By: Paul Emanuelli
This article is an excerpt from the 2021 edition of The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its November 2019 decision in High Noon Unlimited, Inc., the U.S. Government Accountability Office (GAO) struck down a contract award after finding that the government awarded the contract to a bidder whose product failed to comply with the required specifications. The dispute dealt with a Request for Proposals (RFP) for rifle magazine pouches. While the RFP specified a maximum weight for the required product, the contract was awarded to a supplier whose proposed product exceeded those weight restrictions. A competing supplier challenged that contract award:
Protest Issues
Turning to the merits of the protest, as noted, High Noon raises two arguments concerning the technical acceptability of the High Speed product. First High Noon argues that High Speed’s product does not meet the solicitation’s weight requirement. Second, High Noon argues that the High Speed product cannot be removed from the PALS without using a tool, and also that the clips required for use of the High Speed product render it potentially unacceptable in a real-world environment. We note at the outset that an agency may not properly award a contract based on a proposal that fails to meet one or more of a solicitation’s material requirements. Contrack International, Inc., B-408945, B-408945.2, Dec. 27, 2013, 2013 CPD ¶ 300 at 4-5. Here, we conclude that the record shows that the agency erred in finding that the High Speed product met all of the solicitation’s requirements. We therefore sustain High Noon’s protest.
Weight
The RFP required the offered product to have a threshold weight of no more than 0.24 pounds to be acceptable, and also specified an objective weight of 0.20 pounds or less. Performance Work Statement (PWS) at 2. The RFP provided as follows with respect to evaluation of the offered product’s weight:
Offerors shall propose a claimed weight in the written proposal. The Government will verify the claimed weight using a tared scale with the weight rounded to the nearest one-hundredth. The Government will weigh three of the provided source selection samples and use the average to verify the weight meets or exceeds the threshold weight requirement in the solicitation.
RFP amend. No.0005 at 7. There is no dispute in the record that the agency weighed the High Speed product (as well as, apparently, other proposed products) without including the clips that would be essential to attach the High Speed product to the PALS. AR, exh. 10, E-Mail from Contracting Officer to Agency Counsel. Based on that action, the agency concluded that the High Speed product complied with the RFP’s weight requirement because it weighed less than the threshold weight of 0.24 pounds.
The GAO upheld the challenge after determining that the award to a non-compliant product did not withstand logical scrutiny:
The agency has offered no explanation for why it weighed the High Speed product without the clips. The clips apparently are an essential component of the overall product, since they are necessary to attach the High Speed product to the PALS. AR, exh. 10, E-Mail from the Contracting Officer to Agency Counsel. Inasmuch as the RFP required the offered product to weigh an amount equal to or less than the threshold weight of 0.24 pounds, the agency’s actions in weighing what essentially amounts to only a part of the High Speed product do not withstand logical scrutiny.
The GAO ordered a re-evaluation.
As this case illustrates, when evaluation rules clearly state that the evaluators will verify the technical compliance of a product with the prescribed specifications, evaluators cannot bypass that technical verification and proceed to award a contract to a supplier that may be proposing a non-compliant product. In those situations, evaluators should verify technical compliance prior to award or risk exposing their award to successful legal challenges.
