Link: GAO Decision
Protestor: ERIE Strayer Company
Agency: Department of the Air Force
Disposition: Protest Sustained.
Protest that agency should have requested clarifications from protester is sustained, where the record demonstrates that the agency improperly conducted discussions only with the awardee.
General Counsel P.C. Highlight:
ERIE Strayer Company protested the award to RexCon LLC of a contract for a mobile concrete plant at Nellis Air Force Base, Nevada. ERIE argued that the agency improperly evaluated its proposal as unacceptable and that it should have requested clarifications from ERIE. RexCon’s proposal was initially evaluated as unacceptable; after a phone call and emailed questions between the agency and RexCon, RexCon’s proposal was evaluated as technically acceptable. The agency conducted no such “clarifications” with ERIE.
The GAO disagreed with the agency’s assertion that its exchange with RexCon involved clarifications, not discussions that should have been conducted with all offerors. The GAO pointed out that two of RexCon’s answers to the agency’s questions resulted in material changes to its proposal; it viewed the agency’s questions as effectively being discussions. It found that ERIE was prejudiced by the lack of discussions, as several of the grounds for which ERIE’s proposal was deemed unacceptable could have been corrected through discussions.
Agencies are required to treat all offerors fairly and reasonably during negotiated procurements. If an offeror is not provided the same opportunity to engage in discussions with the agency, that offeror has grounds for protest if they were prejudiced by that missed opportunity.