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FAR 15.306 (e):  Discussions - limitation on exchanges, unequal

Comptroller General - Key Excerpts

New The protester argues that DOS engaged in discussions with Salient after receipt of final proposal revisions by allowing Salient to provide prices for CLINs 151-158 that had been omitted from Salient’s proposal. Protest at 7-8. The agency maintains that its communications with Salient constituted clarifications, and that Salient’s provision of travel rates for CLINs 151-158 “did not amount to a material change to [Salient’s] proposal because the rates were not a material contract requirement.” Memorandum of Law (MOL) at 10-11. In particular, the agency asserts that the travel rates were not required for, or a component of, the total proposed price or price evaluation, and therefore played no part in the best-value determination. Id. at 11-12. DOS further asserts that “travel rates for all years of the contract were merely included should the Government require travel, but travel may potentially never be required during the lifecycle of the contract,” and that the contracting officer merely clarified an “administrative error.” Id.

Clarifications are limited exchanges between an agency and an offeror for the purpose of eliminating minor uncertainties or irregularities in a proposal, and do not give an offeror the opportunity to revise or modify its proposal. FAR § 15.306(a)(2); Gulf Copper Ship Repair, Inc., B-293706.5, Sept. 10, 2004, 2005 CPD ¶ 108 at 6. Discussions, on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of the proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. Lockheed Martin Simulation, Training & Support, B-292836.8 et al., Nov. 24, 2004, 2005 CPD ¶ 27 at 8; see FAR § 15.306(d). It is the actions of the parties that determine whether discussions have been held and not the characterization of communications by the agency. Gulf Copper Ship Repair, Inc., supra. In situations where there is a dispute regarding whether communications between an agency and an offeror constituted discussions, the acid test is whether an offeror has been afforded an opportunity to revise or modify its proposal. Id. Where an agency reopens discussions with one offeror after the receipt of FPRs, it must afford all offerors in the competitive range an opportunity for reopened discussions. Lockheed Martin Simulation, Training & Support, supra. Additionally, when holding discussions, agencies are not permitted to engage in conduct that favors one offeror over another. FAR § 15.306(e)(1).

Here, the RFP clearly instructed offerors to “[s]ubmit proposed rates per section ‘B’ and the pricing requirements” and further advised that “offerors are required to meet all solicitation requirements, such as terms and conditions, technical factors, and pricing information.” RFP at 102, 112. Section B of the RFP directed offerors to propose partial and full day domestic and international travel rates for FLSA exempt and non-exempt travel for CLINs 151 through 158 of the contract. Id. at 25-26. Therefore, contrary to the agency’s arguments, the RFP did, in fact, require offerors to provide rates for all CLINs, including the travel CLINs at issue here. While the rates proposed for the travel CLINs were not included in the total evaluated price, as the agency contends, these rates will provide the basis for future reimbursement in the event travel is required for this contract. As a result, the missing rates represented a failure to meet a material requirement of this solicitation. See Business Integra, Inc., B-407273.22, Feb. 27, 2014, 2014 CPD ¶ 88 at 4 (failure to provide rates for all labor categories made proposal unacceptable for award). In a negotiated procurement, a proposal that fails to conform to the material terms and conditions of the solicitation is unacceptable and may not form the basis for award. Raytheon Technical Servs. Co. LLC, B-404655.4 et al., Oct. 11, 2011, 2011 CPD ¶ 236 at 9.

There is no dispute in this record that Salient failed to provide travel rates for CLINs 151-158. AR, Tab 27, Salient Price Final Proposal Revision, at 20-21. Since Salient did not provide all required prices, its proposal did not conform to the material terms of the RFP, and therefore could not be accepted for award. By obtaining the missing rates after the common cutoff established for receipt of final proposal revisions from all remaining competitive range offerors, the agency engaged in discussions with only Salient and thereby allowed it to revise its proposal.[6] Raytheon Technical Servs. Co. LLC, supra at 7; Manthos Eng’g, LLC, B-401751, Oct. 16, 2009, 2009 CPD ¶ 240 at 8-10 (failure to submit option year pricing not a mistake that could be addressed through clarifications); cf. STG, Inc., B-411415, B-411415.2, July 22, 2015, 2015 CPD ¶ 240 at 8-10 (where two offerors submitted no pricing for several CLINs, agency engaged in clarifications when it did not permit the offerors to provide any missing information, but only to clarify whether the blank CLINs were intended to mean “zero”). Accordingly, the agency’s conduct of discussions was unequal in this respect, and we sustain the protest.  (Global Language Center B-413503.8: Jun 1, 2017)

SRA contends that the agency engaged in unequal and improper discussions when it conducted discussions with CACI, but failed to conduct discussions with the other offerors, including SRA. Supp. Protest at 8-10. SRA asserts that, if it had been given the opportunity to engage in discussions, the firm could have supplied additional information regarding its staffing proposal, which would have led to a higher rating under this evaluation factor.

When an agency conducts discussions with one offeror, it must conduct discussions with all offerors in the competitive range. Gulf Copper Ship Repair, Inc., B‑293706.5, Sept. 10, 2004, 2004 CPD ¶ 108 at 9. In addition, the discussions must be “meaningful,” that is, sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision in a manner to materially enhance the offeror’s potential for receiving the award. Federal Acquisition Regulation (FAR) § 15.306(d); Computer Sciences Corporation et al., B‑408694.7 et al., Nov. 3, 2014, 2014 CPD ¶ 331 at 23.

Here, the agency does not deny that it conducted discussions in October only with CACI. Rather, it contends that these discussions were appropriate because, prior to the discussions, the CO had already decided that CACI represented the best value to the government. Further, the agency notes that the solicitation provided that, “[a]fter an offeror has been selected for award based upon a best value determination, the Government may negotiate a final reduced price.” RFP at M-1.

The record does not support the agency’s position. As noted, the CO’s statement that he concluded in October that CACI would be selected for award is not documented anywhere in the contemporaneous record. See COS, March 27, 2015, at 1 (no contemporaneous documentation of CO’s conclusion). On the contrary, the agency’s position in fact is inconsistent with the contemporaneous record.

The record shows that the CO’s purported selection of CACI occurred while the ratings of proposals (including that of CACI) were still being reviewed and modified. At the time of the October discussions with CACI, the TEB had not finalized its ratings, and the CO had not read the proposals to allow him to make a selection decision without relying on the evaluation conclusions of the TEB. See COS at 1. Specifically, the CO opened discussions with CACI on October 13, and on October 15, CACI submitted a revised pricing proposal. AR, Tab 32, E-mail to CACI, October 13, 2014, and Response, October 15, 2014, at 1; SSDD at 14. Nearly a month later, on November 12, the agency received further information regarding CACI’s past performance on two contracts. Agency E-mail to GAO, March 27, 2015, Attachs. 2, 3. After receiving this additional information, and more than a month after the CO began discussions with CACI, the TEB decided that the additional past performance information would result in a lowering of CACI’s past performance rating from a rating of excellent to a rating of good. See TEB Chair’s Summary of Supplemental Evaluation at 20.

