GAO Affirms any Discussions During Evaluations Must be Meaningful

Evaluation of offers is a crucial point in the procurement process. During this time period, an agency may, in certain procurements, reach out with discussion questions meant to bring clarity to the decision-making process. However, any such discussions must be meaningful.

As one offeror recently found out, meaningful discussions even apply in so-called simplified acquisitions.

GAO’s recent decision in Academy Leadership, LLC B-419705.2 is a cautionary tale for an agency’s conduct of discussions.

On October 29, 2020, the Department of Homeland Security, United States Immigration and Customs Enforcement (ICE), issued the solicitation at issue for leadership-focused training. The solicitation was a single indefinite-delivery, indefinite-quantity (IDIQ) contract with a five-year ordering period. The original award decision was not planning to establish a competitive range or conduct discussions. However, the contracting officer reserved the right to conduct discussions if it was deemed necessary.

The evaluation was envisioned as a two-phased evaluation. With only the highly qualified offerors making it to the second phase, providing sample training presentations. As a result, ICE received a total of six offers. On December 22, 2020, the agency proceeded to the second phase with three offerors. On March 16, ICE made the initial award. In response, on March 26, Academy filed protest.

In response, the agency sent notice that it intended to take corrective action. ICE advised it would reevaluate the proposals and make a new award decision.

After reevaluation, ICE again made the same award decision. ICE proposed to pay an approximately 53% premium over Academy. The reasoning given by ICE was that the awardee ranked significantly higher than Academy on the highest-weighted factors. Academy, once again, filed protest.

Interestingly, during the procurement process, ICE reached out to each offeror and requested price reductions. This, in and of itself, did not make the discussions fair and equitable. GAO latched on to ICE’s notification that the awardee’s price was “significantly higher” than the other offerors. This, GAO found, directed the awardee to its proposal in order to make adjustments in order to make its proposal more appealing.

GAO found that the communications with Academy were not on par with ICE’s communications with the awardee. ICE notified Academy that it had different aspects of its proposal that raised or lowered the expectations of success. GAO found that although ICE couched these “lower the expectations of success” as not identifying deficiencies or weaknesses, GAO did not bite. GAO found, “where an agency avails itself of negotiated procurement procedures, the agency should treat offerors fairly and reasonably in the conduct of those procedures.”

The key for GAO, was ICE identifying the “significantly higher” price of the awardee, which led them to reevaluate, while not affording other offerors the same opportunity. Notably, this was ICE’s only concern with the awardee’s proposal. ICE, when evaluating Academy, noted items that lowered expectations of success. Despite not advising Academy it considered these weaknesses or deficiencies, when the agency asked the awardee to alter the one issue that lowered its evaluation, this rendered the discussions not meaningful. Given that GAO found these communications to be discussions, ICE was then required to notify each offeror of the significant weaknesses or deficiencies in its proposal.

The bottom line here, is when an agency reaches out to request modification of aspects of proposals, it may be opening the door to conducting discussions. When discussions (even unintentionally) are undertaken, the discussions must be meaningful. GAO defines meaningful discussions to require that “an agency must point out significant weaknesses or deficiencies in a proposal that require correction or amplification in order for the offeror to have a reasonable chance for award.” Here, ICE pointed out the awardee’s pricing issue and allowed correction, without providing the same opportunity to all offerors.

Each offeror should expect that any significant weaknesses or deficiencies be identified in discussions. I see no reason why an offeror cannot ask an agency, if the agency reaches out, if there are any weaknesses or deficiencies the offer must address. This can ensure an offeror is able to address any issues which would limit its chances of award. Meaningful discussions are a favorite sustaining ground of GAO, and one that offerors should memorialize in writing, even in procurements where discussions are not originally anticipated.

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