Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Thursday, March 13, 2013, 11:59am EST
Nexant, Inc., B-407708; B-407708.2, January 30, 2013
There is the old adage that “there are no stupid questions.” While that statement may perhaps be true, in government contracts there are certainly bad questions. This was evident in the recent protest decision issued by the Government Accountability Office on January 30, 2013. In this protest, Nexant, Inc. challenged an award decision made by the United States Agency for International Development under a Request for Proposals issued April 12, 2012. The RFP sought to establish a private financing advisory network in Asia. Nexant made several allegations in its protest, which was ultimately sustained by GAO on three grounds: (1) the agency failed to conduct meaningful discussions, (2) the agency’s evaluation of technical proposals was unreasonable, and (3) the agency’s selection decision was unreasonable. It is the issue of the discussions held by the agency which presents evidence of bad questions in government contracting.
In this case, the RFP divided the requirements among five mandatory tasks and one optional task. After receiving offers, the agency established a competitive range, and engaged in discussions with the competitive range offerors, of which Nexant was included. The agency’s discussions with Nexant focused on the optional task from the RFP—Optional Task 6. GAO noted that the agency’s evaluators found the following weaknesses in Nexant’s proposal:
Nexant failed to understand that Optional Task 6 is designed to support focused country-level PFAN activities in any country, not just countries in South Asia. Thus, Nexant did not provide any creative ideas on leveraging sufficient resources and partnerships to engage South Asia as part of the overall program rather than relying entirely on Optional Task 6 resources….
Simply put, the agency found a weakness in Nexant’s proposal for two specific reasons: (1) Nexant did not understand that Optional Task 6 was not limited to South Asian countries, and (2) Nexant did not provide any creative ideas related to Optional Task 6. In an effort to address this weakness, the agency during discussions posed the following to Nexant: “Please clarify Nexant’s overall understanding [of] Optional Task 6.” This was a bad question.
When conducting discussions with an offeror, an agency is required to identify deficiencies and significant weaknesses in an offeror’s proposal. The purpose of discussions is to allow offerors to address these deficiencies and significant weaknesses to materially enhance its chance at receiving an award—not to mention provide a better product to the government. The agency has to frame its discussion questions in a way to allow the offeror to actually respond to the significant issues. The agency cannot mislead an offeror into providing answers immaterial to the deficiencies and weaknesses found in its proposal, which is exactly what the agency did in this case.
Nexant’s response to the agency’s question merely expanded on its response to Optional Task 6 contained in its proposal. Because the agency’s question did not actually address the perceived weaknesses, Nexant’s answers did not address them either. Not surprisingly, the agency found that the Optional Task 6 weakness remained in Nexant’s proposal, and considered the perceived weakness in the source selection decision. Nexant argued, and GAO ultimately agreed, that the agency’s discussion question was misleading because it failed to give Nexant an opportunity to address the agency’s actual issues with its proposal. GAO found that Nexant was prejudiced by the agency’s misleading discussions, and sustained the protest.
Where there is a disconnect between questions asked by an agency during discussions and deficiencies and/or weaknesses found in an offeror’s proposal, an offeror has valid grounds to protest. The protester has a good chance of success if it can demonstrate, as in the Nexant case, that the agency’s discussions were misleading, and prevented a proper response to the agency’s concerns with its proposal.