Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest sustained.
General Counsel P.C. Highlight: Where an agency, during a reevaluation of proposals, identifies new concerns in a proposal and those concerns would have had to be raised had they been identified before discussions were held, the agency is required to reopen discussions and raise the new concerns with the offeror.
The Department of the Navy (Navy) issued a request for proposals (RFP) for the design and construction of a rotor blade processing facility. Ewing Construction Co., Inc. (Ewing) was an unsuccessful bidder and argues that the Navy failed to conduct meaningful discussions and failed to reasonably evaluate proposals.
The RFP provided for the award of a fixed-price contract for the design and construction of an addition to an existing building. Procurement was to be conducted in two phases. In phase I, the agency would evaluate proposals under evaluation factors, including past performance and corporate experience. The offerors that were invited to participate in phase II were required to submit technical and price proposals. The solicitation stated that discussions may be held and it required that if a deficiency was found in a proposal, the offeror would be considered ineligible unless the deficiency was corrected through discussions.
Ewing succeeded to phase I, but was then, during discussions in the phase II evaluation, notified that its phase II proposal contained significant weaknesses under the technical solution factor where Ewing’s “proposed roofing system does not meet the requirements of the RFP.” In response to discussions, Ewing submitted a final revised proposal, including responses to the discussion questions posed by the Navy, explaining why it believed its proposed roof design would meet agency requirements. When Ewing lost the award in 2009, Ewing protested. In response to the protest, the agency took corrective action by reevaluating Ewing’s proposal, but did not reopen discussions. On re-evaluation, the Agency found Ewing’s roof design to be a deficiency and thus ineligible for award. It chose not to reopen discussions and affirmed its prior award.
GAO states that, where an agency, during a corrective action reevaluation of proposals, identifies new concerns in a proposal and those concerns would have had to be raised had they been identified before discussions were held, the agency is requires to reopen discussions and raise concerns with the offeror. Here, before taking corrective action, the agency raised concerns regarding the roofing system, but during the reevaluation, the agency never reopened discussions with Ewing after it received another deficient rating for its proposal.
GAO concludes that since the agency’s concerns with Ewing’s proposed approach changed during reevaluation to the point that, should they remain unaddressed, the proposal would be reflected as ineligible for award, the agency was required to reopen discussions. GAO sustained the protest and recommended that the agency reopen discussions, request new final proposal revisions, and make a new source selection decision.