Discussions: “Significant Weakness” Terminology Not Required

In discussions, a procuring agency is not required to explicitly inform an offeror that its proposal contains a significant weakness, so long as the agency sufficiently identifies the area of concern.

In a recent bid protest decision, the GAO held that the agency had adequately informed the offeror of the agency’s concerns, even though the agency did not specifically identify those concerns as a “significant weakness.”

The GAO’s bid protest decision in Wolf Creek Federal Services, Inc., B-409187.2; B-409187.3 (Feb. 6, 2014) involved a NASA procurement for operations, maintenance, repair, janitorial and other miscellaneous support services.  The solicitation was set aside for 8(a) program participants.  Award was to be made on a best value basis.

After evaluating initial proposals, NASA initiated discussions with Wolf Creek Federal Services, Inc. and the other offeror in the competitive range.  Among the discussion questions, Wolf Creek was asked to address its staffing approach, which included relying on cross-utilization of craft trades and minimal staffing of HVAC and janitors.  Wolf Creek responded to the discussion questions and submitted a final proposal revision.

NASA determined that Wolf Creek had addressed most of the concerns raised in discussions.  However, NASA determined that Wolf Creek had not adequately addressed NASA’s concerns regarding staffing.  NASA awarded the contract to Wolf Creek’s competitor.

Wolf Creek filed a GAO bid protest.  Wolf Creek contended, in part, that NASA had engaged in misleading discussions regarding Wolf Creek’s staffing.  Wolf Creek argued that although NASA identified certain areas in which Wolf Creek’s staffing was “minimal” and requested additional information, NASA did not inform Wolf Creek that the agency viewed this concern to be a significant weakness.

The GAO wrote that “[t]o satisfy the requirement for meaningful discussions, an agency need only lead an offeror into the areas of its proposal requiring amplification or revision . . ..”  The GAO held that having raised its staffing concerns, “[t]he agency was not required to . . . specifically label its concern as a ‘significant weakness,’ as Wolf Creek claims.”  The GAO concluded that Wolf Creek’s position “simply does not reflect the standard for discussions established in the FAR and in the decisions of our Office–that is, the agency’s obligation to lead the offeror into the area of concern.”  The GAO denied the protest.

The Wolf Creek GAO bid protest decision shows that agencies need not use magic words, such as “significant weakness,” when conducting discussions.   Offerors should be on notice that just because an agency does not use such precise terminology does not render the discussions improper.

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