GAO: Task Order Discussions Must Identify Weaknesses

An agency must identify weaknesses or deficiencies in an offeror’s proposal when the agency conducts discussions as part of a task order competition, according to a recent GAO bid protest decision.

In Mission Essential Personnel, LLC, B-407474, B-407493 (Jan. 7, 2013), the GAO held that a procuring agency erred by failing to inform an offeror of two weaknesses or deficiencies in its proposal.  The GAO concluded that discussions must include this information even when the procurement is a task order competition conducted under FAR part 16.

The Mission Essential Personnel GAO bid protest decision involved  two Army task order competitions under a multiple-award IDIQ.  Three companies held the IDIQ contracts: Mission Essential Personenel, LLC, L-3 STRATIS, and Six3 Systems.  The successful offeror was to provide intelligence support services in Afghanistan.

The Army solicited proposals from all three IDIQ holders for the two task orders.  The task order solicitations stated that award would be made on a low-price, technically acceptable basis.  Each offeror was to receive a technical rating of “Go” (technically acceptable) or “No Go” (technically unacceptable).

After reviewing competitive proposals, the Army initiated discussions, then solicited revised proposals.  The Army then announced that L-3 STRATIS was the awardee under both task orders.

Although MEP was the lowest-priced offeror for one of the task orders, MEP was assigned a “No Go” rating.  In assigning MEP’s proposal a “No Go” rating, the Army identified three concerns: turnover in MEP’s program manager position, delays in submitting invoices, and the firm’s “fill rate” in providing personnel.

MEP filed a GAO bid protest, alleging in part that the Army had engaged in improper discussions by failing in discussions to identify program manager turnover or invoicing delays as weaknesses or deficiencies in MEP’s proposal.

The GAO agreed with MEP.  It wrote that “although the the regulations governing discussions under [FAR part 15] do not, as a general rule, govern task order delivery order competitions conducted under FAR part 16,” such discussions “must be fair and not misleading.”

The GAO continued, “we do not regard the discussions as fair because the record shows that the agency identified two weaknesses or deficiencies that appear to have formed the underlying basis for its assignment of a ‘No Go’ rating to the MEP proposal, but those weaknesses or deficiencies were never brought to MEP’s attention.”  The GAO sustained MEP’s bid protest.

The Mission Essential Personnel GAO bid protest decision confirms that in order for discussions to be fair, agencies must identify weaknesses or deficiencies in offerors’ proposals–even when the procurement is a task order competition under FAR part 16.  Although FAR part 16 does not specifically include such a requirement, it’s the right result: discussions in task order competitions would be meaningless if offerors were not informed of significant problems with their proposals.

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