On November 20, more than a month after the CO began conducting discussions with CACI, the TEB reached consensus regarding its evaluation. Id. at 4; Pre-Award Briefing, at 8 (“TEB Consensus Reached: November 20, 2014”). In addition to changes in CACI’s ratings, ratings for several other offerors were also changed on November 20. TEB Chair’s Summary of Supplemental Evaluation at 1-5. Finally, in late December 2014, more than two months after the CO began discussions with CACI, the TEB finalized its report and the Contracting Officer documented his selection decision. See AR, Tab 18, E-mail from TEB Chair to CO Finalizing TEB Report, Dec. 17, 2014, at 1; SSDD, Dec. 16, 2014; see Pre-Award Briefing, Dec. 10, 2014. During this time, the agency did not conduct discussions with any offeror, save CACI.

An agency that fails to adequately document its evaluation of proposals or source selection decision bears the risk that its determinations will be considered unsupported, and absent such support, our Office may be unable to determine whether the agency had a reasonable basis for its determinations. Clark/Foulger-Pratt JV, B-406627, B-406627.2, July 23, 2012, 2012 CPD ¶ 213 at 10. Here, we find that the agency’s conduct of discussions with only one offeror, with no documentation that CACI had already been identified as the successful offeror, and two months prior to the documented source selection decision, while evaluation ratings were still being adjusted, constituted unequal, and therefore improper, discussions. In this regard, it is axiomatic that, in a best value procurement, if a procuring agency holds discussions with one offeror, it must hold discussions with all offerors and that, when holding discussions agencies may not engage in conduct that favors one offeror over another. Marathon Medical Corp., B‑408052, June 4, 2013, 2014 CPD ¶ 162; FAR § 15.306(e)(1). Since the record shows that the agency engaged in pre-selection discussions with CACI in October, it was required to engage in discussions with all of the offerors regarding the areas of their proposals requiring amplification or revision.   (SRA International, Inc. B-410973, B-410973.2: Apr 8, 2015)  (pdf)


 Bannum asserts that the agency conducted improper and unequal discussions by informing Dismas that its “proposed pricing is high,” without providing Bannum input on its own pricing. Bannum contends that this disparity was unreasonable and unequal where Bannum presumes that both offerors’ proposed prices were below the agency’s independent government estimate (IGE), which Bannum estimates as $12,408,765.60, by averaging the contract rates of multiple other residential reentry center services contracts discussed in the agency’s price analysis.

The Federal Acquisition Regulation (FAR) requires agencies to address during discussions, “[a]t a minimum . . . deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond.” FAR § 15.306(d)(3). Although discussions may not be conducted in a manner that favors one offeror over another, and offerors must be given an equal opportunity to revise their proposals, discussions need not be identical among offerors; rather, discussions need only be tailored to each offeror’s proposal. See FAR §§ 15.306(d)(1), (e)(1); WorldTravelService, B-284155.3, Mar. 26, 2001, 2001 CPD ¶ 68 at 5-6.

Concerning prices, unless an offeror’s proposed price is so high as to be unreasonable or unacceptable, an agency is not required to inform an offeror during discussions that its proposed price is high in comparison to a competitor’s proposed price, even where price is the determinative factor for award. DeTekion Sec. Sys., Inc., B-298235, B-298235.2, July 13, 2006, 2006 CPD ¶ 130 at 15. Nonetheless, it is inherently within an agency’s discretion to inform an offeror during discussions that its price appears to be high in comparison to other offeror's proposed prices, should an agency choose to do so. Id. at 13. This is true without regard to whether the offeror’s price is higher or lower than the agency’s IGE. Id.

In this case, we do not agree with Bannum that the agency acted improperly in informing Dismas that its “proposed pricing is high.” As discussed above, notwithstanding the relationship between Dismas’ initial price and the agency’s IGE, it is within the agency’s discretion during discussions to inform an offeror that its price is high in comparison to other offerors’ proposed prices. Id.

As a further matter in this protest, we note that Bannum’s estimate of the agency’s IGE in this case is incorrect. The record demonstrates that the agency’s actual IGE for this procurement was $11,400,107.04. AR, Tab 33, IGE, at 4. Accordingly, Dismas’ initial price in this case was higher than both Bannum’s initial price, and the agency’s IGE. In light of this record, we see no unequal or unfair treatment in the agency’s decision to inform Dismas that its “proposed pricing is high,” or in its decision to make no comment on Bannum’s pricing, where Bannum’s price was both the lowest price received, and was lower than the agency’s IGE. As stated above, discussions need not be identical among offerors; rather, discussions need only be tailored to each offeror’s proposal. See FAR §§ 15.306(d)(1), (e)(1); WorldTravelService, supra.  (Bannum, Inc., B-409831: Jul 30, 2014)  (pdf)
 


Next, HPES contends that DHS engaged in unequal discussions with XTec during a post-final proposal submission exchange between XTec and DHS. The protester alleges that these communications amounted to unequal discussions because the exchanges were necessary to determine the acceptability of XTec’s proposal and/or permitted a revision to XTec’s proposal. The agency contends that the exchanges did not result in any material modification of XTec’s proposal, nor did the agency’s evaluation of the awardee’s proposal depend on such exchanges. For the reasons discussed below, we agree with the agency.

Clarifications are limited exchanges between an agency and an offeror for the purpose of clarifying certain aspects of a proposal, and do not give an offeror the opportunity to revise or modify its proposal. Federal Acquisition Regulation (FAR) §15.306(a)(2); Booz Allen Hamilton, Inc., B-405993, B-405993.2, Jan. 19, 2012, 2012 CPD ¶ 30 at 12. Discussions, on the other hand, occur when a contracting officer communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. Highmark Medicare Servs., Inc., et al., B-401062.5 et al., Oct. 29, 2010, 2010 CPD ¶ 285 at 11; Gulf Copper Ship Repair, Inc., B-293706.5, Sept. 10, 2004, 2005 CPD ¶ 108 at 6; see FAR § 15.306(d).

Where, as here, there is a dispute regarding whether exchanges between an agency and an offeror constituted discussions, we look at whether an offeror has been afforded an opportunity to revise or modify its proposal. Booz Allen Hamilton, Inc., supra, at 12. Exchanges that do not permit an offeror to revise or modify its proposal, but rather permit the offeror to explain or clarify what the offeror has already proposed to do, are clarifications and not discussions. Allied Tech. Grp., Inc., B-402135, B-402135.2, Jan. 21, 2010, 2010 CPD ¶ 152 at 6; SRS Techs., B-291618.2, B-291618.3, Feb. 24, 2003, 2003 CPD ¶ 70 at 3 n.4.

The allegation that the agency conducted discussions here arose from an exchange between DHS and XTec on the day the agency announced its selection decision. Specifically, on February 28, 2014, the agency notified the unsuccessful offerors, including HPES, of its award decision. That same day, the agency notified XTec of its award decision and requested signature of the contract and task order. Supp. AR at 7. In response to DHS’s notice, XTec asked the agency a series of questions. The agency held a conference call with XTec to answer each of the questions. The agency summarized is oral responses to XTec’s questions as follows, in relevant part:

XTec: DHS currently has 157 XTec enrollment stations in service [under XTec’s incumbent contract]. What is the plan to maintain the existing EIWS population? How will the maintenance of these stations be contracted? We assume these will be maintained under the current sole source contract.

DHS: The maintenance of these stations will be paid for under the sole source [incumbent contract].

XTec: Based on the BAFO [best and final offer] XTec was asked to remove the cost for Network compatibility which we did. How will this be added back into the contract to allow for the complete solution?

