Discussions: Second Bite At The Apple Not Required, Says GAO

An agency does not need to reopen discussions to allow an offeror to address a weakness first introduced in a revised proposal.

In a recent bid protest decision, the GAO held that an agency properly eliminated an offeror from the competitive range where the offeror, in a revised proposal submitted after discussions, introduced a new weakness.

The GAO’s decision in Geo Marine, Inc./Burns & McDonnell Engineering, Inc., Joint Venture, B-407337.3 (Jan. 22, 2014) involved an Army Corps of Engineers solicitation for design/build services.  The solicitation called for a two-phase acquisition process.  During phase one, firms submitted their qualifications.  Offerors with appropriate qualifications were selected to submit phase two proposals, which involved responses to a sample task.

Geo Marine, Inc./Burns & McDonnell Engineering, Inc., Joint Venture (which is a mouthful, so I’ll use “GMI”) submitted a phase one proposal.  After evaluating GMI’s qualifications, the Corps invited GMI to submit a phase two proposal.

The Corps assigned GMI’s phase two proposal an initial “marginal” rating due to several identified weaknesses.  One of the assigned weaknesses was because GMI had not properly positioned certain wind turbine generators, or WTGs, in accordance with the requirements of the sample task, and had not explained its deviation from the solicitation.

The Corps initiated discussions with offerors.  In discussions, the Corps raised its concern regarding the WTGs.  In its revised proposal, GMI did not change the proposed location of the WTGs, but explained its rationale for positioning them as it had.

After evaluating the revised proposal, the Corps changed the original weakness to a significant weakness.  The Corps found that GMI’s explanation was incorrect and inconsistent with the solicitation’s requirements.  Based on this finding, the Corps eliminated GMI’s proposal from consideration.

GMI filed a GAO bid protest challenging its exclusion.  GMI argued that the Corps should have reopened discussions after it elevated its concern from a weakness to a significant weakness.

The GAO disagreed.  It wrote that although discussions must be meaningful, “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 GMI’s case, the Corps “engaged in meaningful discussions with GMI relating to its original proposal weakness associated with the placement of the WTGs.”  However, “[r]ather than allay the agency’s initial concern,” GMI’s response amplified that concern.  The Corps “was under no obligation to further discuss these new concerns with GMI, since they were introduced for the first time into GMI’s revised proposal.”  The GAO denied the protest.

Discussions can be an important way for offerors to fine-tune their proposals and eliminate weaknesses or ambiguities.  However, as the GMI case makes clear, an agency’s obligations in discussions only go so far.  Where, as here, an offeror’s revised proposal introduces new weaknesses or uncertainties, the agency is under no obligation to give the offeror a second bite at the apple.

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