Protest challenging the agency’s decision to exclude the protester’s expired proposal from the competition is denied, where the protester failed to respond to the agency’s request for an extension of the proposal and where the protester took no action after the original expiration date to inquire about the status of the proposal or the competition in general.
Emagine IT Inc. challenged the National Institutes of Health’s award of a task order for professional business support services to VMD Systems Integrators Inc., arguing the agency unreasonably excluded its proposal from the competition.
After the agency made its initial decision to award the task order to VMD, Emagine and another offeror protested. When the agency decided to take corrective action, it asked all offerors to extend their proposals, which they did. Later, the agency asked the offerors to (1) confirm whether the key personnel stated in their proposals were still available and committed to serve as key personnel; and (2) extend their proposals again. The CO received a “read receipt” showing that Emagine had received and opened the email. Nonetheless, Emagine did not respond.
The agency opened discussions with the other two offerors, requested and received final proposal revisions, and again made award to VMD. When informed that its proposal had not been considered, Emagine attempted to revive its proposal, arguing that it had already informed the agency that it would extend its offer, which the agency should have taken as its clear intent to participate in the competition. This protest followed.
Emagine argued that it was unreasonable for the agency not to consider its proposal because the protester had effectively communicated its intent to remain in the competition when it filed its initial protest challenging the first award decision to VMD, and subsequently granted an extension of its proposal through September 23. Based on these actions, the protester alleged that the agency could not have reasonably inferred that Emagine’s failure to respond to the request to extend the acceptance period of its proposal or to take any action upon the expiration of the proposal on September 23 was indicative of its intent to no longer participate in the competition. Alternatively, Emagine argued that the agency unreasonably declined to revive its proposal, because doing so would not have compromised the integrity of the procurement.
However, GAO disagreed, finding the agency’s actions reasonable. The agency asked Emagine to extend its proposal and it failed to do so, despite indications that it had received and read the request. Emagine also offered no reason why it failed to respond or suggest that it had not received the email. Therefore, GAO found it reasonable for the agency to infer that Emagine did not intend to extend its proposal.
Further, GAO noted the protester knew that its proposal was due to expire on September 23, yet made no effort to contact the agency after that date regarding the status of the procurement or its offer.
GAO also found no obligation for the agency to revive Emagine’s proposal, because the protester failed to take any actions in this regard until informed of the award decision. Because Emagine failed to reply to the government’s request for an extension, and because other offerors would not be given the opportunity to extend their proposal on an equal basis, GAO found that reviving Emagine’s proposal would compromise procurement integrity and only serve to reward Emagine’s lack of reasonable diligence.
Emagine IT Inc. is represented by Thomas K. David, Kenneth D. Brody, and Katherine A. David of David, Brody & Dondershine, LLP. VMD Systems Integrators Inc. is represented by John R. Tolle, and H. Todd Whay of Baker, Cronogue, Tolle & Werfel, LLP. The government is represented by Anthony E. Marrone, and Tony A. Ross, Department of Health and Human Services. GAO attorneys Evan D. Wesser and Peter H. Tran participated in the preparation of the decision.