I don’t have a tag for “bad grounds for a GAO bid protest,” but if I did, challenging an agency’s decision not to conduct discussions would fall in that category–at least (as is typically the case), when the solicitation does not state that discussions will be conducted.
This issue comes up often enough in GAO bid protest decisions (with the same predictable result nearly every time) that it’s worth taking a quick look at one such recent case in which this particular issue arose.
When, in discussions, a procuring agency tells a contractor that an aspect of the contractor’s proposal is a weakness, the natural response is to correct the problem. In one recent GAO bid protest decision, however, correcting a weakness may have cost a contractor a $30 million award.
In EMR, Inc., B-406625 (July 17, 2012), the procuring agency informed the contractor that certain labor rates appeared low in comparison to other offerors’ rates, and labeled the low rates a weakness. In response, the contractor raised the rates in question, thereby increasing its overall price–then narrowly lost out on a low-price, technically acceptable contract.
The GAO’s verdict? The agency did nothing wrong.
The Canadian band Barenaked Ladies (if my blog readership spikes today, I will suspect it’s from folks seeking something else by Googling that term) have a song called “Who Needs Sleep?” As the father of a 10-month old, the chorus–“Who needs sleep? Well you’re never gonna get it”–describes my life pretty accurately.
If BNL had been singing about federal procurements instead of slumber, the band might have used a similar chorus: “Who needs discussions? Well you’re never gonna get ’em.” As a pair of recent GAO bid protest decisions demonstrate, there is generally no requirement that a procuring agency engage in discussions with offerors, and it’s evident why many agencies avoid them: discussions remain fertile ground for sustained GAO bid protests.
In negotiated procurements, contractors sometimes enter into discussions with agency representatives. But contractors must understand that oral discussions don’t trump a solicitation’s terms. If a government solicitation includes clear and specific requirements, the agency’s subsequent oral advice to the contrary doesn’t waive or alter the solicitation–a rule confirmed, to one contractor’s detriment, in a recent GAO bid protest decision.