Protest challenging agency’s decision to amend, rather than cancel, a solicitation is denied. The protester alleged the agency had substantially changed its requirement and thus, under FAR 15.206, should have cancelled and reissued the solicitation instead of amending it. But GAO found that the protester had misinterpreted FAR 15.206. The purpose of that provision is to ensure that when an agency substantially changes its requirements, all potential offerors, not merely those that submitted proposals in response to the initial solicitation, are aware of the changed requirements so they have an opportunity to compete on the new basis. Here, the protester had already submitted a proposal in response to the initial solicitation and thus was not a beneficiary of FAR 15.206.
The Army Corps Engineers posted an RFP seeking to award multiple IDIQ contracts for debris removal services. The RFP contemplated two sets of awards, one set for small businesses and one open to all offerors.
RELYANT Global, LLC submitted a proposal for three of the small business set aside regions. The Corps awarded contracts for the unrestricted group. Before awards were made to the small business group, offerors from the unrestricted pool filed protests, challenging the Corps’ evaluation of proposals. In response to the protests, the Corps took corrective action to reevaluate and make new award decision.
But as part of the corrective action, the Corps determined that the RFP contained errors and ambiguities. The Corps issued amendments to address these errors. Before the deadline for proposals, RELYANT filed a protest objecting to the amendments.
RELYANT noted that under FAR 15.206 when a solicitation is amended after offers have been received, and the amendment is so substantial it exceeds what prospective offerors could have anticipated such that other offerors would have likely bid had they known the substance of the amendment, then the agency should cancel the solicitation and issue a new one. RELYANT argued that in this case, the amendments were so substantial that the Corps should have reissued the solicitation instead of amending. RELYANT argued that it had entered into biding teaming agreements before the amendment was issued. Those agreements now prevented it from submitting a competitive bid in response to the amendments.
But GAO found that RELYANT had misinterpreted FAR 15.206. The purpose of that provision is to ensure that all potential offerors, not merely those that submitted proposals in response to the initial solicitation, are aware of the changed agency requirement so that they have an opportunity to compete on the new basis.
RELYANT, which submitted a proposal in response to the initial solicitation and had been invited to submit a revised proposal in response to the amendment, was not an appropriate party to challenge the decision to amend. RELYANT construed FAR 15.206 as allowing an offeror that submitted a proposal to the initial solicitation and then finds that it can no longer meet the terms of the amended RFP. FAR 15.206, however, was intended to benefit potential offerors that, unlike RELYANT, did not submit a bid on the initial solicitation and would not be able to compete if the solicitation was amended instead of cancelled.
Still, RELYANT argued that the amendment had caused it competitive harm because its current teaming agreements prevented it from submitting a competitive revised proposal. But GAO found that RELYANT had not explained why the Corps should be bound by RELYANT’s business decision to enter teaming agreements that it could not modify in the face of an amended solicitation. RELYANT had failed to distinguish between competitive prejudice caused an agency’s improper actions and competitive disadvantage caused by an offeror’s own business decision.
Lastly RELYANT contended that the amendments violated the FAR because the “summary of changes” sections of the amendments did not provide an adequate description of the changes being made. GAO, however, found that the FAR did not required a summary of change to require any specific amount of information. Offerors could finds all the changes made to the solicitation by simply reading it.
RELYANT is represented by James Price of Lacy, Price & Wagner, P.C. The agency is represented by Tristan Brown, Shannon McCurdy, Brynn Morgan, and Rebecca Elliot of the Army. GAO attorneys Christopher Alwood and John Sorrenti participated in the preparation of the decision.