DHS: [T]his was a major issue . . . DHS understood XTec’s pricing to be for a complete solution and that if it did not include all costs then [the contracting officer] could not award the contract. . . . XTec indicated that it would not require additional costs to be added back into the contract. [The contracting officer] requested that they state this in writing. XTec submitted the following confirmation in writing, “Per you request, I would like to state in writing (in reference to our question #9) that XTec confirms our price for enrollment station is all-inclusive of a complete solution.”

XTec: [T]he scope of work for a non-incumbent transitioning to a new system versus the incumbent system which was a simple upgrade is quite different. How do you see this process moving forward? We believe the labor mix would be more equivalent to our current sole source contract versus what was listed in the SOW for this procurement.

DHS: This was not discussed specifically. . . . [The contracting officer] did indicate that the base task order which was being awarded concurrently with the IDIQ contract was not negotiable, but that [DHS] would negotiate labor mix for future task orders.

XTec: What is the plan for the EIWS replacements? . . . Understanding the actual plan and accurate number for these replacements will help in understanding any additional licensing costs?

DHS: This was not discussed specifically. . . . DHS and XTec agreed that these questions would be addressed in detail post-award.

AR, Tab I2, Agency Summary of Conference Call, at 1-3.

In response to the protester’s assertions, the agency states that it did not permit XTec to submit any proposal revisions, and that the questions asked by XTec did not alter in any way its previously-made award decision. Supp. AR at 7. The agency also states that its award decision only relied upon information in XTec’s final proposal revision and did not rely on the exchanges with XTec to find XTec’s proposal acceptable. Contracting Officer’s Statement at 14.

While we understand the concerns raised by HPES about whether this exchange indicates that XTec may have misunderstood certain elements of the solicitation, the record here provides no support for HPES’s assertion that the agency conducted prejudicially unequal discussions. There is simply no evidence that DHS, at the time of the alleged unequal discussions, used or intended to use information provided by XTec to determine XTec’s acceptability. We additionally cannot find any evidence that DHS permitted XTec to make any material changes to its proposal. The exchanges between XTec and the agency demonstrate no more than clarifications and contract administration matters. In sum, there is no support in the record for the protester’s assertions. In these circumstances, there is no basis to conclude that the agency improperly conducted discussions with only one offeror. See AlliedBarton Sec. Servs. LLC, B-299978 et al., Oct. 9, 2007, 2007 CPD ¶ 186.  (H P Enterprise Services, LLC, B-409169.3, B-409169.4: Jun 16, 2014)  (pdf)


Marathon protests that the agency improperly held discussions with Manus, but failed to hold discussions with Marathon. Specifically, Marathon asserts that the agency allowed Manus to provide its components for inspection after the closing date for proposals, which allowed Manus to become acceptable, but did not allow Marathon the same opportunity with respect to its past performance references. In response, the agency responds that it did not hold discussions with Manus because it did not allow Manus to alter its proposal, and instead only requested clarification of its proposal.

Federal Acquisition Regulation (FAR) § 15.306 describes a range of exchanges that may take place between an agency and an offeror during negotiated procurements. Clarifications are “limited exchanges” between the agency and offerors that may allow offerors to clarify certain aspects of proposals or to resolve minor or clerical mistakes. FAR § 15.306(a)(2). Discussions, on the other hand, occur when an agency indicates to an offeror aspects of its proposal that could be altered or explained to materially enhance the proposal’s potential for award or to obtain information from the offeror that is necessary to determine the proposal’s acceptability. See FAR § 15.306(d)(3); Raytheon Co., B-404998, July 25, 2011, 2011 CPD ¶ 232 at 4-5; Nu-Way, Inc., B-296435.5, B-296435.10, Sept. 28, 2005, 2005 CPD ¶ 195 at 7. If a procuring agency holds discussions with one offeror, it must hold discussions with all offerors whose proposals are in the competitive range. International Resources Group, B-286663, Jan. 31, 2001, 2001 CPD ¶ 35 at 6. In addition, when holding discussions procuring agencies are not permitted to engage in conduct that favors one offeror over another. FAR § 15.306(e)(1).

Here, the solicitation required that an offeror proposing an equal item “must furnish as part of his/her [offer] all descriptive material . . . necessary for the purchasing activity to: (i) Determine whether the product offered meets the salient characteristics requirement.” RFP § C.18. According to the evaluation notice, the agency was requesting samples for all proposed equal items “[i]n order to verify if the proposed components are equal or equivalent.” Manus Evaluation Notice. As the agency subsequently explained, “[b]y viewing [the samples] they were able to make a firm determination that they were in fact ‘equivalent.’” Supplemental Legal Memorandum at 6. Since visual inspection of the requested samples was necessary for Manus to meet its obligation of establishing that the proposed equal items were in fact equivalent to the name brand items, the request that Manus bring in the components for a visual inspection amounted to discussions with Manus for the purpose of allowing it to establish the acceptability of its proposal. Accordingly, the agency was required to treat Marathon equally, and allow Marathon a similar opportunity to meet the solicitation’s requirements. In this case that would mean allowing Marathon to provide the references it initially omitted. Since the agency failed to do so the agency engaged in unequal discussions.  (Marathon Medical Corporation, B-408052: Jun 4, 2014)  (pdf)


GDIT contends that the Army’s discussions were unequal. As an initial matter, GDIT concedes that the Army appraised it of all weaknesses found in its initial response, and further clarified its items for discussion following GDIT’s first revised response. Nonetheless, GDIT maintains that it should also have been advised of areas where its response could have been improved (such as by proposing more highly qualified personnel). According to GDIT, it was entitled to more extensive discussions since the Army made NCI more competitive by advising NCI during discussions that its price appeared high and that its labor rates, in numerous instances, appeared to be “significantly overstated.” NCI Discussion Ltr., at 1.

Our Office will review task order competitions to ensure that the competition is conducted in accordance with the solicitation and applicable procurement laws and regulations. Imagine One Tech. & Mgmt., Ltd., B-401503.4, Aug. 13, 2010, 2010 CPD ¶ 227 at 7. In this regard, FAR § 16.505 does not establish specific requirements for discussions in a task order competition; exchanges in that context, like other aspects of such a procurement, must be fair. Generally, discussions, when conducted under FAR Part 15, must address deficiencies and significant weaknesses identified in proposals, however, the precise content of discussions is largely a matter of the contracting officer's judgment. See FAR § 15.306(d)(3); American States Utils. Servs., Inc., B-291307.3, June 30, 2004, 2004 CPD ¶ 150 at 6. While offerors must be given an equal opportunity to revise their proposals, and the Federal Acquisition Regulation (FAR) prohibits favoring one offeror over another, discussions need not be identical; rather, discussions must be tailored to each offeror's proposal. FAR §§ 15.306(d)(1), (e)(1); WorldTravelService, B-284155.3, Mar. 26, 2001, 2001 CPD ¶ 68 at 5-6.

