Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, June 15, 2012, 1:05pm EDT
Often there is not a clear consensus between an agency’s program staff and the contracting staff on what is actually being solicited, and confusion during discussions can lead bidders down the incorrect path. Seek clarity and don’t be afraid to protest if misled.
Protesting contractor: KPMG LLP, McLean
Contracting agency: Central Intelligence Agency
Protest issue: Treating offerors equally during discussions.
Post-mortem: The solicitation for accounting and financial services is indicative of many I see. There is a certain amount of vagueness that leaves the offerors without clear guidance as to what is actually required.
In this case, it was unclear as to the level of personnel effort that should be proposed over the entire contract period. KPMG protested two issues related to this issue. First, KPMG argued that the CIA conducted misleading discussions, instructing the company to provide personnel resumes “for all personnel proposed over the lifespan of the contract.” As a result, it didn’t reduce the level of personnel over the course of the contract, as originally planned. Deloitte & Touche LLP was not similarly directed and as a result continued to propose a reduction in personnel, stating that “it is very difficult to provide resumes of specific individuals that we plan to transition into the contract.”
The GAO found that this constituted misleading discussions and was the reason Deloitte was able to propose lower cost. KPMG also argued that the CIA failed to conduct adequate cost realism analysis, since there was no consideration of when or even if Deloitte intended to transition to lesser experienced and therefore cheaper personnel. GAO agreed.
Here, both offerors followed what they reasonably believed where the instructions included in the solicitation discussions. Both provided very good proposals, which were equally rated in all areas except for price. While no contractor should protest for protest’s sake, this case highlights the value of the GAO bid protest process for ensuring a fair shake.