STG, Inc., B-285910, September 20, 2000

B-285910 Sep 20, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Proposal submitted prior to the issue date of a request for proposals (RFP) is an offer in response to the RFP that the contracting agency must consider where the agency provided the offeror with prior written notice that it would do so. I have provided our question to you below. Background: STG is an eligible 8(a) for the above referenced opportunity through December 1999. Should STG have the ability to prepare a compliant response to the RFP in 1999. You would have to meet the eligibility requirements of the 8(a) set aside. The contracting officer determined that discussions were necessary and began establishing a competitive range. The contracting officer determined that STG's submission "was not an a??offer' as defined by the Federal Acquisition Regulations (FAR) 2.101.". View Decision Matter of: STG, Inc. File: B-285910 Date: September 20, 2000 DIGEST Attorneys DECISION STG, Inc. protests the rejection of its proposal under request for proposals (RFP) No. PR-HQ-00-10150, issued by the Environmental Protection Agency (EPA) for information management services for EPA's libraries, public information centers and records centers. /1/ We sustain the protest. On December 3, 1999, EPA published notice in the Commerce Business Daily (CBD) of the agency's requirement for these services and its intent to issue the RFP in mid-December. Agency Report, Tab 1, CBD Notice. The CBD notice stated that EPA contemplated using the Small Business Administration's (SBA) section 8(a) set-aside program and making two awards, one using the section 8(a) competitive process and the other restricted to Indian Tribal Concerns/Alaskan Native Corporations. Id. On or around December 5, EPA posted notice on its Internet site of circumstances that would delay the issuance of the RFP. Contracting Officer's Statement at 1. Shortly thereafter, a prospective offeror requested that EPA release a draft RFP. Id. On December 16, STG sent the contracting officer the following E-mail message: As a follow-up to our telephone conversation this morning, and at your request, I have provided our question to you below. Background: STG is an eligible 8(a) for the above referenced opportunity through December 1999. EPA may release a draft RFP in 1999 for the above referenced program. Question: Should the EPA release a draft RFP in 1999, and should STG have the ability to prepare a compliant response to the RFP in 1999, and should the final RFP not contain any major changes in its content or requirements, if STG elects to submit our proposal based on the requirements of the draft RFP, would EPA evaluate our proposal with the other proposals received in response to the final RFP? Protest, exh. 1, E-mail Message from STG to EPA. The contracting officer responded to STG on December 20 with the following e-mail message: In response to your question, I can't see any reason why we wouldn't consider/evaluate your proposal if submitted as you state. Obviously, you would be at your own risk in the event of changes from the draft to the final RFP -- and you would have to meet the eligibility requirements of the 8(a) set aside. Id., E-mail Message from EPA to STG. On December 22, EPA posted a draft RFP on its Internet site. On December 30, STG submitted a proposal to EPA for consideration under the RFP. Contracting Officer's Statement at 1. On March 2, 2000, EPA issued the RFP with a closing date for receipt of proposals of April 5. STG made no further submissions in response to the RFP. After receiving proposals, the contracting officer determined that discussions were necessary and began establishing a competitive range. Id. at 2. During the competitive range review process, the contracting officer determined that STG's submission "was not an offer' as defined by the Federal Acquisition Regulations (FAR) 2.101." By letter of July 13, EPA notified STG that its submission could not be considered for award. Id. STG requested and received a debriefing, which was conducted on July 17. This protest followed. EPA has suspended award of a contract pending resolution of this protest. Id. The essential issue here is whether a proposal submitted prior to the date on which an RFP is issued can be considered an "offer" as defined by the FAR. This is an issue of first impression. The definition at FAR Sec. 2.101 states the following: "Offer" means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract. . . . [R]esponses to requests for proposals (negotiation) are offers called "proposals . . . The agency alleges that a submission cannot "respond" to an RFP until the RFP is issued; thus it is not an offer, and the FAR precludes consideration of such submissions. Agency Report at 1-2.