Failure to Follow Section L Instructions as a Deficiency vs Weakness
Started by WhatHump · Jul 28, 2015 · 5 replies
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WhatHump
Jul 28, 2015 · 10y ago
Does anyone know of an instance in which a protestor has successfully challenged the competition winner by claiming that the winner should have been found deficient because the winner did not comply with Section L instructions? I have found case law that supports the Agency in the instance when a disappointed offeror complained about a deficiency levied upon it for failure to follow Section L instructions. See, HDL Research Lab, Inc., B-294959, December 21, 2004; JBlanco Enterprises, Inc., B-402905, 2010 U.S. Comp. Gen. LEXIS 203, August 5, 2010; Managed Care Concepts, LLC, B-402750, 2010 U.S. Comp. Gen. LEXIS 146; 2010 Comp. Gen. Proc. Dec. P164, July 15, 2010 (did not submit resumes on proposed personnel); Delta Food Service, B-245804.2, 1992 U.S. Comp. Gen. LEXIS 158; 92-1 Comp. Gen. Proc. Dec. P172, February 11, 1992 (did not submit letters of intent), Al Andalus General Contracts Co. v. U.S., No. 08-599C, U.S. Court of Federal Claims, 86 Fed. Cl. 252; 2009, U.S. Claims LEXIS 60, March 11, 2009 (formatting). However, I have not found an instance where a disappointed offeror successfully challenged the winner's 'weaknesses' or absence of deficiency for the failure to follow Section L (i.e. that the winner should have been found deficient for the failure to follow Section L). I am making a distinction because, in the case law that I found, the GAO implicitly holds that the Agency may give a deficiency for the failure to follow what may seem like ministerial instructions in Section L. In an instance of a successful challenge by another offeror based on a winner's failure to follow Section L instructions, that would likely mean the Agency must find a deficiency for failure to follow Section L instructions.
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joel hoffman
Jul 28, 2015 · 10y ago
Try this link: /legacy/a/46435916c8a35fd4.pdf
North Wind, Inc; Earth Resources Technology, Inc
4 Nov 2011
B-404880.4, B-404880.5, B-404880.6
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Guest Vern Edwards
Jul 29, 2015 · 10y ago
Does anyone know of an instance in which a protestor has successfully challenged the competition winner by claiming that the winner should have been found deficient because the winner did not comply with Section L instructions?
Yes. See IBM U.S. Federal, a division of IBM Corporation; Presidio Networked Solutions, Inc., GAO B-409806, 2014 CPD ¶ 241, August 15, 2014, in which the GAO sustained a protest because the agency selected a firm that did not comply with a page limitation.
In order to win such a protest the protester must show (a) that the selectee failed to comply with proposal preparation instructions and that the agency failed to enforce the instructions and ( b ) that the protester was prejudiced by the selectee's failure to comply and the agency's failure to enforce. Mere failure to comply with instructions is not enough.
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Don Mansfield
Jul 29, 2015 · 10y ago
In an instance of a successful challenge by another offeror based on a winner's failure to follow Section L instructions, that would likely mean the Agency must find a deficiency for failure to follow Section L instructions.
A failure to follow Section L instructions could be an informality or minor irregularity, which can be waived pursuant to FAR 52.215-1(f)(3). As such, a failure to follow the instructions would not necessarily constitute a deficiency. I think the failure to follow instructions would have to be material to constitute a "deficiency" as defined by FAR 15.001.
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WhatHump
Jul 29, 2015 · 10y ago
Thank you all so much!!
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joel hoffman
Aug 3, 2015 · 10y ago
There are numerous examples of sustained protests over the government's award of a contract to a non-conforming proposer in the WIFCON Protest pages, which are listed by issue or listed by FAR.. I looked under the subject "FAR 15.305: Unacceptable or offers not in compliance with solicitation". Some of them would appear to meet your criteria for not complying with the proposal submission requirements.
Thank you all so much!!