Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
1. Protest that agency improperly found proposal unacceptable is denied where record shows that proposal never demonstrated–initially, during discussions, or in final proposal revision–compliance with material solicitation requirement.
2. Protest that agency misled protester during discussions is denied where there was no reasonable basis for protester to assume, based on agency’s silence in subsequent discussions, that its proposal was acceptable or that it should submit information in a manner inconsistent with express requirements of solicitation.
General Counsel P.C. Highlight:
The RFP’s system requirements document (SRD) provided that the proposed CPS must have a minimum of 15,000 hours mean time between operation mission failure (MTBOMF) at an ambient temperature of 25 degrees Celsius (C) under normal operating conditions. Argon argues that the agency unreasonably determined that its proposal did not establish compliance with the MTBOMF requirement. GAO states that in considering protests challenging the evaluation of proposals, it will not reevaluate proposals; rather, GAO will examine the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations.
GAO finds that the agency reasonably concluded that Argon’s proposal did not establish compliance with the MTBOMF requirement. It is undisputed that Argon’s initial proposal contained no information whatsoever relating to the ability of its CPS to meet the solicitation’s MTBOMF requirement. Argon’s response to the ensuing discussion questions included an estimate of MTBOMF expressed in terms of hours ([deleted]), but was silent as to the temperature at which the estimate could be achieved. The agency appears to have considered this information sufficient, but any such conclusion was unwarranted, since MTBOMF was not expressed in terms of number of hours at the specified temperature of 25C. The information thereafter provided by Argon in its FPR was similarly noncompliant with the requirements of the RFP; the MTBOMF hourly figure ([deleted]) failed to meet the minimum requirement of 15,000 hours, and was expressed at a temperature (55C) that was outside the specified operating parameters for the CPS.
Argon maintains that any inadequacy of the MTBOMF information it provided was the result of its being misled by the agency regarding its MTBF information during discussions. GAO states that this argument is without merit. Discussions, when held, must be meaningful; that is, they must lead offerors into those areas of their proposals requiring amplification or revision, and may not prejudicially mislead the offeror. However, agencies are not required to engage in successive rounds of discussions until all proposal defects have been corrected, nor are agencies required to reiterate concerns that were not alleviated by a firm’s proposal revisions. Where an agency engages in initial discussions that lead an offeror to revise its proposal, the agency’s subsequent silence in connection with those proposal revisions during a subsequent round of discussions cannot reasonably be understood as an indication that the agency determined that the initial weakness or deficiency was cured.
Here, under the circumstances, there was no reasonable basis for Argon to interpret the agency’s silence regarding the MTBF data as a waiver of the plainly stated RFP requirements regarding MTBOMF. Simply stated, since the RFP clearly required MTBOMF information to be presented in terms of a particular temperature, and the RFP was not amended in this regard, Argon was required to provide the information in those terms. To the extent Argon chose to rely on its impressions from the agency’s silence instead of complying with the RFP’s clear requirements, it did so at its peril. The protest is denied.