Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest sustained.
In implementing corrective action in response to a protest, agency improperly limited discussions to requesting information to show that a proposed key position complied with the solicitation requirements, where the discussions did not provide the protester with the opportunity to become more competitive through meaningful discussions by allowing it to address significant weaknesses or deficiencies found in its proposal.
General Counsel P.C. Highlight:
Following a prior protest and corrective action on behalf of the Army, AK-9 challenges the agency’s decision to limit discussions to the kennel master/project manager requirement (KM/PM), arguing that this resulted in the discussions being unfair and not meaningful. GAO states that when an agency conducts discussions with one offeror, it must conduct discussions with all other offerors whose proposals have been found in the competitive range. Moreover, discussions should be meaningful, equitable, and not misleading. That is, discussions, at a minimum, must be in sufficient detail to indicate to each offeror whose proposal remains in the competitive range deficiencies, significant weaknesses, or adverse past performance information to which the offeror has not yet had an opportunity to respond. At the conclusion of discussions, each offeror still in the competitive range shall be provided an opportunity to submit a final proposal revision. In this regard, offerors, in response to an agency request that discussions be opened or reopened, generally may revise any aspect of their proposals they see fit–including portions of their proposals which were not the subject of discussions.
The exchanges with EODT regarding its KM/PM were undeniably discussions, given that the agency indicated that this was a “deficiency” and does not deny that without EODT’s modification to its proposal its proposed KM/PM did not comply with the RFP requirements. As noted by the agency, as a general matter, the details of a corrective action are within the sound discretion and judgment of the contracting agency. Moreover, in appropriate circumstances where the agency has established a reasonable basis for doing so, GAO has not objected to an agency’s decision to limit discussions under a negotiated procurement in implementing corrective action in response to a protest. Here, the agency states that the “discovery of two identical weaknesses in EODT’s and AK-9’s proposals prompted the contracting officer to enter into discussions with both offerors to address those concerns.” The agency went on to state that it did not allow “broader revisions” because EODT’s prices had been disclosed, and the agency did not want to give one offeror an unfair competitive advantage over another. GAO finds that the agency’s limitation on discussions was unreasonable and inappropriate. This limitation failed to account for other significant weaknesses or deficiencies found in the proposals and thus constituted unequal, not meaningful, discussions. Specifically, the record indicates that the limited discussions were primarily to allow EODT to fix its otherwise unacceptable proposal and did not similarly provide AK-9 with the opportunity to become more competitive through meaningful discussions. The protest is sustained.