An agency providing an opportunity to substantially revise a proposal can seem too good to be true. And sometimes, it is. It is a fundamental principle of procurement law that offerors must be treated equally. When one offeror is given an opportunity to “fix” the deficiencies in its proposal, but the other offeror is not, that is fundamentally unfair.
As one offeror found out, despite submitting everything to the agency as it was asked, GAO still sustained the protest.
When an agency opens discussions with offerors, those discussions must be fair.
In a recent decision, GAO recommended the reopening of competition for a contract worth up to $283 million based, in part, on a finding that an agency had engaged in misleading and unequal discussions.
An agency acted improperly by inviting the ultimate contract awardee to revise its pricing, but not affording that same opportunity to a competitor–even though the awardee didn’t amend its pricing in response to the agency’s invitation.
According to a recent GAO bid protest decision, merely providing the awardee the opportunity to amend its pricing was erroneous, regardless of whether the awardee took advantage of that opportunity.