Here, we do not agree that the agency acted more favorably toward NCI by advising it that its price appeared high or that certain of its labor rates appeared overstated. While the agency did not assign ratings to the price proposals or otherwise consider NCI’s price or labor rates to be weaknesses requiring a discussion item, it is inherently within an agency's discretion to inform an offeror during discussions that its price appears to be high in comparison to other offeror's proposed prices. DeTekion Security Systems, Inc., B-298235, B-298235.2, July 31, 2006, 2006 CPD ¶ 130 at 13. Moreover, the Army was not required to note areas where GDIT could have exceeded the agency’s requirements--such as in the qualifications of its proposed personnel--as a consequence of having held discussions with NCI regarding its pricing. Rather, as noted above, discussions must be tailored to each offeror’s proposal and agencies are not obligated to spoon-feed offerors as to each and every item that could be revised to improve their proposals. ITT Indus. Space Sys., LLC, B-309964, B-309964.2, Nov. 9, 2007, 2007 CPD ¶ 217 at 12. Accordingly, we see no error in the Army’s conduct of discussions in this case.  (General Dynamics Information Technology, Inc., B-406059.2, Mar 30, 2012)


Unequal Discussions

Finally, MEI and AMTEC argue that the agency treated the offerors unequally in discussions. While offerors must be given an equal opportunity to revise their proposals, and the FAR prohibits favoring one offeror over another, discussions need not be identical; rather, discussions must be tailored to each offeror's proposal. FAR sections 15.306(d)(1), (e)(1); WorldTravelService, B-284155.3, Mar. 26, 2001, 2001 CPD para. 68 at 5-6.

Here, MEI and AMTEC do not demonstrate that there was any specific topic of discussions where the awardee was treated more favorably than the protesters, i.e., that the agency provided more detailed discussion questions for D&Z for a particular issue and less for MEI or AMTEC on the same issue. Instead, the protesters argue that the agency generally provided more details for D&Z in its discussion questions and less detail for MEI and AMTEC in their discussion questions.

Although the record shows that each offeror received both general and specific questions, we find that there was no pattern of favoritism towards D&Z. For example, the agency advised D&Z during discussions, with regard to its automated AIE process for inspecting for five critical defects in assembled grenades required "additional detail describing whether a direct line of sight is available to inspect for all critical characteristics." AR, Tab 17, D&Z Discussion Questions, Mar. 30, 2010, at 2. Following discussions, the agency concluded that D&Z's response merited a significant weakness because two of the five inspections could not be performed due to the orientation of the assembled grenade in its packaging. AR, Tab 8, SSD, at 15. Although the agency was aware prior to discussions as to which of the two tests were of concern, see AR, Tab 33, D&Z Initial Evaluation, Individual Evaluator Notes, the agency did not identify these for D&Z, and instead requested that D&Z generally address whether all inspections could be performed. The agency also asked D&Z broad questions, such as "provide additional information on resources required to successfully support the process for technology insertion, product or process improvements," AR, Tab 17, D&Z Discussion Questions, Mar. 30, 2010, at 3, even though this request merely directed D&Z to the general area of a requirement under the management and technology insertion plan subfactor.

While AMTEC and MEI were each asked general questions concerning certain areas during discussions, they were also asked to address specific questions as well. For example, the Army asked MEI to explain "how MEI's inspection process for detonator well depth and diameter on one loaded assembly every four hours at the loading facility meets the [VL-VII] requirements of MIL‑STD-1916." MEI AR, Tab 6-1, MEI Discussion Questions, Mar. 30, 2010, at 2-3. Another example is the agency's request for MEI to address the following specific concern:

Provide additional detail regarding the 12-hour delay required for the Composition B-filled bodies to be drilled. Explain how this approach will meet the specific gravity checks that are required to be performed every 4 hours per DTL9235492, and how MEI intends to monitor the process for consistent quality. Include in the detail how product will be segregated in the event a nonconformance is detected, and how the risk of nonconforming product entering the lot will be mitigated.

Id. at 2.

Similarly, AMTEC was asked during discussions to "provide a copy of AMTEC's current Quality Manual as identified in the RFP." AMTEC AR, Tab 6-1, AMTEC Discussion Questions, Mar. 30, 2010, at 2. Another example of a specific question to AMTEC during discussions was the agency's request that the protester address how its proposed fuze subcontractor could perform the contract requirements "without interference to other contractual obligations (such as M227 or M201 fuzes) that utilize the same production facilities and equipment." Id.

In sum, we do not think that the record shows that the agency treated the offerors in an unequal manner based on the varying level of detail in the questions asked to the offerors during discussions.  (Martin Electronics, Inc.; AMTEC Corporation, B-404197; B-404197.2; B-404197.3; B-404197.4; B-404197.5, January 19, 2011)  (pdf)


EMS asserts that the Navy improperly conducted price discussions only with IMS after receipt of FPRs. EMS Letter, Sept. 25, 2009, at 2-3. The record indicates that, following receipt of FPRs, the Navy contracting specialist discovered that errors in IMS's proposal had resulted in a significant overstatement of IMS's price. Navy Letter, Sept. 23, 2009, exh. E. The contracting specialist advises that, with regard to five separate line items (CLIN) in IMS's proposal, each relating to accelerated delivery of certain supplies and services, the proposed "Amount" (approximately $160,000 in each case) had not been carried forward to the "Net" amount entry for each CLIN. Id.; AR, Tab 15, IMS Proposal, at 16, 31, 46, 61, and 76. Rather, the "Net" amount for each CLIN had been drastically miscalculated, increasing the proposed "Amount" entry for each of the five CLINs from approximately $160,000 to over $7 million each. The contracting specialist determined that the overstatement was clearly erroneous and contacted IMS to confirm that, in each case, the stated CLIN "Amount" was correct and that the calculated "Net" amount was erroneous. IMS confirmed that this was the case.

EMS asserts that the contracting specialist's contact with IMS to confirm the error constituted discussions, since it "allowed IMS to modify its proposal," and that EMS similarly should have been permitted to revise its proposed price. EMS Letter, Sept. 25, 2009, at 2-3. We do not agree. While discussions provide a firm the opportunity to make substantive revisions to its proposal, TDS, Inc., B-292674, Nov. 12, 2003, 2003 CPD para. 204 at 6, and thus must be held with all competitive range offerors, agencies are permitted to initiate limited exchanges--clarifications--with any offeror in order to clarify aspects of a proposal or to resolve minor or clerical mistakes. See FAR sect. 15.306(a). Here, the contracting specialist contacted IMS only to confirm an obvious error in its pricing; IMS's confirming this error and the apparent intended price did not rise to the level of a proposal modification, but, rather, constituted a permissible clarification. IPlus, Inc., B-298020, B‑298020.2,

June 5, 2006, 2006 CPD para. 90 at 3-7. See, e.g., Park Tower Mngt. Ltd., B-295589, B‑295589.2, Mar. 22, 2005, 2005 CPD para. 77 at 7 (contracting officer's contacts with awardee after discussions were held and final proposals received were clarifications and not invitation to modify or revise awardee's proposal). Accordingly, the agency's actions did not trigger the obligation to initiate discussions with EMS and other offerors. 
(EMS Ice, Inc., B-401688.3; B-401688.6, October 8, 2009) (pdf)


In late February and early March, the agency conducted an initial evaluation of the offerors’ responses to the discussion letters, and summarized the results in technical evaluation reports. The reports state that CDG’s response successfully demonstrated that each of its proposed personnel met the minimum requirements of the solicitation, but that all other offerors, including Bara, failed to provide sufficient information to demonstrate whether their proposed personnel met the solicitation requirements. AR, Tabs 10, 11, Technical Evaluation Reports; Agency Supp. Response, June 26, 2009 at 2. After reviewing these results, the agency undertook further exchanges with all offerors except CDG, in order to clarify whether the resumes of the proposed personnel submitted by those offerors met the solicitation’s requirements. Following these exchanges, on March 17, the contracting officer prepared a technical review which indicated that, in addition to CDG, Bara and two of the four other offerors had demonstrated that their proposed personnel met the requirements of the solicitation and that their proposals were technically acceptable.

