The RFP required electronic submission of proposals. The protester submitted a proposal electronically, but the agency never received it, and it was deleted from the agency’s system after seven days. The protester argued there was a flaw in the electronic system, so the agency should’ve considered its proposal. Notwithstanding the flaw in the submission system, GAO found the protester had not followed the RFP’s submission instructions. So the agency didn’t receive notice of the submission, and the proposal was lost when the system automatically deleted it. A protester is not entitled to relief just because its proposal was lost.
The Morganti Group, Inc., GAO B-420750.2
Background
The Army Corps of Engineers posted an RFP for construction of a munitions storage area. The RFP required offerors to submit proposals electronically through DoD’s Secure Access File Exchange (SAFE) site. To submit a proposal, offerors would need to log onto the SAFE site and enter a code provided by the agency. The program would then open a drop-down form where the offeror would upload its proposal and enter names and emails of the intended recipients—in this case, the contracting officer and contract specialist. Once the proposal was submitted, SAFE would notify the recipients. Regardless of whether the recipient viewed or downloaded a proposal, SAFE would automatically delete the file after seven days.
The Morganti Group submitted a proposal via SAFE. After learning that another offeror American International Contractors, Inc. had received award, Morganti asked the Corps for a formal notification of award. The Corps informed Morganti that it had no record of receiving the proposal. It appeared Morganti had used an incorrect email address for a recipient when using its email.
Indeed, Morganti was not the only offeror to have problems submitting acproposal through SAFE. It turned out that when offerors submitted their proposals, SAFE auto-populated the form with the incorrect email address of the contract specialist. Nevertheless, the Corps refused to consider Morganti’s proposal, reasoning that company had failed to properly submit its proposal.
Morganti filed a protest with GAO challenging the decision to reject its proposal.
Analysis
Agency Reasonably Rejected Morganti’s Proposal
Morganti reasoned that in light of the issues with the SAFE system self-populating the wrong email address, the Corps had erred in failing to consider to Morganti’s proposal. GAO wasn’t convinced. The RFP required offerors to submit proposals to the contracting officer and contract specialist. SAFE auto-populated the incorrect address of the contract specialist, but Morganti never added the address of the contracting officer as required. The multiple email requirement was a failsafe against misdirected emails. If Morganti had followed the RFP’s instructions to add both emails, the agency would’ve received its proposal.
Moreover, while an agency had an obligation to safeguard proposals, an agency may still lose a proposal. A protester is not entitled to relief when an agency loses a proposal. In this case, because Morganti did not follow the RFP’s instructions, the agency never received notification that Morganti had submitted a proposal. Accordingly, after seven days, Morganti’s proposal was deleted from SAFE. Morganti had no basis to object to the agency’s failure to consider its proposal.
Disparate Treatment
Morganti argued the Corps engaged in unequal treatment when it rejected Morganti’s proposal but accepted proposals from other offerors, including AICI, who had also failed to properly submit proposals through SAFE. But GAO found these other offerors were differently situated. Not all the offerors had failed to follow the submission requirements in the same way. For instance, AICI had submitted its proposal through SAFE with at least one correct email address. Morganti had submitted its proposal with a single incorrect email address. These differences between offerors were meaningful because they impacted whether the agency knew of the submission prior to deletion by SAFE.
Morganti is represented by Jason P. Matechak and Jill K. McDowell of Impresa Legal Group. The intervenor, AICI, is represented by Scott M. Heimberg, Thomas P. McLish, and Samantha J. Block of Akin Gump Strauss Hauer & Feld LLP. The agency is represented by Megan O. Jorns of the Army. GAO attorneys Jacob M. Talcott and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
–Case summary by Craig LaChance, Senior Editor
