In the latest Weekly Wright Report:
Protest Sustained Because Discussions Were Not Meaningful
In this case the GAO sustained a protest because the agency’s discussions with the bidder were found not to be meaningful. The case is Matter of: BC Site Servs., LLC, B-420797.4 (2023). BC Site Services, LLC (BCSS), is a small disadvantaged business from Georgia that bid on a solicitation issued by the Department of the Army, Corps of Engineers (USACE) for construction in Texas. The USACE issued the RFP with a portion of the awards reserved for small businesses. The solicitation contemplated award of indefinite-delivery, indefinite-quantity (IDIQ), multiple-award task order contracts for 8-year terms. The RFP stated that the USACE intended to award a target of 15 task orders with the target of five (5) awards to Small Businesses for the Small Business Reserve. The total value for the entire pool of contracts was up to $7 Billion.
The agency received 36 proposals, including one from BCSS under the small business reserve standards. The agency contacted nine of the offerors, including BCSS, providing them with “Evaluation Notices” for the offerors to address. The agency identified 10 unrestricted offerors and 9 small business reserve offerors as the most highly rated, not including BCSS to move on to the next phase of the evaluations.
BCSS filed a protest challenging the agency’s evaluation and exclusion of BCSS from the competition. In response, the agency conducted a new evaluation of BCSS’s proposal and made a new select decision. However, the agency again did not include BCSS in the most highly rated offerors. BCSS again filed a protest raising several grounds, however, only the discussion issue was the ground for sustaining the protest.
To begin the GAO discussed the difference between “exchanges” and “discussions” under the FAR. The FAR describes a range of “exchanges” that may take place when the agency decides to conduct exchanges with offerors during negotiated procurements. Section 15.306(b)(2) of the FAR permits communications with offerors prior to the establishment of a competitive range that enable the government to obtain information necessary to enhance the government’s understanding of proposals; allow reasonable interpretation of the proposal; or facilitate the government’s evaluation process. This same FAR section also states that such communications 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. Id.
“Discussions,” on the other hand, “occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect.” The GAO noted that “it is the actions of the parties that determines whether discussions have been held and not merely the characterization of the communications by the agency.” In situations where there is a dispute regarding whether communications between an agency and an offeror constituted discussions as was true in this case, “the acid test is whether an offeror has been afforded an opportunity to revise or modify its proposal.” Ranger Am. of the Virgin Islands, Inc., B-418539, B-418539.2, June 11, 2020, 2020 CPD ¶ 194 at 9. The GAO reviewed the record and concluded that the agency asked one of the other small businesses to provide essential information necessary for the agency to determine the acceptability of the offeror’s proposal and certain offerors were provided with an opportunity to revise proposals by submitting additional material information for inclusion in their proposals in order to make their proposals acceptable. Accordingly, the GAO concluded, as a threshold matter, that the agency had engaged in discussions.
Because, the agency conducted discussions and availed itself of negotiated procedures under FAR part 15, the agency was obligated to afford all offerors in the competition an opportunity to engage in meaningful discussions. International Waste Indus., B-411338, July 7, 2015, 2015 CPD ¶ 196 at 5; ERIE Strayer Co., B-406131, Feb. 21, 2012, 2012 CPD ¶ 101 at 4. “To be meaningful, discussions must lead the offeror into those areas of its proposal that require modification, amplification, or explanation.” DynCorp Int’l LLC, B-409874.2, B-409874.3, May 13, 2015, 2015 CPD ¶ 348 at 6. “At a minimum, the agency must discuss all deficiencies, significant weaknesses and adverse past performance information to which the offeror has not had an opportunity to respond.” Sunglim Eng’g & Constr. Co., Ltd., B-419067.3, Aug. 6, 2021, 2021 CPD ¶ 278 at 5. In connection with the requirement that discussions be meaningful, offerors may not be treated unequally and discussions must be tailored to each offeror’s proposal.
With respect to BCSS, the agency communication was limited to asking BCSS to confirm its corporate organization as a limited liability company and to submit the associated articles of organization and operating agreement. The record revealed that the agency identified information missing from BCSS’s proposal, but the agency did not raise the issues with BCSS. The GAO found that the agency did not conduct meaningful discussions with BCSS or allow BCSS to submit a revised proposal. Thus, the GAO held that the agency’s conduct of discussions was unequal and therefore improper and it sustained BCSS’s protest.
The take-away here is be sure discussions were meaningful. If your bid was not successful, but the government engaged in discussions, be sure to determine if the reasons your bid was not successful were raised in those discussions, such that you had a reasonable and fair chance to respond. To be meaningful, discussions must lead the offeror into those areas of its proposal that require modification, amplification, or explanation and the agency must discuss all deficiencies, significant weaknesses and adverse past performance information to which the offeror has not had an opportunity to respond.
If you have any questions regarding the matters addressed herein, please contact any member of the WCS Government Contracts practice group.