On March 24, the contracting specialist sent notices to each technically acceptable offeror, indicating that discussions were concluded and that final proposal revisions were due by April 10. Each of those offerors submitted a revised pricing proposal by the due date. Neither CDG or Bara revised their technical proposal.

Of the four offerors that submitted final revised proposals, Bara submitted the lowest-priced proposal and CDG submitted the second lowest-priced proposal. All offerors were informed that Bara was the apparent successful offeror on April 13, and the award was made to Bara on April 22. CDG received a written debriefing on April 27, and answers to additional questions on April 29. CDG then filed this protest on May 1. CDG alleges that Bara’s response to the agency’s February 2 discussion letter was insufficient to demonstrate that Bara met the minimum requirements of the solicitation; the agency’s additional exchanges with Bara amounted to improper discussions; and even considering the information that Bara provided during the alleged improper discussions, Bara still failed to demonstrate that all of its proposed personnel met the solicitation’s requirements.

We first address the allegation of improper discussions. CDG states that up to the point of the agency’s evaluation of the offerors’ responses to the February 2 discussion letters, all offerors were treated fairly and equally. However, CDG argues that the exchanges after that point, which took place between the agency and all offerors other than CDG, constituted discussions under Federal Acquisition Regulation (FAR) sect. 15.306(d), and were therefore required to include all offerors. CDG argues that this agency conduct clearly demonstrates that the agency was favoring other offerors over CDG by allowing revisions to technical proposals after the February 13 response date.

While we agree that the exchanges in question constituted an additional round of discussions under FAR sect. 13.506(d), see Gulf Copper Ship Repair, Inc., B-293706.5, Sept. 10, 2004, 2005 CPD para. 108 at 6, under the circumstances here, we fail to see how the discussions were unfair to CDG or how CDG was prejudiced by the agency’s action. The solicitation provided for a low-priced/technically acceptable competition and a pass/fail evaluation of technical proposals. Solicitation at 33. Accordingly, “technically acceptable” was the highest available technical rating, and a proposal rated technically acceptable could not be further improved. CDG’s proposal was rated technically acceptable after the agency’s initial evaluation of the responses to the February 2 discussion letters. AR, Tab 10, CDG Technical Evaluation Report. Therefore, because it was not possible for CDG to improve its technical proposal after the initial evaluation, the agency’s subsequent discussions with offerors whose proposals were not technically acceptable did not deprive CDG of any opportunity afforded to other offerors in the competition. Further, CDG was not deprived of the opportunity to make revisions to its proposal had it chosen to do so, as all offerors were directed to submit final revised proposals after they were informed that the discussions period had closed on March 24.[2] AR, Tab 14, Request for Final Proposal Revisions. Thus, given the circumstances here, the challenged discussions do not provide a basis for our Office to sustain the protest. See Rosemary Livingston--Agency Tender Official, B-401102.2, July 6, 2009, 2009 CPD para. __ at n.9; Heritage Garden Ctr., Inc.; S.C. Jones Servs., Inc., B-248399.4, Oct. 28, 1992, 92-2 CPD para. 290 at 5. (Commercial Design Group, Inc., B-400923.4, August 6, 2009)  (pdf)


ROG contends that a July 2, 2007 e-mail from RPCI to VA forwarding additional supporting material regarding its technical proposal constituted a late proposal modification--since it was received after the deadline for initial proposal submission --that could not be considered in the evaluation. Supp. Protest at 2-4. In this regard, the July 2 e-mail transmitted “additional quality/ performance evaluations” and asked that the information be forwarded “to the committee reviewing the proposals.” AR exh. 8. The four pages of attachments included an accreditation certificate from the American College of Radiology (ACR), a statement of satisfactory performance from the Radiation Therapy Oncology Group (RTOG) of the ACR, and two pages of RTOG evaluation data, which the e-mail described as relating to “quality assurance and data management.” Id. The information was included in the copy of RPCI’s proposal furnished with the agency’s report.

The material submitted with the July 2 e-mail appears to support RPCI’s technical proposal with regard to the quality subfactor (under the technical factor). Id.; RFP at 37. The agency does not assert that the information was not material, and we find nothing in the record to indicate that it was not. Further, the record--which, as discussed below, is almost completely lacking in narrative discussion of the source selection decision--does not establish the extent to which the materials submitted by RPCI were considered in the agency’s technical evaluation. ROG raised this protest ground in its supplemental protest (filed on July 28) and, in its initial response to the supplemental protest, the agency did not address whether it had considered the July 2 material in the evaluation. Supp. AR at 3.  Subsequently, we specifically requested that the agency address the issue. GAO Memorandum to the Parties, Aug. 20, 2008. In its response to our request, the agency still did not assert that it did not consider the material in the evaluation, and it did not otherwise address the issue on the merits. (Rather, the agency asserted only that the argument should be dismissed as untimely; we find that the argument was timely raised.) VA Letter to GAO, Aug. 25, 2008. Based on this record, we are left to conclude that the agency considered the material in the evaluation of RPCI’s proposal.

Under Federal Acquisition Regulation (FAR) clause 52.212-1(f), Instructions to Offerors--Commercial Items, incorporated in the RFP, an offer, modification, or revision of a proposal is not to be considered (unless it is by the otherwise successful offeror, which is not the case here) if it is received after the exact time specified for receipt of offers. See FAR sect. 15.208. Since RPCI’s additional materials were submitted on July 2, after the closing time, they were late and could not properly be considered. See Sunrise Med. HHG, Inc., B‑310230, Dec. 12, 2007, 2008 CPD para. 7.

The protester also contends, and we agree, that the agency’s consideration of the late material essentially constituted improper discussions with only one offeror. Exchanges between a procuring agency and an offeror, including proposal revisions, that permit the offeror to materially modify its proposal generally constitute discussions. Univ. of Dayton Research Inst., B‑296946.6, June 15, 2006, 2006 CPD para. 102. When an agency permits one offeror to revise its proposal, it must provide all competitive range offerors with the same opportunity. Fritz Cos., Inc., B-246736 et al., May 13, 1992, 92-1 CPD para. 443. Here, ROG was not provided an opportunity to revise its technical proposal. Consequently, we sustain the protest on this ground.  (Radiation Oncology Group of WNY, PC, B-310354.2; B-310354.3, September 18, 2008) (pdf)


There was nothing improper in the discussions here. While an agency may not coerce or mislead an offeror into raising its price, Research Analysis and Maint., Inc. , B-272261, B-272261.2, Sept. 18, 1996, 96-2 CPD 131 at 11, the agency did not do that here. Rather, the agency's statements (to both the protester and the awardee) merely reflected its reasonable concern that, because some of First Preston's and MCB's prices were low compared to the estimate and the other prices received, they might not include enough to cover the cost of performing all requirements. The offerors were simply given the opportunity to review their pricing, and their decisions to revise certain prices upward or downward reflects the exercise of the firm's business judgment, not improper conduct by the agency. Professional Landscape Mgmt. Servs., Inc. , B-286612, Dec. 22, 2000, 2000 CPD 212 at 5. We note, furthermore, that the agency's expressed concerns about First Preston's pricing were based, not solely on a comparison to the government estimate, as the protester alleges, but on a price reasonableness evaluation that also took into account a comparison among offerors' proposed prices, which showed that First Preston's pricing was low. AR, exh. 27, at 814. In any case, even if we agreed with First Preston that the agency's discussion questions were misleading in nature, there is no indication that First Preston was misled. With respect to CLIN0001, First Preston raised its price because it had failed to include certain costs in its initial offer; in other words, First Preston reviewed its pricing in response to the discussions and apparently agreed with the agency's concern that its CLIN0001 price was too low. Under CLIN 0002, the other area where the agency had stated that its pricing was low, First Preston ignored the agency's concern and made no change to its pricing. As for CLIN 0003, First Preston raised its price during the first round of discussions, notwithstanding that the agency had made no comment regarding whether its price appeared high or low. And finally, during the second round of discussions, when First Preston was advised that all of its proposed CLIN prices appeared a little low, the firm elected to make no changes to its pricing. We conclude that it was First Preston's business judgment, rather than the content of the agency's discussion questions, that led it to raise its pricing from its initial proposal. Hago-Cantu Joint Venture , supra , at 10. (First Preston Housing Initiatives, LP, B-293105.2, October 15, 2004) (pdf)


