The protester challenged a sole-source award. The agency argued the protester wasn’t an interested party because it had not submitted a timely capability statement in response to the sole-source notice. GAO, however, let it slide, The strict rules for timely proposals don’t apply to capability statements.
CC Software, Inc., GAO B-421566
- Untimely Capability Statement – To be an interested party to challenge a sole source award, the protester must submit a timely capability statement showing the firm is capable of performing the requirement. The agency argued the protester had not submitted a timely capability statement. The protester had emailed a capability statement before the deadline, but the email had been quarantined and did not reach the required inbox in time.
- Capability Statement v. Proposal – GAO acknowledged that an offeror bears the burden of ensuring its proposal is received by the designated agency official at the designated time. Nevertheless, GAO reasoned, this rule applies to proposals, not to capability statements. Proposals are binding offers to the government and thus require strict rules to ensure fairness. Capability statements are informational responses. They are not binding and thus not subject to strict rules.
- FAR 15.208 – Even if capability statements were equivalent to proposals, GAO opined the statement was still timely under FAR 15.208. That provision allows an agency to consider a proposal that was transmitted electronically and received at the designated point of entry to the government infrastructure one working day prior to the deadline. Here, the protester’s capability statement had been received at the electronic point of entry days before the deadline.
- Premature Protest – Although the protester was a interested party, the protest was premature. A protest of a sole-source award is premature if the agency has not reviewed capability statements or proceeded with the sole source award. In this case, the agency had not neither rejected the protester’s capability statement nor proceeded with award.
The protester is represented by Justin D. Heideman of Heideman & Associates. The agency is represented by Jonathan A. Hardage of the Army. GAO attorneys Emily R. O’Hara and Peter H. Tran participated in the decision.
–Case summary by Craig LaChance, Senior Editor
