Government Contracts Rejection of Proposal for Failure to Provide Password Unreasonable
Friday, May 31, 2019

Rejection of Proposal for Failure to Provide Password Unreasonable

By Government Contracts Editorial Staff

A protest of a Phase 1 evaluation was sustained because the government unreasonably rejected the protester’s proposal as unacceptable. The request for proposals for information technology solutions and services stated offerors would be “subject to a responsibility evaluation” and must “demonstrate that [they have] the necessary financial capacity, working capital, and other resources to perform the contract ….” The RFP also stated that if teaming partners did “not want to share [their] proprietary financial information with the prime,” the offeror could submit the information as encrypted files and instruct the partner to email the decryption password to a government help desk. The protester’s proposal included an encrypted copy of its teaming partner’s financial statement, and it maintained the partner emailed the password to the government’s help desk prior to the proposal due date. Nevertheless, the government found the proposal unacceptable for failure to provide a decryption password prior to the closing date. The parties disputed whether the partner provided the password prior to the proposal due date.

Responsibility Issue. The Comptroller General explained that the financial statement related to responsibility and was therefore a matter that could be satisfied any time prior to award. The government reasonably viewed the failure to provide a password as tantamount to a failure to provide the underlying document itself, and it did not have an obligation to request additional information regarding the financial statement. However, since the financial statement related to responsibility, the government was permitted to request and consider the decryption password, even if that password was not received prior to the proposal due date. The issue, therefore, was whether the government reasonably refused to consider the information because it was not received by the solicitation’s closing date.

CO Had Password. If the government had never received the decrypted password prior to evaluation, it could have rejected the protester’s proposal because it did not contain the required documents and therefore failed to meet a proposal criterion. However, the record showed that prior to award, the contracting officer sent an email to the protester requesting clarification, received an email from the teaming partner with the password, and specifically acknowledged that he had received the email with the password. “Under these circumstances, … the [CO]—the individual charged … with making responsibility determinations—could not ignore the password in his possession on the grounds that the RFP required the password to be provided via email to the … help desk.” As a result, the government’s actions were not reasonable. The Comptroller General recommended the government use the password to decrypt the document and evaluate the protester’s proposal. (Chags Health Information Technology, LLC, 34 CGEN ¶116,369)

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