Here, after receipt of final revised proposals, the Forest Service afforded Rickaby the opportunity to revise its price, and Rickaby in fact significantly lowered its price. While the agency’s action may have resulted from an attempt to remedy the effects of misleading agency advice during discussions, nevertheless, in giving Rickaby an additional opportunity to revise its price, the Forest Service reopened discussions with Rickaby, and only with Rickaby. Since the agency reopened discussions with one offeror in the competitive range, the agency should have reopened discussions with all offerors in the competitive range at that time. Rockwell Elec. Commerce Corp. , supra . In these circumstances, we find unobjectionable the agency’s subsequent determination to do what it should have previously done, that is, reopen discussions with all offerors. The fact that the agency took corrective action after announcing an award to Rickaby and disclosing Rickaby’s contract price does not render the corrective action improper. Where the corrective action taken by an agency is otherwise unobjectionable, a request for revised price proposals is not improper merely because the awardee’s price has been exposed. Strand Hunt Constr., Inc. , B‑292415, Sept. 9, 2003, 2003 CPD ¶ 167 at 6. (National Shower Express, Inc.; Rickaby Fire Support, B-293970; B-293970.2, July 15, 2004)  (pdf)


Our review of the record here does not support the protester’s contention that the agency misled it into increasing its price. Although the agency identified for Kaneohe and all other offerors during the first round of discussions several instances where their prices differed from the agency’s estimates, and then released its government estimates to all offerors during the second round of discussions, the record does not indicate that Kaneohe or any other offeror was requested or advised to change its prices in any way. Rather, it is clear from the record that the agency’s release of the government estimates was for informational purposes to assist offerors in their proposal preparation. All offerors were provided the government estimates and were advised to use the information to review and confirm the accuracy of their prices; again, no offeror was advised to revise its prices in any way. Further, all offerors were told not only that the agency’s price analysis would be conducted by comparison to proposed prices (i.e., not by comparison to the agency’s estimates), but that price would be an important factor for award, as the RFP gave it equal weight to all technical factors combined. In this regard, we believe the agency’s discussion letters should have provided an incentive to all offerors, including Kaneohe, to submit their lowest possible prices to remain competitive under the RFP. We thus do not find persuasive the protester’s position that the agency’s discussion letters unfairly induced it to increase its price in any way. Rather, we conclude that the protester’s decision to increase its overall price during discussions can be attributed only to an exercise of its own business judgment, and not to any improper action on the agency’s part. (Kaneohe General Services, Inc., B-293097.2, February 2, 2004) (pdf)


An agency may not consciously coerce or mislead an offeror into raising its price. Professional Landscape Mgmt. Servs., Inc., B-286612, Dec. 22, 2000, 2000 CPD ¶ 212 at 5. Where an agency's discussions, however, merely reflect a reasonable concern that an offeror's low proposed labor rates may affect its ability to attract and retain qualified personnel, and the agency requests that the offeror explain how it intends to attract and retain qualified personnel at the rates proposed, the discussions are not coercive or misleading. Research Analysis & Maint., Inc., B-272261, B-272261.2, Sept. 18, 1996, 96-2 CPD ¶ 131 at 11.  Here, as set forth above, the record establishes that the agency did not coerce or mislead ESU into raising its proposed labor rates. Rather, the record demonstrates that the agency merely informed ESU of the agency's belief that a number of ESU's labor rates were low in relation to the firm's stated intention to retain most if not all incumbent personnel, and as a result, asked ESU in discussions to substantiate how it intended to attract and retain incumbent personnel at the rates proposed. We note that it was ESU's decision to propose attracting the entire incumbent workforce as the means by which to mitigate any performance risk or disruption. Additionally, it was ESU's decision to propose retaining all incumbent employees at wage rates at or above current ones. Likewise, it was ESU's decision, in response to the agency's discussions, to raise its proposed labor rates so as to be able to attract and retain all incumbent personnel.[8] Quite simply, we find nothing improper in the agency's inquiry during discussions into the perceived inconsistency between ESU's stated intent to attract and retain all incumbent personnel at or above current labor rates, and the labor rates that ESU had in fact proposed.  (Engineering Services Unlimited, Inc., B-291275; B-291275.2, December 17, 2002)  (txt version)


On the basis of the record here, we find that the agency's exchanges with PSI regarding its delivery record, when viewed together with the agency's failure to conduct similar exchanges regarding MEI's delivery record, constituted conduct which improperly favored PSI and violated the provisions of FAR S: 15.306(e)(1). (Martin Electronics, Inc., B-290846.3; B-290846.4, December 23, 2002.)  (txt version)


Agency did not conduct unequal discussions where agency held technical discussions with awardee, whose technical proposal was initially evaluated as containing a number of weaknesses, while conducting no technical discussions with protester, whose initial proposal did not contain any weaknesses or deficiencies.  (Cherokee Information Services, B-287270, April 12, 2001)


Protest that contracting agency conducted inadequate and unequal discussions as between the protester and awardee is denied where the record shows that the agency properly tailored discussions to each offeror, and provided each the same opportunity to revise its proposal.  (WorldTravelService, B-284155.3, March 26, 2001)

Comptroller General - Listing of Decisions

For the Government For the Protester
Bannum, Inc., B-409831: Jul 30, 2014  (pdf) New Global Language Center B-413503.8: Jun 1, 2017
H P Enterprise Services, LLC, B-409169.3, B-409169.4: Jun 16, 2014  (pdf) SRA International, Inc. B-410973, B-410973.2: Apr 8, 2015  (pdf)
General Dynamics Information Technology, Inc., B-406059.2, Mar 30, 2012 Marathon Medical Corporation, B-408052: Jun 4, 2014  (pdf)
Martin Electronics, Inc.; AMTEC Corporation, B-404197; B-404197.2; B-404197.3; B-404197.4; B-404197.5, January 19, 2011  (pdf) Radiation Oncology Group of WNY, PC, B-310354.2; B-310354.3, September 18, 2008 (pdf)
EMS Ice, Inc., B-401688.3; B-401688.6, October 8, 2009 (pdf) Martin Electronics, Inc., B-290846.3; B-290846.4, December 23, 2002.  (txt version)
Commercial Design Group, Inc., B-400923.4, August 6, 2009  (pdf)  
First Preston Housing Initiatives, LP, B-293105.2, October 15, 2004 (pdf)  
National Shower Express, Inc.; Rickaby Fire Support, B-293970; B-293970.2, July 15, 2004  (pdf)  
Kaneohe General Services, Inc., B-293097.2, February 2, 2004 (pdf)  
Engineering Services Unlimited, Inc., B-291275; B-291275.2, December 17, 2002)  (txt version)  
Cherokee Information Services, B-287270, April 12, 2001  
WorldTravelService, B-284155.3, March 26, 2001  
Biospherics, Inc., B-285065, July 13, 2000  
National Projects, Inc., B-283887, January 19, 2000  
KBM Group, Inc., B-281919; B-281919.2, May 3, 1999  

