Link: GAO Opinion
Agency: Department of Labor
Disposition: Protest denied.
Keywords: Negotiations; Discussions
General Counsel P.C. Highlight: An agency is not obligated to reopen negotiations to give an offeror the opportunity to remedy a defect that first appears in a revised proposal.
Applied Technology Systems, Inc. (ATSI) protests the Department of Labor’s (DOL) award of a contract pursuant to a request for proposals (RFP), for operation of the Westover Job Corps Center in Massachusetts.
The RFP sought proposals to perform a cost-plus-incentive-fee contract to “provide material, services, and all necessary personnel to operate” the Job Corps Center. The solicitation provided that, following submission and evaluation of initial proposals, the agency would make a competitive range determination and that offerors within the competitive range could be required to make oral presentations. The solicitation contained three questions that offerors would be required to address during their oral presentations. These questions were revised and supplemented in a subsequent amendment.
The agency opened discussions with ATSI and advised the company that it had concerns regarding various matters and provided a list of questions and requests for information regarding these concerns. ATSI made its oral presentation to the agency. However, ATSI did not address the revised and additional questions contained in the RFP amendment. As a result, ATSI’s oral presentation received an “unsatisfactory” rating. The agency gave ATSI a chance to address the omitted questions in its final proposal revision (FPR). Although ATSI acknowledged multiple negative aspects of its proposal, the agency ultimately chose another offeror.
ATSI challenges the agency’s identification of various weaknesses in its proposal with regard to the past performance/experience evaluation factor. GAO states that the evaluation of past performance, including the agency’s assessments regarding relevance, scope, and significance of the offeror’s performance history, is a matter of agency discretion, which GAO will not disturb unless those assessments are unreasonable, inconsistent with the solicitation criteria, or undocumented. Further, an agency’s past performance evaluation may be based on a reasonable perception of inadequate prior performance, regardless of whether the contractor disputes the agency’s interpretation of the underlying facts or significance of those facts. Finally, a protester’s mere disagreement with the agency’s assessment is not sufficient to establish that the agency acted unreasonably. GAO’s review of the record found many undisputed statements regarding ATSI’s negative past performance history under prior Job Corps contracts.
ATSI also complains that the agency’s question regarding corporate oversight was “ambiguous,” that ATSI misunderstood the question, and that the agency “should have reopened discussions.” GAO states that when an agency engages in discussions with an offeror, the discussions must be meaningful, that is, they must lead the offeror into the areas of its proposal that require correction or additional information. However, an agency is not obligated to reopen negotiations to give an offeror the opportunity to remedy a defect that first appears in a revised proposal.
Here, the agency first advised ATSI of the requirement to address corporate oversight in the RFP amendment. ATSI provided its oral presentation, but states that it “was previously unaware” of the amended solicitation’s requirements to explain its approach. The agency then provided written discussion questions, specifically repeating its request that ATSI address its proposed corporate oversight, and warning ATSI to make sure that its “FPR is complete since the [agency] intends to make award without obtaining any further revisions.” GAO finds that the agency clearly provided ATSI with a meaningful opportunity to fully discuss its proposed corporate oversight and ATSI did not. The protest is denied.