as a small business pursuant to its certification under its GSA schedule 70 contract, a position it continued to maintain after NASA subsequent told InuTeq that its approach to size status representation did not meet the solicitation requirements. More particularly, InuTeq responded by asserting that the initial RFP did not require recertification, continuing to argue that the agency was required to accept InuTeq’s size status as of the time it was awarded a GSA schedule 70 contract, and acknowledging that InuTeq could not have recertified its size status at the time initial proposals were submitted.
Before the issue could be resolved under the original procurement, NASA lost a significant portion of the relevant funding and amended the RFP to revise the performance work statement and to seek revised proposals, but only from offerors that had recertified their size status. InuTec then filed its protest, arguing that the original solicitation did not require offerors to certify their size status as of the date task order proposals were initially submitted and, therefore, NASA was precluded from subsequently amending the solicitation to require such certification.
The GAO made short work of this contention, first noting that contracting officers on long-term multiple-award contracts, including GSA schedule contracts, have the discretion to request recertification of offerors’ small business size status in connection with the issuance of task orders. More importantly, the GAO pointed out that the SBA’s Office of Hearings and Appeals (OHA) has recognized that the agency need not use the words “certify” or “recertify” in the solicitation language used to request recertification. Instead, the OHA considers whether the solicitation was “reasonably understood as a request to recertify at the task order level.”
Here, while NASA did not use the words “certify” or “recertify”, the agency did: (i) include the FAR clause requiring offerors to verify that their prior size status certifications were current, accurate, and complete “as of the date of this offer”; (ii) reject the requests that it allow offerors to rely on prior certifications under their respective GSA schedule 70 contracts; and (iii) explain that “business size will be verified by data found in SAM when the proposal is submitted.” Even without magic words, those actions were sufficient for the GAO to conclude that the solicitation was reasonably understood to require recertification at the time initial task order proposals were submitted. Since the record demonstrated that InuTeq did not meet that requirement at the time it submitted its initial task order proposal, the GAO found that InuTec’s proposal failed to comply with a material solicitation requirement and could not be properly considered for award.
During the protest, InuTeq attempted to support its interpretation by noting that it “would not have expended significant personnel and financial resources preparing a proposal if the task order RFP had required a size recertification from the outset”. In this case, however, the problem was not the RFP’s language, but how InuTeq interpreted it. In order to avoid falling into the same trap, contractors must interpret solicitation requirements and agency comments carefully and objectively, without looking for the particular answer they want to find.
Eric Whytsell is responsible for the contents of this Article.
© Jackson Kelly PLLC 2015