I don’t have a tag for “bad grounds for a GAO bid protest,” but if I did, challenging an agency’s decision not to conduct discussions would fall in that category–at least (as is typically the case), when the solicitation does not state that discussions will be conducted.
This issue comes up often enough in GAO bid protest decisions (with the same predictable result nearly every time) that it’s worth taking a quick look at one such recent case in which this particular issue arose.
The GAO’s decision in Six3 Systems, Inc., B-405942.4, B-405942.8 (Nov. 2, 2012) involved a Defense Intelligence Agency multiple-award solicitation for intelligence analysis support and related services. After evaluating competitive proposals, the DIA chose not to accept Six3 Systems, Inc.’s proposal and made award to a number of Six3′s competitors.
Six3 filed a GAO bid protest, making several challenges to the DIA’s evaluation. Among its challenges, Six3 argued that the DIA should not have made award on the basis of initial proposals, but instead should have conducted discussions and requested final proposal revisions.
The GAO held that Six3′s argument was untimely, because it was raised for the first time in comments to the agency report, rather than in the initial protest. In any case, the GAO noted that “the solicitation expressly advised that the agency intended to make the awards without holding discussions” and that “there are no statutory or regulatory criteria specifying when an agency should or should not initiate discussions.” Accordingly, the GAO wrote, “we generally do not review an agency’s decision not to initiate discussions.” The GAO rejected Six3′s discussions argument, as well as it other arguments, and denied the protest.
If you’re wondering whether a solicitation you bid upon contains an advisement that the agency will not conduct discussions, the answer is “probably.” The clause at FAR 52.215-1 states that “the Government intends to evaluate proposals and award a contract without discussions with offerors,”but reserves the Government’s right to open discussions if it so wishes. When conducting negotiated procurements, Contracting Officers usually insert this standard clause rather than its alternate version, in order to give themselves the flexibility to make award without discussions.
The Six3 Systems case is a good reminder that the Government’s right to conduct discussions is subject to broad discretion. Unless the solicitation expressly states that discussions will be conducted, or unless other unusual circumstances exist, the GAO is highly unlikely to sustain a protest based on the argument that the Government should have conducted discussions.