U. S. Court of Federal Claims - Key Excerpts

The government, when conducting discussions with offerors in the competitive range, may not “engage in conduct that . . . [f]avors one offeror over another.” 48 C.F.R. § 15.306(e) (2008). This regulation does not permit a procuring agency to engage in unequal discussions, where a crucial and advantageous piece of information is withheld from some but not all offerors remaining in the competition. See, e.g., Metcalf Constr. Co. v. United States, 53 Fed. Cl. 617, 634-35 (2002) (holding, in that case, that “the bidders were treated unequally where one bidder was advised, in no uncertain terms, not to exceed the budget ceilings, and a second bidder under identical circumstances was not”). Nonetheless, “agencies are not required to conduct identical discussions with each offeror.” Femme Comp, 83 Fed. Cl. at 735 (citing WorldTravelService v. United States, 49 Fed. Cl. 431, 440 (2001)). Rather, the procuring agency should tailor discussions to each offeror’s proposal. WorldTravelService, 49 Fed. Cl. at 440.

Here, plaintiff asserts that another offeror, Tapani, was given information about a safe working elevation on the jetty bullnose, i.e., +22 feet MLLW, that was undisclosed to Kerr. Pl.’s Mot. at 25. Plaintiff also argues that Tapani revised its technical proposal based on this information. Id. (citing AR at 1297). In Kerr’s revised jetty stone placement plan, Kerr described its excavators as working at +10 feet MLLW. AR at 913-14. Kerr received an unacceptable rating in the safety subfactor because Kerr proposed an unsafe working elevation for its excavators. Id. at 280. Plaintiff concludes that the Corps impermissibly favored Tapani over Kerr in the discussions held July 9, 2009. Pl.’s Mot. at 25.

The Corps sent discussions letters to the three offerors whose proposals had been rated technically unacceptable, and in each of these letters, notice was given concerning the risks of working on the jetty bullnose at lower elevations: “Added risk of equipment operation at a lower elevation at the head of the jetty was not addressed [in your proposal].”16 AR at 322 (Tapani letter), 326 (Steelhead letter), 330 (Kerr letter). In the talking points memoranda prepared for the discussions meetings on July 9, 2009, the Corps noted that Kerr would be asked to “provide more detail on the [jetty stone] placement plan and how they intend to utilize the equipment listed”; Steelhead would be asked to “provide further [jetty stone] placement detail . . .”; and, Tapani would be asked to “submit a more detailed and revised [jetty stone] placement plan.” Id. at 334, 338, 340. It is clear from the record that the Corps’ written communications to the offerors concerning safe working elevations were fundamentally equal, and that pre-negotiation goals for discussions envisioned fair and equal discussions, tailored to the individual proposals that the Corps had reviewed and evaluated.

On July 9, 2009, the meeting with Kerr began at 9:00 a.m. AR at 286. The notes from the meeting indicate that the letter to Kerr cited above was “reviewed in detail.” Id. In the court’s view, this notation means that Kerr was reminded at the discussions meeting that work on the jetty bullnose at lower elevations was an “added risk.” Indeed, the notes report that “Mr. Kerr stated based on the July 1 letter, it appeared that the Corps w[as] concerned about the safety of operating equipment at 10 feet (ft) elevation.” Id. at 287. Kerr volunteered that it was revising its proposal to use a larger crane, at +22 feet MLLW, but noted that Kerr would still have an excavator at lower elevations. Id. The Corps directed Kerr “to include that in their revised proposal.” Id.

The Tapani meeting began at 1:00 p.m., and was the last discussions meeting held that day. AR at 289. Tapani described a revised “5-stage plan to place jetty stones . . . [which would] use the crane at the [+]10 ft level . . . .” Id. The Corps noted that it “had serious concerns regarding the safety of working at the 10 ft elevation.” Id. When Mr. Tapani specifically asked what elevation was considered safe, “Mr. Edwards stated that the top of the jetty crest at elevation 22 ft was considered relatively safe.” Id. The meeting moved on to other topics, including the size of the crane needed for the job. Id.

The record shows that the Corps addressed the risks of working at +10 feet MLLW with both Tapani and Kerr. Tapani’s safe working elevation question arose when Tapani presented details of its revised plan to station its small crane, not excavators, at +10 feet MLLW.17 The only significant difference between these discussions is that Tapani asked for and received guidance as to a safer elevation, +22 feet. Because both discussions addressed the safety risks of working at +10 feet, the court must decide whether the additional comment from the Corps stating that +22 feet “was considered relatively safe” made these discussions unequal, and, if so, whether this error was prejudicial to Kerr.

A more typical example of unequal discussions invalidating a procurement is where the successful bidder received a helpful critique of its initial proposal during discussions, improved its proposal in that respect, and received a higher score for its proposal than the protestor, who received no warning that improvement of that aspect of its proposal was necessary. For example, in a bid protest sustained by the Government Accountability Office (GAO), “the majority of the difference in technical scores between the[] proposals” of the winning bidder and the protestor could be attributed to an advantage gained through unequal discussions, and GAO therefore concluded that “[t]he agency thus treated the offerors unequally on this point, with the awardee receiving a prejudicial competitive advantage as a result.” M&S Farms, Inc., B-290599, 2002 CPD ¶ 174, 2002 WL 31323424, at *7 (Comp. Gen. Sept. 5, 2002). This court has also condemned unequal discussions which produce a comparative, prejudicial advantage for contract awardees. See, e.g., AshBritt, 87 Fed. Cl. at 377 (noting that two successful offerors in that case were favored by unequal discussions which permitted them to remedy a significant omission in their proposals, whereas the protestor was not alerted to the same omission during discussions and received a downgraded score for that omission); Gentex Corp. v. United States, 58 Fed. Cl. 634, 653 (2003) (holding that unequal discussions, along with other procurement errors, constituted prejudicial and impermissible favoritism benefitting the contract awardee in that case).

Here, however, the facts are not analogous, because there is no allegation, or the slightest indication in the record, that unequal discussions favored Kiewit, the contract awardee. More specific safety information provided Tapani cannot be construed as giving Kiewit a comparative advantage over Kerr. For this reason, the court finds that even if the more specific safety information provided to Tapani constituted unequal discussions in this procurement, the alleged error was not prejudicial to Kerr and the alleged procurement error cannot justify judicial intervention under the binding law of this circuit.18 Labatt, 577 F.3d at 1379 (stating that prejudice is shown when the protestor points to a procurement error which “resulted in a contract award to a bidder who was unfairly advantaged by the government’s error”); see also OMV Med. Inc.; Saratoga Med. Ctr., Inc., B-281387, B-281387.2, B-281387.3, B-281387.4, 99-1 CPD ¶ 52, 1999 WL 140177, at *6 (Comp. Gen. Feb. 3, 1999) (holding that the protestor “could not have been prejudiced by these allegedly improper [unequal] discussions, since the agency did not hold such discussions with the awardee”).  (Kerr Contractors, Inc., v U. S. and Kiewit Pacific Co, No. 09-523C, October 13, 2009) (pdf)


The Agency Conducted Unequal Discussions With Regard To HBCU/MI Goals

AshBritt correctly argues that the agency’s discussions regarding the need to address the HBCU/MI goals were misleading, incomplete, and unequal. During discussions, the agency did not mention to AshBritt its failure to address HBCU/MI goals in its proposal. However, the agency raised this same failing with both ECC and Phillips & Jordan. ECC’s discussion agenda indicated that ECC had failed in its original proposal to mention utilizing HBCU/MIs, and Phillips & Jordan’s discussion agenda indicated that Phillips & Jordan’s subcontracting plan “does not address HBCU/MI.” AR at 463, 469. In response to these discussions, both ECC and Phillips & Jordan revised their proposals to address HBCU/MI goals, and the agency deemed these revisions to be strengths. AR at 1200, 1203.

