Three-Hour Deadline to Respond to Order Offer Not Unreasonable Considering Short Timeline for Performance; GAO B-417289, AeroSage LLC
Protest of an agency’s requirement for the vendor to provide written acceptance of the government’s offer of a purchase order in less than three hours is denied, where the amount of time provided was not unreasonable under the circumstances of the procurement, including that the agency required performance on the next day. GAO also dismissed the protester’s challenge to the agency’s failure to stay performance, as implementing a CICA stay is not a matter for consideration by GAO.
AeroSage LLC protested the Defense Logistics Agency’s award of a purchase order for diesel fuel to Infinite Energy Corp., arguing the unreasonably withdrew the government’s offer and moved to the next lowest-priced technically acceptable vendor for award after providing AeroSage less than three hours to provide written acceptance of the offer. The protester also alleged the agency violated the Competition in Contracting Act by failing to stay contract performance.
The agency issued an RFQ for the delivery of 10,000 gallons of diesel fuel on a lowest-priced technically acceptable basis. The RFQ was issued on February 6 and delivery was required on February 8. The CO offered AeroSage the purchase order via email at 7:17 a.m. on February 7, and instructed the offeror to respond by 10:00 a.m. if it wished to accept the offer. The email notified AeroSage that failing to respond by 10:00 a.m. could result in the withdrawal of the offer. The CO followed up with a reminder at 9:36 a.m. When AeroSage failed to respond, the CO rescinded the offer and informed the protester that the order would go to the next offeror in line for award.
At 10:15 a.m., AeroSage responded to the email. The CO did not respond to this email, but later emailed a notice to all offerors informing them that Infinite Energy would receive the purchase order. AeroSage filed an agency-level protest, which was denied. This protest followed.
AeroSage objected to the short notification process that provided it with less than three hours to respond to the agency’s offer. AeroSage complained that the requirement to respond to the offer in writing was not included in the RFQ and that the CO required the written response as retaliation.
However, GAO found the agency was within its discretion to request a response to its offer and to set a deadline. Given that the offer was made to AeroSage one day before fuel delivery was required, GAO found the 2 hour and 43 minute response time for acceptance of the offer was reasonable. The CO noted that the purchase order had a single line item, was only 13 pages long, and contained only standard terms and conditions, and therefore he believed the turnaround time was reasonable. Further, the CO explained that if AeroSage declined the offer, he would need time to choose another vendor and still meet the required delivery time.
AeroSage complained that it was not able to respond because its point of contact for the procurement, AeroSage’s President, was traveling and his travel prevented him from viewing the agency’s e-mail of the government’s offer in time to respond. GAO found this argument unavailing, explaining that the protester’s unavailability did not render the deadline unreasonable, in part because the agency was not aware of the protester’s unavailability at the time the notice was sent.
GAO also found no procurement law or regulation that requires an agency to include in an RFQ a term setting forth offer and acceptance procedures. GAO explained that a request to respond to an offer did not create a basis for evaluation for award and this request for AeroSage’s response had no bearing on the evaluation. While it may be prudent for an agency that anticipates requiring a short turn-around for acceptance of an offer resulting from an RFQ to indicate such in the RFQ, GAO was unaware of any requirement for the agency to do so.
GAO also rejected AeroSage’s allegations of bad faith. AeroSage complained that the CO called Infinite Energy to inform it of the offer prior, but did not make a similar call to AeroSage. However, GAO noted that the phone call to Infinite Energy was precipitated by circumstances that were not present when the offer was made to AeroSage. When the CO learned that AeroSage planned to file an agency-level protest, he asked the contract specialist to instruct Infinite Energy not to deliver until further notice. However, the specialist mistakenly sent an email to Infinite Energy canceling, rather than suspending, the fuel delivery. GAO noted the phone call to Infinite Energy addressed this error, and that there was no similar error requiring a phone call to AeroSage.
In contrast to the protester’s allegations, GAO found the agency asked each vendor to accept the government’s offer in writing by signing and returning the purchase order, and that the awardee did so within one hour of receiving the government’s offer. Further, the alleged bias could not have affected AeroSage’s competitive position, because the phone call to Infinite Energy occurred after the CO rescinded the offer to the protester. Accordingly, GAO denied the protest.
AeroSage also argued the agency violated the Competition in Contracting Act when it failed to suspend performance and instead accelerated delivery of the fuel after AeroSage filed its protest with GAO. AeroSage filed its protest at 11:05 a.m. on February 7 and informed the CO of the protest at 11:07 a.m. Based on notification from AeroSage that it intended to file a protest, the CO asked the contract specialist to instruct Infinite Energy not to deliver until further notice.
However, at 11:12 a.m., agency counsel erroneously advised the CO that the agency had not received notification of a protest with GAO. The CO then telephoned Infinite Energy to explain that the cancellation e-mail had been sent in error and to ask if delivery could be accelerated. The agency confirmed the CO hoped that Infinite Energy would deliver the fuel before AeroSage filed its protest with GAO.
At 11:32 a.m., the CO e-mailed Infinite Energy confirming that the order was not cancelled and affirming the request for accelerated delivery. Within the next thirty minutes, Infinite Energy telephoned the CO to confirm that it could accelerate delivery for completion on February 7 rather than February 8. According to the agency, neither agency counsel nor CO became aware of the protest until February 8, after performance had been completed.
GAO agreed that the statutory requirement to stay performance of the protested contract award should have been triggered by the 11:08 a.m. EPDS e-mail from GAO notifying the agency of the protest. However, an agency’s failure to comply with the statutory stay requirement is not a valid basis of protest. Consequently, AeroSage’s objection to the agency’s failure to suspend contract performance is dismissed.
AeroSage LLC is represented by David M. Snyder. The government is represented by Matthew Vasquez and May Sena, Defense Logistics Agency. GAO attorneys Heather Self and Edward Goldstein participated in the preparation of the decision.
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