Link: GAO Opinion
Agency: General Services Administration
Disposition: Protests denied.
Keywords: Proposal Acceptability; Clarifications; Discussions
General Counsel P.C. Highlight: RFP technical requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is technically unacceptable and may not form the basis for award.
The GSA Public Buildings Service issued an RFP for the construction of a new federal courthouse in Billings, Montana. The RFP was a two staged, design and build competition. Under phase I, the agency sought submissions from interested firms to determine which qualified firms would be invited to provide technical and price proposals under phase II. Under Phase I, the GSA received 20 proposals and selected six offerors to move to the final Phase II of the competition, including Sletten and M.A. Mortenson, the eventual awardee.
The Phase II RFP provided for award on a best value basis and identified the following technical evaluation factors in descending order of importance: design concept, no-cost test fit, and project management plan. The technical factors were considerably more important than price. The RFP required offerors to provide specific design elements and to include site plans, scaled drawings and included space requirements for court personnel and various other tenant agencies, such as the United States Marshal Service, Executive Office of the United States Attorney, United States Probation Office and the GSA Public Building Service.
The technical evaluation team found Sletten’s proposal did not comply with a number of solicitation requirements, including that Sletten did not submit scalable drawings of the site plan, failed to provide mandatory BOMA space calculations on the drawings, and submitted floor plans that were missing required items. After submission of proposals, Sletten notified the agency that its proposal contained errors in the space allocation and submitted revised space allocations. The technical evaluators found that the revised space allocations were inconsistent with other parts of the proposal and could not be verified because the proposal failed to include some required drawings. Sletten’s proposal was evaluated as “marginal,” but included a proposed price that was approximately 10% less than Mortenson’s price. The Agency judged that all offerors’ proposals would require extensive revision to become compliant with the RFP requirements except for Mortenson’s. The Agency judged that Mortenson’s proposal met the RFP requirements, offered a fair and reasonable price, and was thus selected to be the best value for the government. Following award to Mortenson, Sletten protested.
Sletten challenged its technical evaluation and the Agency’s failure to engage in either clarifications or discussions. The GAO noted that clearly stated RFP technical requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is technically unacceptable and may not form the basis for award. The record in this case shows that Sletten’s proposal did not comply with a number of solicitation requirements, which the source selection officials found to be proposal deficiencies.
Sletten also argued that its proposal deficiencies could have been cured by clarification questions from the evaluators. “Clarifications” are limited exchanges between the government and offerors that may occur when award without discussions is contemplated. Such communications with offerors, however, may not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or otherwise revise the proposal. Because Sletten’s proposal deficiencies could be cured only by substantial proposal revisions, Sletten would have required discussions, not mere clarifications to become acceptable. The RFP put offerors on notice that the Agency intended to make award without discussions unless the agency deemed that discussions were deemed necessary. Such discussions were not necessary in this case because Mortenson submitted an acceptable proposal with a fair and reasonable price. The agency exercised its discretion not to open discussions and made award to Mortenson. Such an award was proper and reasonable, and therefore GAO denied Sletten’s protest.