What are the rules on unsolicited proposals?

A company official raised the following topic: We believe that our company has some innovative ideas that we'd like to offer the government. What are the rules on submitting unsolicited proposals to government agencies?

The rules on unsolicited proposals primarily are found in Federal Acquisition Regulation Subpart 15.6. According to FAR 15.601, an unsolicited proposal is "a written proposal for a new or innovative idea that is submitted to an agency on the initiative of the offeror for the purpose of obtaining a contract with the government."

A proposal submitted in response to a government solicitation or program cannot be considered an "unsolicited proposal." Furthermore, the definition excludes advertising materials, most offers of commercial items, and concepts, suggestions and ideas that are presented to the government without any indication that the source intends to devote further effort to them on the government's behalf, according to FAR 15.603(b).

To be a valid submission, according to the FAR, an unsolicited proposal must be:

Innovative and unique.

Independently originated and developed by the offeror.

Prepared without government supervision, endorsement, direction or direct government involvement.

Include sufficient detail to permit a determination that government support could be worthwhile and the proposed work could benefit the agency's research and development or other mission responsibilities.

Not be an advance proposal for a known agency requirement that can be acquired by competitive methods.

Most of the reported cases of unsolicited proposals involve agency claims that a submission does not meet these criteria. For example, in Technical Assessment Systems Inc. (B-242436, May 3, 1991, 91-1 CPD : 432), the General Accounting Office agreed with the Environmental Protection Agency that letters from a company offering computer software for sale did not constitute an unsolicited proposal.

Before accepting an unsolicited proposal, an agency must evaluate the merits of the proposal and its potential contributions to the agency's mission. The agency also must evaluate the offeror's capabilities, related experience, facilities and other attributes, and the realism of the proposed cost, according to FAR 15.606-2. The agency also must be able to justify and approve the acquisition under one of the specific exceptions to the general requirement to obtain full and open competition in all government procurements, according to FAR 15.607.

Even a favorable evaluation does not guarantee the award of a contract. An offeror cannot compel the agency to award a contract on the basis of an unsolicited proposal because the determination to award a contract is vested in the agency's discretion. Refer to S.T. Research Corp. (B-231752, Aug. 16, 1988, 88-2 CPD : 152).

If an unsolicited proposal is rejected, the agency must promptly inform the offeror of the reasons for the rejection in writing, according to FAR 15.606-1(c). The agency also must return the proposal or properly dispose of it.

In no event may government personnel use any data, concept, idea or other part of an unsolicited proposal as the basis for a solicitation or in negotiations with any other firm unless the offeror is notified and agrees to the intended use, according to FAR 15.608. In Metric Systems Corp. (B-271578, July 9, 1996, 96-2 CPD : 8), GAO determined that a brochure submitted to the Air Force by Metric Systems was not an unsolicited proposal. Accordingly, the Air Force did not violate any rules when it disclosed information from the brochure in a public document. According to GAO, the brochure, which had been submitted without any apparent restrictions on its use or disclosure, was marketing information that the agency was not obligated to protect. To avoid such problems, companies that wish to submit potentially proprietary information to an agency should mark them with an appropriate legend that notifies the agency that the materials must not be released outside the government.

Peckinpaugh is a member of the government contracts section of the law firm of Winston & Strawn, Washington, D.C.

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