The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series.  In this series, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month.  Below, Crowell Consultant Cherie Owen discusses Hometown Veterans Medical, LLC, B-422751; B-422751.2, Oct. 11, 2024, 2024 CPD ¶ 244, in which GAO sustained the protest of a company eliminated from a procurement on the basis of a non-substantive compliance check.

In Hometown, the Department of Veterans Affairs (VA) was conducting a procurement for home oxygen services.  Among other things, the solicitation instructed offerors to complete certain SAM.gov certifications.  It also stated that failure to provide all of the documentation required by the solicitation would result in proposal rejection.  After receiving proposals, the VA first conducted a “compliance check” to determine whether each offeror had complied with all of the solicitation’s instructions.  Based on its compliance check the VA eliminated four of the eight proposals—including Hometown’s—as unacceptable.  Hometown protested its elimination, arguing that the non-compliance in its proposal was not substantive and that the compliance check constituted an unstated evaluation criterion. 

In responding to the protest, the VA distinguished between what it characterized as an “initial compliance review” of proposals (which resulted in the rejection of Hometown’s proposal), and evaluation (which had not yet occurred).  However, GAO firmly rejected this distinction, stating, “[w]e decline to adopt that distinction for purposes of our consideration of Hometown’s protest,” and citing FAR 15.305, which describes the assessment of an offeror’s proposal as an evaluation.  More importantly, GAO stressed that, no matter how the agency characterized its review, the VA’s rejection of proposals was not consistent with the RFP’s stated evaluation criteria.  In this regard, GAO noted that there was no language in the solicitation indicating that the VA would perform an “initial compliance review” as part of the evaluation. To the contrary, the solicitation identified only two evaluation factors: experience and price.  The requirement to submit copies of SAM.gov certifications did not fall under either of these evaluation criteria.  As a result, GAO sustained the protest, instructing the VA to either amend the solicitation to state the additional criteria on which it intended to evaluate proposals (including any initial compliance review), solicit revised proposals, and conduct a new evaluation or reevaluate all proposals consistent with GAO’s decision and the existing evaluation criteria.

In sustaining the protest, GAO stressed that the requirement to submit copies of offerors’ SAM.gov certifications was not explicit in the solicitation.  Therefore, the situation in Hometown was different from GAO’s decision in Futron, Inc., B-420703, July 25, 2022, 2022 CPD ¶ 189, where GAO found an agency had properly rejected a proposal for failure to submit similar copies of certifications.  In Futron, the solicitation had explicitly warned that “[f]ailure to complete the representations will deem the proposal ineligible for award”—a provision that Futron did not challenge prior to the solicitation’s closing date.

The Hometown decision provides an important reminder that regardless of whether an agency characterizes its assessment as a “compliance review” or an “evaluation,” agencies are required to evaluate proposals consistent with the terms of the solicitation. 

We would like to thank Cherie J. Owen, Consultant, for her contribution to this blog post.

On November 14, 2024, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2024, containing the full statistics shown below: