In that case, the Agency (the VA) issued a pre-solicitation notice on FBO on July 23, 2014 for home medical equipment services for patients of the Veterans Integrated Service Network 11 medical facilities in Michigan, Indiana, Ohio, and Illinois. A few weeks later, on August 8, the Agency issued an RFQ which contemplated the award of multiple contracts for the requirements identified in the pre-solicitation notice. The RFQ set the deadline for quotes as August 29, 2014. The FBO postings did not identify a specific place of performance as a searchable term - a choice made by the Agency due to the fact that the work spanned several states. However, the notices did include other relevant information which would have resulted in the solicitation being retrievable based on other search terms corresponding to those pieces of information.
On September 9, 2014, the incumbent contractor (whose contract was set to expire on September 30) contacted the Contracting Officer to request the Solicitation Number, as they stated they could not find it on FBO. At the time of that communication (which by the way was the first contact the incumbent made to inquire with the Contracting Officer), the incumbent was not aware that the time for submission of quotes had already passed. The Contracting Officer promptly informed the incumbent that the time for submission of quotes had passed and that late submissions would not be accepted. This protest soon followed.
The protester's primary argument was that the solicitation should have identified a place of performance. In the spirit of full and open competition, a contracting agency must "use reasonable methods to publicize its procurement needs and to timely disseminate solicitation documents to those entitled to receive them." In order to succeed on a protest such as this, which challenges the Agency's dissemination of solicitation documents, the protester must demonstrate that it availed itself of every reasonable opportunity to obtain the solicitation documents.
In denying the protest, the GAO found the following:
- The incumbent could not provide a reasonable explanation for its delay in contacting the Contracting Officer to inquire about the solicitation (i.e., why was the first contact a mere 3 weeks prior to contract expiration)
- The Agency's decision not to include a place of performance did not deprive incumbent of the ability to reasonably find the solicitation, as the solicitation was easily retrievable using a variety of other search terms that should reasonably have been known to the protester, including: NAICS Code (based on the prior contract), the VA network to be served, or other terms such as "home medical equipment"
- When doing a search based on place of performance, the FBO site explicitly cautions that the results returned are based on agency input
Bottom line, the protester/incumbent contractor made a fatal and probably incredibly costly mistake which I think we can all learn from. I suppose they had no choice but to file a protest, but quite honestly, I would be a little embarrassed if I were them and/or their attorney - so here's hoping that: (1) all of our clients/potential clients will at some point have read this blog post; and (2) we never have to file a similar protest.