#GovConThoughts: GAO Protest Decision Highlights Interplay Between Q&As and Solicitation Terms

[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]

A recent U.S. Government Accountability Office ("GAO") bid protest decision is interesting because it highlights the interplay between the questions and answers ("Q&A") process, which is commonplace in government contracting, and the terms of a solicitation.

Briefly, the protest of ATP Gov, LLC, B-422938, B-422938.2, Dec 12, 2024, 2024 CPD ¶ __ involved a procurement for portable satellite terminals and related services. Under the fair opportunity proposal request ("FOPR" or "RFP"), the terminals had to meet certain technical requirements and, pursuant to the Q&As, had to be "WGS-certified" at the time of proposal submission. Following the agency's award to another firm, the protester filed a protest stating that the awardee did not comply with the terms of the RFP and was therefore ineligible.

Specifically, the protester argued that while the awardee proposed a WGS-certified base terminal, its terminal needed to be modified to meet an RFP requirement for "auto tracking" functionality. This rendered the firm ineligible, according to the protester, because the WGS certification process guidance stated, in various ways, that deviations were not authorized and that modifications require recertification. Further, the protester relied on the following Q&A to which the agency answered "Yes": “[d]oes the terminal need to [be] WGS certified at time of proposal submission?”

In response, the agency argued that (1) the RFP was silent on when the "terminal assembly" must be WGS-certified and it only made sense to impose the requirement in relation to first integration testing, (2) the Q&A did not alter the RFP's requirements regarding WGS certification, and (3) if the Q&A had any bearing, only the base "terminal" needed to be WGS-certified at the time of proposal submission, which was a requirement the awardee met.

GAO agreed with the protester and sustained the protest. In so doing, GAO reiterated that "where, as here, an agency publishes [Q&As] to all offerors alongside amendments to the solicitation, our decisions have been unequivocal that such [Q&As] amount to amendments to the solicitation and form part of the solicitation's requirements." GAO also relied on its rule providing that "[c]learly stated RFP requirements are considered material to the needs of the government, and a proposal that fails to conform to material terms is unacceptable and may not form the basis for award."

Under this rubric, GAO had no trouble swatting down the agency's arguments. GAO found the Q&A was part of the RFP and, among other things, was not persuaded by the agency's position on the "terminal" versus "terminal assembly" distinction. That is, even though the Q&A only mentioned "terminal" (not "assembly"), the text of the Q&A in relation to a referenced RFP section meant that it would be irrational to conclude that only the base terminal needed to be WGS-certified, particularly where the WGS certification applied to the "entire configuration." In sum, because the firm's entire terminal assembly was not WGS-certified at the time of proposal submission, GAO found that the awardee did not meet the RFP requirements.

Takeaway

This protest provides a timely reminder on the Q&A process and demonstrates how it impacts not only a contractor's proposal submission but also an agency's evaluation. While a solicitation may be silent on an issue, where that issue is addressed during the Q&A process, GAO will treat the text of the questions and the agency's answers as part of the solicitation.

. . .

#govcon