Link: GAO Opinion
Agency: U.S. Army Corps of Engineers
Disposition: Protest dismissed.
General Counsel P.C. Highlight: Where the RFP fails to state whether discussions will be held or may not be held before award, there is no requirement that discussions actually be held before the agency makes an award.
Kiewit Louisiana Company (Kiewit) protests the award of a contract under a request for proposals (RFP) issued by the U.S. Army Corps of Engineers for construction of improvements to the levee and floodwalls at the Causeway Bridge in Jefferson Parish, Louisiana.
The RFO advised that the agency would make award on a “best value” basis considering price and several non-price considerations. The RFP did not indicate whether the agency intended to conduct discussions. Kiewit’s proposal received a marginal rating under the technical approach/key personnel factor for failure to include certain demolition work and the agency awarded the contract to another offeror without discussions.
GAO states that an agency’s intent with regard to discussions is required to be expressed in the solicitation. The Competition in Contracting Act (CICA) requires “either a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions…”
Kiewit asserts that since the RFP was silent on the issue of discussions, the agency was required to conduct discussions by default. GAO finds no basis for finding that the agency was required to conduct discussions given the RFP’s silence on the point where Kiewit cites no statutory or regulatory provision, and GAO is aware of none, that establishes such a default rule. Under GAO’s Bid Protest Regulations, protests based on improprieties apparent on the face of a solicitation must be filed prior to the deadline for submitting proposals. Here, it was apparent that the RFP did not include one of the two alternate clauses required to be included in the RFP to advise offerors of the agency’s intention regarding discussions. Kiewit’s assertion that discussions were required had to be raised, if at all, prior to the closing time for receipt of initial proposals. Since Kiewit did not protest prior to the closing time, its assertion that the agency was required to engage in discussions is untimely, and will not be considered. The protest is dismissed.