Deep Thoughts: Does the Word “Attach” Simply Mean to Fasten or Does It Encompass Incorporation by Reference?

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A.K.K | Shutterstcock

The solicitation required offers to attach certain representations to their proposal’s cover letter. The protester didn’t attach one of the required representations but instead completed the representation electronically in SAM. The agency rejected the proposal for failure to follow instructions. The protester argued the word “attached” encompassed incorporation by reference, and that its proposal incorporated the SAM representation by reference. But GAO denied the protest, finding that actually attaching the representation to the cover letter was a separate and additional requirement. Merely completing the representation in SAM did not satisfy this requirement.

Futron, Inc., GAO B-420703

Background

The Air Force issued an RFP to small business holders of GSA’s One Acquisition Solution for Integrated Services IDIQ contract. The RFP sought services in support of an Air Force research laboratory. The RFP required offers to submit representations in accordance with FAR 52.204-24 and 52.204-26 on the use of certain telecommunications equipment. The solicitation stated offerors had to attach the completed representations to their cover letters or their proposal would be ineligible.

But the RFP also included attachment 5, which incorporated multiple FAR provisions by reference. Attachment 5 included the full text of FAR 52-204,24 but it did not include 52-204.26. Instead, attachment 5 included FAR 52.204-8, which states that offerors could complete representations electronically in the System of Award Management and then verify that those representations were current in their proposals.

Futron Inc., submitted a proposal in response to the RFP. Futron included attachment 5 with its proposal. That attachment included the representation required by FAR 52.204-24, but not the representation for FAR 52.204-26. Instead, Futron completed the representations for FAR 52-204-26 electronically in SAM. 

The Air Force, however, rejected Futron’s proposal as ineligible. The Air Force reasoned that the representation required under FAR 52-204-26 was not “attached” to the proposal as required by the RFP. Futron protested.

Analysis

Attachment of Representation

Futron contended that the solicitation did not specify that to be “attached,” the representation actually had to be fastened to the proposal. Futron argued that the meaning of “attached” is broader and encompasses incorporation by reference. Futrun reasoned that because (1 ) its proposal included attachment 5, which allowed representation to be made electronically in SAM, and (2) it had made the required representation under FAR 52.204-26 in SAM, then (3) its proposal incorporated the FAR 52,.204-26 representation by reference.

GAO found Futron’s interpretation of the RFP unreasonable. If an offeror could simply complete attachment 5 and make representations in SAM, it would mean the RFP’s instruction that two specific representations had to be “attached” to cover letter was superfluous. What’s more, Futron’s interpretation ignored the solicitation’s instruction that proposals should be complete and not rely on external sources of information. By making its representations on SAM, Futron had relied on an external source outside its proposal. It was clear to GAO that the requirement to “attach” the representation was an additional requirement beyond making the representations themselves. The agency properly rejected Futron’s proposal.

Referral to SBA

Futron contended that because it was a small business, the Air Force should have referred the matter to the SBA for a certificate of competency determination before rejecting its proposal. But GAO reasoned that an agency only needs to refer a matter to the SBA when it finds an offeror is non-responsible. Here, the Air Force found Futron ineligible for failing to submit required information. Rejecting a proposal for failure to submit required information does not constitute a responsibility determination.

Futron is represented by Brian A. Darst. The agency is represented by Colonel Frank Yoon, Major Alissa J. Schrider, Edward S. Fisher, and Major Jacquelyn C. Fiorello of the Air Force. GAO attorneys Heather Self and Peter H. Tran participated in the preparation of the decision.

GAO - Futron