Oct 5, 2017

In its September 18, 2017 decision, the GAO sustained McCann-Erickson USA, Inc.’s (“McCann”) protest challenging the Army’s preliminary elimination of McCann’s proposal for advertising services on an acquisition valued up to $4 billion.  After receiving numerous proposals the Army performed a “compliance review” aimed at thinning the number of proposals before applying the evaluation criteria detailed in the requests for proposals. McCann’s proposal was eliminated for alleged failures in following the proposal preparation instructions.

The GAO agreed McCann’s proposal did not comply with the exact format requested in the solicitation, but stated such problems were not sufficient, on their own, to exclude a proposal before taking a more substantive look at the proposal’s contents. This decision is supported by the fact that the solicitation gave no warning the Army would be taking such a harsh pass/fail look at compliance with proposal preparation instructions.

It certainly did not help that at least some of the alleged deficiencies of the proposal were found, by the GAO, to really be mistakes by the Army. The GAO walks through such examples including, the Army’s inability to search for McCann’s certifications in the system for award management database, despite being provided the correct name and code. The GAO also found the Army’s refusal to evaluate McCann’s price proposal submission because it was in PDF format rather than the requested Excel format was unreasonable. While previous GAO decisions have supporting an Agency’s harsh response to such unfollowed format requests, here the Army did not put forth any reason why submission in PDF format, rather than Excel, poised any problems.

This decision is not quite landmark, but does give push back to the government’s seemingly increasing use of “pre-evaluation…evaluations” in the face of an overwhelming number of proposals.

About the Author:

Tyler Freiberger Headshot | Centre Law & Consulting in Tysons, VA Tyler Freiberger
Associate Attorney

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

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  • Bob Perkins says:

    anybody interested in a potential class action against GPO?. It relates the subcontracting of work. they have promotional products in their arsenal of services. The promotional products industry business model is based on “subcontracting”. e.g. they won’t allow a “dealer” to quote on bumper stickers unless you are printing in-house.
    This excludes a lot of companies. Same issue for decals, pads of paper, etc. List goes on and on. The promotional products industry is a $20 Billion industry which is openly discriminated against by GPO.

    They say things about quality issues, etc.. The defense is nonsense. GPO has contractors. they also have a quality program called QTAP and levels of “quality”. All jobs are subject to QTAP. They can not defend the issue of what difference does it make if a dealer is inserted in the flow… All the jobs are still printed in a print shop. All are subject to the quality program.
    To make matters worse they come after you if you (are a dealer and ) take a job from a contract specialist that does not have the subcontracting clause in it. Bottom line is you as a dealer are not allowed to quote on promotional product jobs even though your pricing and expertise is better than the offset printers who outsoruce the job anyway. The is clear cut discrimination.

    Bob Perkins
    Premiums & Specialties, Inc ( SDVOB)
    main office: 856-520-8424 Medford, NJ office 609-654-7070

    ps, You guys do a great job… Keeping the govt. in check is difficult.