Posted August 2014
In Matter of AeroSage LLC, AeroSage, LLC “AeroSage” protested the Department of Justice’s Bureau of Prisons (“DOJ”) award to another bidder, under a request for quotations (RFQ) for next day delivery of 6,000 gallons of unleaded fuel for the Federal Prison in Florida. Protester argued that it was improperly denied the award. The protest was sustained.
The RFQ was posted on the FedBid website on March 11, 2014. Bids closed on the following day (March 12). The RFQ requested an immediate turnaround for fuel delivery on March 13. AeroSage submitted a bid. Shortly after the bids closed, AeroSage received the e-mail “Bid Validation request” that directed them to confirm by that day that it could deliver fuel by 9 a.m. on March 13. AeroSage confirmed.
The caveat: before the bids closed on March 12, the Contracting Officer (“CO”) made two calls to AeroSage. The first call was at 1:45 p.m. The second call requested that Aersosage call back before 2:30 p.m. to confirm delivery and accept the offer. Since AeroSage did not return his call before 2:30, the CO determined that to be a rejection of the Government’s offer and award was made to the next lowest priced and technically acceptable vendor.
AeroSage argued that the agency acted improperly when it imposed a shorter requirement on their response time after the solicitation closed and that they timely responded to the FedBid Bid Validation request. The agency contended that AeroSage provided a quotation not a bid and therefore that did not constitute a submission for acceptance by the government and does not constitute an offer.
The GAO took the protester’s position and held that the agency unreasonably imposed an additional requirement on this procurement after the solicitation closed. The Validation request expressly sought a confirmation from AeroSage that the delivery required by the solicitation would take place by 9 a.m. on March 13. AeroSage affirmed that they would meet that immediate turnaround time within the timeframe established. The CO imposed a second requirement, an overlay to the actions underway by FedBid by seeking to complete steps of offer and acceptance via voicemail during the course of 45 minutes. This additional requirement was unstated in the RFQ and was inconsistent with the instructions set forth in the FedBid’s issued Bid Validation request. Therefore, it gave AeroSage no reason to expect that there would be a later-sent voicemail message from the CO imposing a different requirement with a shorter response time.
The takeaway point from this protest is that a fundamental premise of government procurements is that offerors must be advised of the bases upon which their proposals will be evaluated. A CO cannot impose additional requirements outside of the RFQ. So, know the in’s and out’s of the RFQ you are submitting a responding bid to.