The solicitation required offerors to submit proposals through an electronic platform. The protester had problems with the platform. The protester emailed the agency several times about its difficulties. But the problems were never resolved, and the protester was unable to submit its proposal in time. The protester argued the requirement to submit a proposal through the platform was unduly restrictive. The protester reasoned this was a timely challenge to the solicitation because one of the emails it sent to the agency complaining about the platform was an agency protest that had preserved the issue. But GAO found the protest untimely. The protester’s email had merely suggested an alternative submission method; it never requested specific relief and thus was not an agency protest.
The Ulysses Group, LLC, GAO B-420566
Background
The Air Force released a commercial solutions opening (CSO) under the Small Business Innovation Research program. The CSO required all proposals to be submitted electronically through the DoD SBIR portal. The CSO did not provide for an alternative means of submission. Moreover, the CSO provided that the Air Force was not responsible for a missed proposal submission due to system lag or inaccessibility.
Days before the proposal deadline, The Ulysses Group attempted to submit a proposal through the DoD platform but had technical problems. Ulysses was able to upload everything except its technical volume. The system kept rejecting the technical proposal.
Ulysses emailed the DoD support desk. The support desk recommended some troubleshooting fixes, but they didn’t work. Ulysses emailed the Air Force and the DoD support desk additional times over the next couple of days but was unable to submit its proposal.
The day after the proposal deadline, Ulysses filed an agency protest. The Air Force denied the protest. Ulysses filed a protest with GAO.
Legal Analysis
Challenge to Submission Method
Ulysses argued that the requirement to submit proposals through the DoD SBIR platform without any other method was overly restrictive of competition.The agency argued this was an untimely challenge to the terms of the solicitation. Ulysses, however, contended that one of the emails it sent to the support desk seeking help with the submission was an agency protest that challenged the submission requirement. Ulysses believed this agency protest had preserved its challenge to the solicitation.
An agency protest must include a detailed statement of the factual grounds of the protest and it must request a ruling by the agency. A letter or email that expresses a hope or suggestion does not constitute an agency protest.
Here, the email that Ulysses claimed was an agency did not satisfy the criteria. The email did not request specific relief. Rather, it simply stated a suggestion that the agency have a backup process. GAO concluded the challenge to the submission was untimely.
Agency’s Refusal to Consider Proposal
Ulyssess argued that it uploaded the majority of its proposal except for the technical volume. Under the circumstances, Ulysses reasoned, it was unreasonable for the Air Force to not consider its proposal.Â
But an agency is not required to consider a proposal when the proposal had not been actually received. Here, the DoD platform will not allow users to actually complete submission until all required volumes are uploaded. Ulysses never uploaded all the required volumes to the platform, so its submission was never complete. Ulysses never actually submitted a proposal. The Air Force was not obligated to consider anything.
Ulysses is represented by Andrew Lewis of The Ulysses Group. The agency is represented by Josephine R. Farinelli, Tiffany R. Schwartz, and Colonel Frank Yoon of the Air Force. GAO attorneys Raymond Richards and John Sorrenti participated in the preparation of the decision.
