Although Majority of Proposal Was Submitted on Time, Agency Reasonably Rejected Proposal as Late; TriStar Aerospace LLC, GAO B-419093

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Protest challenging the rejection of a proposal as late is denied. The protester submitted a timely copy of one portion of the proposal, but its subcontractor submitted another portion late. The agency rejected the entire proposal as late. The protester contended that the agency could have obtained the missing potions through discussions. But the solicitation did not require the agency to conduct discussions. The protester argued that the agency could have evaluated its proposal without the subcontractor portion. The agency, however, had tried this and found that it could not evaluate because the subcontractor’s potion contained material information. The protester asserted that subcontractor’s late filing was a minor informality that the agency could have waived. GAO found that an agency can only waive an informality in a proposal that was received on time.

The Navy issued a solicitation seeking air-to-air refueling services. The solicitation provided that proposals were due at 11:00 a.m. Eastern Time on July 30, 2020. Proposals had to be submitted electronically through DoD’s Secure Access File Exchange site.

TriStar Aerospace LLC submitted proposal documents through the DoD site at 9:00 a.m. on July 30. TriStar’s proposed contractor, however, submitted additional proposal documents at 12:00 pm. The Navy rejected TriStar’s entire proposal as late. TriStar protested.

The Navy had previously awarded this contract to TriStar in 2019, but had terminated in light of a protest. TriStar argued that because it had been awarded the previous contract, the Navy already had all the supporting information it needed to evaluate the proposal.

GAO noted that in certain circumstances an agency has an obligation to consider “close-at-hand” information about which it aware. But that obligation only applies to past performance information; GAO has declined to extend that rule to the evaluation of a protester’s technical proposal. It is an offeror’s obligation to submit a well-written proposal that clearly demonstrates compliance with the solicitation. To the extent that TriStar was arguing that the Navy should have filled in the gaps in its proposal, that argument was without merit.

TriStar argued that the Navy could have obtained the missing portions of the proposal through discussions. The RFP, however, advised offerors that it was their responsibility to present enough information to allow the agency to evaluate proposals without discussions. Indeed, the RFP further advised that the agency intended to evaluate proposal without discussions. Under the circumstances, the Navy was not required to obtain the missing portions of the proposal through discussions.

Next, TriStar contended that the Navy could have excluded the subcontractor’s filing from consideration and simply evaluated TriStar’s timely submission. The Navy actually attempted to do this, but it found that TriStar’s portion lacked necessary supporting documentation on aircraft performance requirements, which was contained in the subcontractor’s portion. As a result, the Navy could not confirm that TriStar’s proposal met the solicitation’s performance requirements.

Citing FAR 52.215-1(f)(3), TriStar argued that the subcontractor’s failure to timely submit its portion was a minor informality or irregularity that the Navy should have waived. GAO noted that FAR 52.215-1(f)(3), which was incorporated into the solicitation, allows an agency to waive minor informalities. But GAO reasoned that the FAR provision is permissive and does not require an agency to waive informalities. Moreover, the provision only applied to proposals that have been received. The Navy did not timely receive a material portion of TriStar’s proposal.

Lastly, citing other GAO decisions, TriStar argued that the policy reasons for the strict adherence to proposal deadlines were not present in this case. GAO found the cited cases inapposite. In those cases, offerors had been required to submit an electronic copy and a hard copy of the proposals. GAO had found that the failure to submit both copies on time was a minor informality because the agency had another timely copy of the proposal. In this case, however, the Navy never had another copy of TriStar’s complete proposal.

TriStar is represented by Stephen R. Snodgrass and Charles A. Weiss of Bryan Cave Leighton Paisner LLP. The agency is represented by Travis D. Van Ort, Kristina M. Hogan, Thomas J. Florip, and Stephanie A. Polk of the Navy. GAO attorneys Kenneth Kilgour and Jennifer D. Westfall-McGrail participated in the preparation of the decision.

GAO Tri Star