Link: GAO Opinion
Agencies: U.S. Army Corps of Engineers
Disposition: Protest denied.
Keywords: Individual Environmental Report
General Counsel, P.C. Highlight: Information obtained by the Agency after discussions have closed need not be the subject of further discussions unless explicitly required by the RFP.
M. Matt Durand, LLC protested the rejection of its proposal under a request for proposals (RFP) issued by the U.S. Army Corps of Engineers. In this low priced-technically acceptable procurement for services and supplies related to delivery of earthen clay material (fill dirt) for improving the Greater New Orleans Area Hurricane and Storm Damage Risk Reduction System.
Each offeror had to explain where they expected to obtain the fill dirt (called the “borrow site”) and whether the removal would cause any environmental or cultural impact. The acceptability of an offeror’s borrow site and whether it would have an environmental or cultural impact was a technical evaluation subfactor under the RFP.
Initially, Durand’s explanation was found to be technically acceptable and thus was not the subject of discussions, which the Corps held will all offerors, including Durand. Subsequently, the Corps solicited comments from other interested parties, including Indian tribes and Mississippi State officials. These parties advised the Corps that they had several concerns regarding Durand’s proposed site, especially its cultural impact. The Corps then advised Durand that its borrow site was not acceptable because of these concerns and, consequently, Durand’s revised proposal “is considered unacceptable.” Durand contended in this protest that the Corps conducted unequal discussions and unreasonably eliminated its proposal from the competitive range.
Durand asserted that the Corps should have contacted Indian tribes and other interested entities prior to opening discussions, so that these concerns could have been included in discussions. But, the GAO noted that the RFP clearly contemplated that offerors’ proposed borrow sites would be reviewed twice: first in the evaluation of proposals, and subsequently with regard to environmental and cultural impact. The agency’s actions were found to be consistent with the RFP in this regard and thus the discussions were considered equal and fair.