Agency Not Required To Re-Open Discussions To Address New Weakness

A procuring agency is not required to re-open discussions to address a weakness first presented in an offeror’s revised proposal.

In a recent bid protest decision, the GAO held that an offeror was not entitled to an additional round of discussions when an agency assigned the offeror a significant weakness for an item first included in the offeror’s revised proposal.

GAO’s decision in Research Analysis & Maintenance, Inc., B-410570.6, B-410570.7 (July 22, 2015) involved an Army solicitation for test support services for the United States Army Operational Test Command.  The solicitation indicted that offerors should to complete their proposals based on baseline staffing data provided in an attachment.  However, offerors were permitted to deviate from the government’s baseline staffing if they wished.  The solicitation stated that any deviations from the Army’s labor hours and mix had to be supported with detailed narrative explanations.

After taking voluntary corrective action in response to an earlier bid protest, the Army opened discussions with the five offerors remaining in the competitive range.  Research Analysis & Maintenance, Inc. was one of the five.  In its final proposal, RAM elected to deviate from a portion of the government’s baseline labor hours and mix.  These deviations had not been included in RAM’s initial proposal.

In its evaluation of RAM’s revised proposal, the Army determined that RAM had understaffed a portion of the work, and questioned the feasibility of the deviations RAM proposed.  As a result, the Army assigned RAM a significant weakness.  The Army awarded the contract to a competitor.

RAM filed a GAO bid protest, making a number of challenges to the Army’s evaluation.  Among its challenges, RAM contended that the Army was required to reopen discussions with RAM to address the significant weakness with RAM’s staffing approach.

The GAO wrote that “[d]iscussions, when conducted, must identify proposal deficiencies and significant weaknesses that reasonably could be addressed in order to materially enhance the offeror’s potential for receiving award.”  However, “agencies are not required to reopen discussions to afford an offeror an additional opportunity to revise its proposal where a weakness or deficiency is first introduced in the firm’s revised proposal.”

In this case, “[t]he Army’s concern regarding RAM’s proposed deviation from the staffing matrix . . . was not based on any information in the protester’s proposal predating discussions.”  Rather, “the agency’s concern was based on new information introduced by RAM in its revised proposal responding to the amended RFP.”  The GAO denied this basis of protest, writing “[w]hen, as here, an offeror introduces defects into its proposal in a revised proposal, it runs the risk that the agency will exercise its discretion not to reopen discussions.”

When an agency opens discussions, the opportunity to submit a revised proposal can significantly enhance an offeror’s chances to win.  But, as the Research Analysis & Maintenance case demonstrates, offerors must carefully consider the nature and scope of the revisions they propose.  Although an agency is required to identify all deficiencies and significant weaknesses in discussions, the agency is not required to reopen discussions to identify new deficiencies or weaknesses that appeared, for the first time, in the revised proposal.

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