Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Friday, February 7, 2014, 4:10pm EST
Science Applications International Corporation, B-408307.2, January 27, 2013
We have previously discussed the issue of discussions, and that when an agency holds discussions with offerors, those discussions must be meaningful. To be meaningful, the agency must at least identify the area of an offeror’s proposal that is deficient. But what about a situation where a deficiency in an offeror’s proposal is not discovered until after discussions are concluded?
GAO recently addressed this issue in its decision in the protest of Science Applications International Corporation. This protest involved a solicitation issued by the Dept. of the Navy for the engineering, development, and manufacturing of common array block antennas. Offerors were instructed to provide a basis of estimate for each contract line item number (CLIN) in the solicitation, which included all underlying assumptions relating to the work to be performed. The protester received numerous discussion questions in response to its proposal, none of which pertained to its cost proposal or related assumptions.
Following this round of discussions, the agency amended the solicitation to include additional CLINs. Along with the solicitation amendment, the agency requested final proposal revisions (FPRs) from the offerors in the competitive range, including the protester. The protester submitted an FPR, along with a new assumption. The agency reviewed the protester’s FPR, and concluded that the new assumption rendered the protester’s proposal non-compliant with the terms of the solicitation, and thus was ineligible for award. As a result, the agency did not consider the protester’s proposal in its best value analysis.
In its protest to GAO, the protester challenged its exclusion from the best value analysis arguing that the agency’s discussions were not meaningful. The protester argued that the new assumption in its FPR, which led the agency to determine the proposal ineligible for award, was essentially the same as an assumption made in its initial proposal. According to the protester, if the agency had an issue with the new assumption in the FPR, it should have raised that concern during discussions regarding the similar assumption made in the initial proposal. Because the agency’s discussions failed to identify such a deficiency, the protester argued that the discussions were not meaningful.
GAO disagreed with the protester, finding that while the two assumptions at issue were somewhat similar, they were not identical. The assumption in the initial proposal related to pre-production work, whereas the assumption in the FPR related to production work. Because the two assumptions were different, the agency did not discover the deficiency in the protester’s proposal leading to its ineligibility until after the submission of the FPR, which came after the conclusion of discussions.
GAO stated that an agency is not required to reopen discussions with an offeror based on issues raised for the first time after discussions have concluded. As a result, GAO found reasonable the agency’s rejection of the protester’s proposal based on the assumption made in the FPR. Thus, the protest was denied.