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Tight deadlines are a fact of life in the world of government contracting.  Indeed, it is not unusual for the government to expect a contractor to provide large amounts of information in just a few short days.  And the draconian penalty for missing such a deadline is usually the rejection of a proposal.But can an agency’s deadline be unreasonably short?  Yes.  In MCR Federal, LLC, GAO determined that the agency’s deadline for submitting its final proposal revision (“FPR”) was so short that it deprived the protester of a fair opportunity to improve its proposal.The Air Force’s solicitation was for the award of a task order under the OASIS IDIQ contract, and was therefore governed by FAR 16.505.  MCR submitted a timely proposal, and was invited by the agency to engage in “interchanges” — which, as GAO explained, gave offerors an opportunity to materially modify their proposal to meet the agency’s concerns.

During those interchanges, the agency told MCR that only 5 of its 58.5 full-time equivalents (“FTEs”) had the desired level of experience.  It also told MCR that its reliance on contingent hires created a risk that it would not be fully-staffed in time to perform.

The agency then gave MCR just two days to submit a FPR addressing these issues.  MCR protested, arguing that it needed at least 30 days to respond, otherwise it would not have a fair opportunity to improve its proposed labor mix.

In response, the agency offered to give MCR eight days to respond, and asked GAO to dismiss based on that proposed corrective action.  GAO, however, denied the agency’s request for dismissal, because the proposed corrective action did not address MCR’s core concern — i.e., that it needed at least 30 days to improve its staffing matrix.

GAO then sustained MCR’s protest.  GAO explained that FAR 16.505 requires that each IDIQ holder have a “fair opportunity” to be considered, and this includes a “reasonable response period.”  Because FAR 16.505 does not include specific guidance for an agency’s conduct of discussions with offerors, GAO looked to FAR Part 15, which explains that the purpose of such exchanges is to “afford offerors the opportunity to improve their proposals and to maximize the government’s ability to obtain the best value.”

The agency argued that, under GAO precedent, the response period for an FPR submission is “committed to the discretion of the contracting officer,” and GAO will not object to that decision unless it is shown to be unreasonable.

But GAO concluded that, in this case, the period was objectively unreasonable:

In order to be responsive to the agency’s experience concerns, and to remain competitive in the procurement, MCR could not simply confirm its staffing proposal. Instead, it would have had to successfully recruit and negotiate employment agreements . . . with a substantial number of highly-skilled personnel that have senior-level experience[.]  To address the agency’s concern about contingent-hire personnel, MCR would need to propose non-contingent-hire personnel, which would affect the firm’s pricing, or alternatively required substantial revisions to its transition plan.

This was not something MCR could do in eight days (let alone two days).

The key takeaway?  When agencies engage in discussions, they must afford offerors a meaningful opportunity to improve their proposals.  Agencies will continue to have a large amount of discretion, but if an agency imposes a deadline that cannot be met, a protest may be worthwhile.

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Photo of Jay Carey Jay Carey

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a…

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a co-chair of the Aerospace, Defense, and National Security industry group.

Jay has won bid protests collectively worth more than $100 billion, for clients across a range of industries — including aerospace & defense, energy, healthcare, biotechnology, cybersecurity, IT, and telecommunications. He litigates protests before the U.S. Government Accountability Office (GAO); the Court of Federal Claims (COFC); and state tribunals across the country. A list of his recent wins can be found under the “Representative Matters” tab.

In addition, Jay advises clients on compliance matters, conducts internal investigations, and defends against investigations by federal and state agencies. He also counsels clients on matters related to the formation of government contracts, including organizational conflicts of interest and the protection of intellectual property rights when entering into procurement contracts, grants, cooperative agreements, and “Other Transaction Authority” agreements with the government.

Jay serves as co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee.

Photo of Peter Terenzio Peter Terenzio

Peter Terenzio routinely advises clients regarding the multiple regulatory regimes that apply to federal contractors. His practice also extends outside of traditional government procurement contracts to include federal grants and Other Transaction Authority (OTA) research, prototype, and production agreements.

Among other things, Peter…

Peter Terenzio routinely advises clients regarding the multiple regulatory regimes that apply to federal contractors. His practice also extends outside of traditional government procurement contracts to include federal grants and Other Transaction Authority (OTA) research, prototype, and production agreements.

Among other things, Peter regularly helps clients with the constantly evolving domestic-preference requirements promulgated pursuant to various federal laws, including, for example, the Buy American Act (BAA) and Trade Agreements Act (TAA), but also including more recently the Inflation Reduction Act (IRA) and Infrastructure Investment and Jobs Act (IIJA). He also has particular experience with helping clients navigate the complicated prevailing wage rules imposed by the Davis Bacon Act (DBA) and Service Contact Act (SCA). Peter has used this regulatory knowledge to help clients negotiate the specifics of their contracts, grants, and OTA agreements.

Peter also has significant experience with the disputes that may arise during the execution of government prime contracts. He knows how to work closely with the client’s subject matter experts to prepare and submit detailed requests for equitable adjustment (REAs) in order to secure much-needed price or schedule relief. Where necessary, he has assisted clients with converting their REAs into certified claims, and when disputes cannot be resolved at the Contracting Officer level, he has helped clients vindicate their contractual rights in litigation before the Boards of Contract Appeals.