Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, April 20, 2012, 12:56pm EDT
Discussions in negotiated procurement are encouraged to create more competition and to get the taxpayer a better product for a lower price. Nonetheless, it is one of the most heavily protested issues.
Protesting contractor: General Dynamics Information Technology Inc., Fairfax
Contracting agency: Department of the Army
Protest issue: Contracting Officers must be fair and thoroughly document their decisions.
GAO decision, March 30, 2012: Denied.
Post-mortem: GDIT raised two allegations in its protest of the Army award to NCI Inc. in Reston: First, that the Army should not pay such a premium to NCI, whose bid was 19 percent higher (I wrote about this issue just a few weeks ago); and second, that the Army had unequal discussions which gave a competitive advantage to NCI.
Discussions are not required, but when they take place the GAO has found repeatedly that they must be equal and should be tailored to each offeror’s proposal. But discerning what is equal when each offeror’s proposal presents completely different weaknesses is difficult both for the agency and the GAO.
In this case, GDIT felt NCI received special treatment from the Army, which informed NCI that its price was high. While GDIT was informed of some of its own weaknesses, the company still alleged that the Army did not do enough to point out areas where improvements could be made. GAO disagreed, finding that the Army had complied with the law and treated NCI and GDIT fairly and equally.
Where the GAO has sustained protests alleging unequal or misleading discussions it has usually been where the contracting officer simply failed to document the reasoning behind the decision. In this case the Army thoroughly documented its evaluation and the reasoning behind its best value trade off, and why it tailored discussions for each offeror the way it did.
According to the GAO in this case, the contracting officer has “broad discretion” in how it evaluates best value trade off and the content of discussion is “largely a matter of the contracting officer’s judgment.” If that discretion and judgment is exercised fairly and is well documented the GAO will seldom disturb the award. Therein lies the lesson for the contractor.