GAO: Section 508 Compliance Issue Sinks Proposal––Confirming Compliance Isn't Demonstrating Your
Federal government contracting is a challenging marketplace. From business development to capture, the process is laborious, costly, and oftentimes complex. When a contractor decides to bid on a government contract opportunity, the path narrows, as contractors not only must submit a superior proposal (technical, past performance, and cost) but also must ensure that it complies with all of the stated solicitation requirements along the way.
But what happens when a contractor commits to complying with a solicitation requirement instead of demonstrating their capacity or ability to comply? Well, that is what happened in Harmonia Holdings Group, LLC, B-418290.3; B-418290.4, Feb. 27, 2020, 2020 CPD ¶ ___, where GAO held that the protester's confirmation to adhere to Section 508 compliance requirements was insufficient in light of the solicitation's direction that offerors demonstrate their capability to comply.
By way of background, Section 508 of the Rehabilitation Act of 1973 requires that Federal agencies make their websites and information technology accessible to people with disabilities. So, what happened?
In Harmonia, the agency (GSA) issued an RFQ in order to establish multiple BPAs for IT services in support of the HUD Office of the Chief Information Officer. The RFQ was issued pursuant to FAR subpart 8.4 to contractors holding GSA IT Schedule 70 FSS contracts, with each BPA having a 1-year base and four 1-year option periods. The estimated value of the BPAs is over $327 million.
Relevant here, the solicitation provided that "all EIT products and services provided under the BPA shall comply with all applicable Section 508 statutory and regulatory requirements." In addition, offerors were instructed to "include a statement indicating its capability to comply with Section 508 requirements throughout its performance of this acquisition in accordance with [PWS] Section 7.6."
The agency also advised offerors that it would evaluate quotes to "determine whether it include[d] a statement indicating its capability to comply with Section 508 requirements throughout its performance,” including that the failure to demonstrate your capability to comply would result in the quote's elimination from further consideration for award.
With respect to Section 508, the protester provided the following language in its proposal:
Harmonia is committed to building and assessing EIT products that are accessible to people with disabilities who are protected under the Section 508 Law of the Rehabilitation Act of 1973, as amended in 2017 (WCAG 2.0 Guidelines) and per the per the [sic] 1998 Amendments, 29 U.S.C. § 794d, and the Architectural and Transportation Barriers Compliance Board’s EIT Accessibility Standards at 36 Code of Federal Regulations (CFR) 1194. Harmonia’s policies on Section 508 compliance are based on the information provided by the GSA at www.section 508.gov as per GSA Section 508 governance standards.
Unfortunately, the agency determined that the protester did not comply with the solicitation's requirement that offerors demonstrate their "capability to comply" with Section 508, thereby rendering its proposal technically unacceptable. As GAO points out, the crux of the protest lies in the solicitation's language regarding an offeror's "capability to comply" with Section 508 requirements.
The protester argued that the Section 508 requirements "merely request[ed] a vendor’s confirmation of its willingness to comply." In other words, the protester argued that its commitment to meeting the requirements and its reference to maintaining related policies satisfied the solicitation's requirement that offerors demonstrate a "capability to comply" with the Section 508 requirements.
The agency argued, on the other hand, that the protester’s narrow interpretation is unreasonable because it not only would read out the concept of demonstrating a vendor’s “capability” of complying with Section 508 requirements but also would have required an offeror to simply confirm that it was not taking exception to the Section 508 requirements. In support of this reasoning, the agency also argued that "the common understanding of the concept of capability generally refers to the ability, knowledge, experience, or wherewithal to do or accomplish something."
Ultimately, GAO agreed with the agency's interpretation as requiring offerors to demonstrate their "capability to comply" with the Section 508 requirements. Because it agreed with the agency's interpretation that offerors demonstrate their "capability to comply" as the only reasonable interpretation of the solicitation, GAO concluded that "Harmonia’s mere confirmation of its commitment to comply and brief reference to corporate policies is facially deficient."
In denying the protest for failing to adhere to the requirement that offerors demonstrate their "capability to comply" with the Section 508 requirements, GAO also reiterated its longstanding rule that it is the offeror’s obligation to submit an adequately-written proposal or quotation for the agency to evaluate, and a proposal or quotation that merely parrots back the solicitation requirements may reasonably be downgraded for lacking sufficient detail. [1]
Takeaway
This protest is an instructive reminder to all government contractors, and particularly those working in the information technology space, of the importance of complying with all solicitation requirements. To that end, complying with solicitation requirements can boil down to the agency's choice of words. So ask yourself: what does the agency want?
As shown above, where the agency wants you to demonstrate your "capability to comply" with a requirement, merely indicating that you will commit to comply may likely be insufficient. While Section 508 compliance, or other compliance provisions, could easily be glossed over during proposal review, contractors should heed this warning and pay close attention to the solicitation. Words matter.
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[1] Tyonek Worldwide Servs., Inc.; DigiFlight, Inc., B-409326 et al., Mar. 11, 2014, 2014 CPD ¶ 97 at 9 (denying protest challenging an assessed deficiency where the proposal effectively parroted the requirements of the PWS with a statement of intent to perform that did not reflect an ability or capability to perform).
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