Link: GAO Decision
Protestor: Environmental Quality Management, Inc.
Agency: Environmental Protection Agency
Disposition: Protest Denied.
Protest that agency improperly provided awardees–but not protester–competitively useful information during ongoing acquisition is denied, where awardees were provided appropriate information during initial, pre-award debriefing (after their initial exclusion from the competitive range), and subsequently (after awardees’ readmission into competitive range), agency conducted appropriate discussions tailored to each firm’s proposal.
General Counsel P.C. Highlight:
Environmental Quality Management, Inc. (EQM) protested the award to Environmental Restoration, LLC (ER) and Kemron Environmental Services, Inc. of contracts for emergency rapid response services. The agency received nine proposals, three of which were included in the competitive range, including EQM’s but neither ER nor Kemron’s proposals. ER and Kemron requested debriefings following their exclusion, in which the agency relied on a “script” with some largely identical elements to inform ER and Kemron that their exclusion was due to their respective high prices. ER and another offeror protested the elimination of their proposals from the competition, in response to which the agency took corrective action, adding ER and Kemron to the competitive range. The agency then engaged in several rounds of discussions, during which it asked ER and Kemron if they could propose any reduced rates.
The GAO disagreed with EQM’s assertion that the agency improperly provided both awardees with competitively useful information during their pre-award debriefings and again during discussions. EQM argued that the agency should not have informed the awardees that their technical proposals were “fine” but that their prices were high in comparison to the other competitive firms. The GAO pointed out that discussions must be meaningful, leading offerors into those areas of their proposals requiring amplification or revision. The GAO noted that the agency’s discussions with ER and Kemron were limited to pricing, which was the significant weakness in both awardees’ proposals; the agency’s discussions with EQM were similarly tailored to its proposal.
Offerors must remember that when an agency elects to engage in discussions with competitive offerors, those discussions must be “meaningful,” but they do not necessarily need to be identical. The offerors still under consideration may have strengths and weaknesses in different portions of their proposals, and the agency will tailor its questions to guide each offeror to the shortcomings remaining in their proposal. The mere fact that one offeror is asked a different question than others is not sufficient grounds, without more, for protest.