This month’s Bid Protest Roundup focuses on three recent protests from the Government Accountability Office (GAO). The first protest involves discussions in the context of corrective action, the second pertains to the distinction between clarifications and discussions, and the third relates to an agency declining to amend a solicitation despite public information potentially impacting solicitation terms.
Centuria Corporation, B-422245.6
In Centuria Corporation, the protester challenged the issuance of an order to DecisionPoint Corporation and the failure to allow Centuria to revise its proposal after the government purportedly engaged in discussions with DecisionPoint. The subject task order was issued as a fair opportunity proposal request (FOPR) issued under the procedures of FAR part 16 by the Air Force for defense cyber realization, operational support services, and integration.
This task order involved multiple rounds of protests and corrective actions taken by the Air Force with award decisions flipping back and forth between DecisionPoint and Centuria. The protest at issue here is in response to the award decision resulting from the second round of corrective action.
Each of the protest rounds centered upon Capability Maturity Model Integration (CMMI) certifications, and this round was no different. The FOPR required offerors to submit proof of a level III CMMI for the prime contractor. These CMMI certifications were the subject of the initial round of corrective action, and Centuria protested here based on its assertion that the Air Force conducted discussions with the awardee regarding these certifications during the initial round of corrective action without giving Centuria an opportunity to submit a revised proposal in violation of FAR section 15.307(b). FAR 15.307(b) states as follows:
The contracting officer may request or allow proposal revisions to clarify and document understandings reached during negotiations. At the conclusion of discussions, each offeror still in the competitive range shall be given an opportunity to submit a final proposal revision. The contracting officer is required to establish a common cut-off date only for receipt of final proposal revisions. Requests for final proposal revisions shall advise offerors that the final proposal revisions shall be in writing and that the Government intends to make award without obtaining further revisions.
The agency asserted that no violation of FAR 15.307(b) occurred because the interchanges with DecisionPoint did not constitute discussions.
The GAO determined that it was immaterial whether the Air Force engaged in discussions with DecisionPoint because the procedures of FAR subpart 15.3 do not apply to a procurement conducted under FAR part 16. The Air Force therefore was under no obligation to provide offerors with an opportunity to submit final proposal revisions, regardless of whether discussions took place. The GAO also added that because the interchanges took place as part of corrective action following a bid protest, and agencies have broad discretion in carrying out corrective action, the agency’s actions were not unreasonable. The GAO did not find that any violation of applicable law had occurred.
Takeaways: It is important to make sure that the FAR provisions relied upon as a protest basis are applicable to the FAR part under which a procurement takes place. Making sure that a helpful provision is applicable will help potential protesters focus their time on the strongest feasible arguments.
Tech Systems, Inc., B-423547, B-423547.2, B-423547.3
Tech Systems, Inc. challenged the award of a contract to TDNA Technologies, Inc. d/b/a Hartwood Consulting Group (“Hartwood”) under a request for proposals (RFP) issued by the U.S. Marine Corps for uniform alteration services. The protest hinged upon three main arguments: (1) the agency improperly evaluated the non-price factors; (2) the agency engaged in improper discussions with the awardee; and (3) the agency made a flawed best-value tradeoff decision when it chose the awardee that had a lower-rated proposal with a lower price than Tech Systems. The GAO denied all three protest grounds, but we will focus on the second ground.
Tech Systems asserted that the agency engaged in improper discussions with Hartwood when it reached out to Hartwood asking for confirmation about an aspect of its already submitted proposal regarding its readiness to perform within the time contemplated by the solicitation. The agency claimed that these communications were mere clarifications rather than discussions.
The GAO explained the distinction between clarifications and discussions as follows:
Clarifications are “limited exchanges” between the government and offerors that may allow offerors to clarify certain aspects of proposals or resolve minor clerical errors. FAR 15.306(a)(2). Discussions, on the other hand, occur when an agency indicates to an offeror significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to enhance materially the proposal’s potential for award. FAR 15.306(d)(3).
Tech Systems, Inc., B-423547, et al., at 11. The GAO went on to explain that when there is a dispute as to whether clarifications or discussions occurred, it will look to whether an offeror was given the opportunity to modify or revise its proposal.
With this backdrop, the GAO determined that the agency had only engaged in clarifications, not discussions, with Hartwood because the communication from the agency did not permit Hartwood to revise its proposal and Hartwood did not revise its proposal. Instead, the agency’s communications with Hartwood merely served to confirm what Hartwood had already proposed to do.
Takeaways: The distinction between whether an agency has engaged in discussions or clarifications can be challenging to parse. Reviewing carefully whether an offeror had the opportunity to revise its proposal based on the information provided can serve as a helpful tool to determine whether discussions have occurred.
United Defense, LLC, B-423577
In United Defense, the protester challenged the terms of a request for proposals (RFP) issued by the U.S. Department of the Army for intelligence support services for the Training and Doctrine Command (TRADOC) deputy chief of staff for intelligence. Importantly, the RFP stated that it was for services, including many tasks that were to be performed at Fort Eustis in Newport News, Virginia (TRADOC’s headquarters). In line with this requirement and per the language of the RFP, offerors were required to compensate staff in accordance with applicable Department of Labor wage determinations for Virginia for the Virginia-specific tasks.
United Defense timely submitted its proposal. Following submission, internal Army memoranda that were not released publicly stated that TRADOC’s headquarters and the Army Futures Command (AFC) headquarters would be consolidated into one joint headquarters. Information was subsequently reported by multiple news organizations that the joint headquarters would be in Austin, Texas. In light of these reports that the TRADOC headquarters would be moving out of Virginia and the Army not amending the RFP, United Defense protested the RFP’s terms.
The protester claimed that this move of TRADOC’s headquarters required an amendment to the terms of the RFP pursuant to FAR section 15.206 because the agency would no longer require services in Virginia, and the RFP requires offerors to propose a staffing approach based on the labor pool in Virginia and its applicable wage rates. It went on to argue that this move from Virginia to Texas would have a material impact on both pricing and staffing approaches.
The Army replied stating that there was no timeline in place for the TRADOC-AFC merger and there is no information presently available that would affect the requirements in this procurement. While the Army had taken steps toward consolidating the two headquarters, the GAO determined that no specific details are available upon which a change in the RFP could even be made at this juncture.
The GAO determined that under FAR 15.206(a), an agency is required to amend a solicitation when an agency’s requirements materially change after a solicitation has been issued. In this case, it determined that no such material change had occurred yet, so it denied the protest.
Takeaways: While it is important for offerors to monitor information that is made publicly available that could impact a pending proposal, the GAO will closely scrutinize whether this information requires the government to amend an RFP under FAR 15.206. It is a best practice to closely review announcement details that may impact a procurement. Even an announcement that appears to clearly alter a procurement should be examined to ensure that there are concrete details that conflict with the solicitation.
[View source.]
