The Awardee Submitted Alternate Bids. Why Did the COFC Find the Alternates Disqualifying and Toss the Award?

Offerors often submit multiple bids or alternate prices as a way of offering the agency a variety of approaches. That’s what the awardee in this case did. This was a problem, however, because the solicitation specifically stated if an offeror submitted multiple bids, all bids would be rejected. The awardee argued that it had merely submitted alternate pricing structures, not multiple bids. The court was not persuaded, reasoning that the awardee had submitted three bids on three separate PDFs. Each of those documents promised something different.

Elevated Technologies, Inc. v. United States, COFC No. 22-0004C

Background

The Department of Veterans Affairs issued an RFQ seeking maintenance and repair of elevators. The RFQ limited vendors to one quote, stating that the submission of more than one quote would result in all quotes being rejected and the company being deemed non responsive.

Six companies submitted quotations, including Elevated Technologies, Inc. and GreenEfficient, Inc. The VA rejected Elevated’s quotation, because the company had not submitted a required mechanic license. The VA awarded the contract to GreenEfficient because it had submitted the only acceptable quote.

Elevated filed a protest with GAO. As the 100-day deadline for a GAO decision approached, however, Elevated withdrew its protest and filed suit at the Court of Federal Claims challenging the award.

Legal Analysis

Laches

GreenEfficient argued that Elevated’s protest was barred by the doctrine of laches because Elevated waited three months before bringing the COFC suit. Laches bars a claim when the plaintiff’s delay in bringing the claim prejudices the adverse party.

Here, the court found that Elevated had not delayed in bringing the claims. Indeed, Elevated filed a protest with GAO shortly after the award, and then immediately filed with the COFC after withdrawing its GAO protest. 

Multiple Bids

Elevated argued that GreenEfficient should have been disqualified for submitting multiple bids. The court agreed.

The RFQ contained several unambiguous provisions that limited the quotations a vendor could submit. Indeed, the RFQ plainly stated that if a contractor submits more than one quote, all quotes would be rejected.

Here, GreenEfficient submitted one email to the VA, but that email contained three separate bids in three separate PDFs. GreenEfficient contended that it had merely submitted different pricing structures, but the court didn’t buy it. Rather, GreenEfficient’s alternative bids offered different levels of service that did not conform to the solicitation.

The government argued that even if GreenEfficient submitted more than one quotation, the RFQ did not necessarily prohibit the agency from accepting alternative bids so long as it did not prejudice other offerors. The court rejected this argument, reasoning that the RFQ contained an express provision mandating that the VA disqualify vendors that submitted multiple bids. When an agency cabins its own flexibility through clearly mandatory language, it must adhere to those terms.

Prejudice

Although Elevated had submitted an unacceptable quotation, the court still found the company had been prejudiced by the agency’s error. GreenEfficient should’ve been disqualified. If this had happened, there would have been no acceptable quotations in which case the VA would have to resolicit and give Elevated another chance to compete.