Importantly, the source selection decision expressly acknowledged the value of ECC’s and Phillips & Jordan’s HBCU/MI participation as part of its best value tradeoff determination. The decision noted that “ECC’s subcontracting plan included goals for [HBCU and MI] and specifically assigned tasks in the plan for those institutions.” AR at 612.26 In a similar vein, in describing Phillips & Jordan’s plan, the source selection decision stated:

Phillips and Jordan’s revised proposal included significant improvements to its subcontracting plan. It included a new subcontracting plan with commitments to utilize HBCU AND MI. Also, the plan identifies specific areas of a debris mission that could be set-aside to the HBCU AND MIs. . . . AFARS Appx DD Checklist was utilized and the score doubled from their previous evaluation.

AR at 621.

In stark contrast, the source selection decision related that AshBritt “lost points in the evaluation for not addressing efforts to involve HBCUs and MI in performing the contract [or identifying] and overcoming obstacles that may prohibit award to these institutions.” AR at 616.

It is well established that an agency may not opt to discuss the identical aspect of a proposal with some offerors but not others. See, e.g., Gentex, 58 Fed. Cl. at 652-55 (finding unequal discussions where agency discussed technical alternatives to design specifications with one offeror but not another); M&S Farms, Inc., No. B-290599, 2002 Comp. Gen. Proc. Dec. ¶ 174, 9-10 (Sept. 5, 2002) (sustaining protest where agency notified one offeror but did not notify protestor of same defect in technical proposal). The FAR does not allow contracting officers to engage in “conduct that [f]avors one offeror over another.” FAR § 15.306(e)(1). The record indicates that four offerors -- AshBritt, ECC, Ceres, and Phillips & Jordan -- failed to address HBCU/MI goals in their initial proposals. While the agency advised both ECC and Phillips & Jordan of this failure during discussions, the agency did not mention this to AshBritt or Ceres.

Compounding this error, the solicitation was ambiguous regarding whether offerors were required to address a specified HBCU/MI utilization goal of “zero.” On one hand, the solicitation set the HBCU/MI utilization goal as “zero,” but on the other hand, an evaluation guide referenced in the solicitation, Appendix DD, emphasized the importance of utilizing HBCU/MIs -- expressly requiring deductions in scoring when these entities were not mentioned in the subcontracting plans. AR at 739-43.28 The agency’s discussions resolved this ambiguity for ECC and Phillips & Jordan, but not for AshBritt -- these offerors were essentially told via discussions they had better address their HBCU/MI participation in their subcontracting plans despite the solicitation’s stated goal of zero, while AshBritt was not given this guidance. This conduct is a clear and prejudicial violation of FAR § 15.306(e)’s requirement that Government personnel shall not engage in conduct that favors one offeror over another. As this Court recognized in Gentex, an agency’s discretion in holding discussions “is not a license to mislead an offeror.” 58 Fed. Cl. at 653; see American K-9 Detection Services, Inc., No. B-400464.6 (May 5, 2009) at 7.  (Ashbritt, Inc., v. U. S. and Ceres Environmental Services, inc. and Environmental Chemical Corporation, No. 08-473C, June 25, 2009)  (pdf)


In Count I, plaintiff alleges that: the Navy conducted unequal discussions in violation of Federal Acquisition Regulation (FAR) 15.306. The cited FAR 15.306 is titled “Exchanges with offerors after receipt of proposals,” and FAR 15.306(e) is titled “Limits on exchanges.” FAR 15.306(e) states: “Government personnel involved in the acquisition shall not engage in conduct that – (1) Favors one offeror over another[.]” 48 C.F.R. § 15.306(e) (2008). See, e.g., Metcalf Constr. Co. v. United States, 53 Fed. Cl. 617, 633-35 (2002) (applying FAR 15.306(e)(1), in which the court found that bidders were treated unequally during discussions when one bidder was advised by the agency not to exceed the budget ceilings, and a second bidder was not similarly advised); see also Gentex Corp. v. United States, 58 Fed. Cl. 634, 653 (2003).

Plaintiff argues that the Navy, through the use of the terms “overstated” and “significantly overstated” as to line items compared to the Independent Government Estimate (IGE), gave more information to IAP during discussions than it did to plaintiff, which permitted IAP to lower its bid price and win award. Plaintiff highlights the price proposal discussion questions to the offerors. For IAP’s proposal, six of IAP’s fixed price line items were characterized by the Navy as “significantly overstated,” compared to the Independent Government Estimate (IGE). Plaintiff cites the example of line item [deleted] for [deleted]. IAP’s initial proposal was [deleted] for this line item. The IGE for the line item was [deleted]. IAP’s bid for the line item, therefore, was 39.88% higher than the IGE, eliciting from the Navy the “significantly overstated” comment. IAP then reduced its price for the [deleted] line item to [deleted] in its final proposal revision, which is 28.90% below the IGE. Plaintiff estimates that IAP reduced its prices by an average of 60.73% for line items characterized by the Navy during discussions as “significantly overstated,” but only reduced the “overstated” line items by 39.37%. By way of comparison, plaintiff identifies 25 line items in its own proposal which were more than 39.88% over the IGE, but were merely characterized by the Navy as “overstated,” and not “significantly overstated.” Plaintiff, therefore, complains of unequal discussions. Plaintiff argues that if it had been treated equally during discussions, and also told some of its proposal numbers were significantly overstated, it would have made more major reductions in its pricing.

However, rather than, either intentionally or inadvertently, providing signals only to IAP to permit IAP to lower its pricing and win award, the “significantly overstated” characterization appears to reflect the Navy’s concern that, for certain line items, IAP’s price proposal was “unbalanced.” FAR 15.404-1 ties the phrase “significantly overstated” to unbalanced pricing:

Unbalanced pricing may increase performance risk and could result in payment of unreasonably high prices. Unbalanced pricing exists when, despite an acceptable total evaluated price, the price of one or more contract line items is significantly over or understated as indicated by the application of cost or price analysis techniques.

48 C.F.R. § 15.404-1(g)(1) (emphasis added).

That the Navy was addressing its concern about unbalanced pricing in IAP’s pricing proposal is indicated in the following September 8, 2008, Price Evaluation Board Report:

(a) Within SLIN [subline item number] [deleted], the pricing of several of the Contractor’s ELINs [exhibit line item numbers], appear to be unbalanced. Specifically, proposed pricing for [deleted] appears to be significantly overstated compared to the Government Estimate and proposed prices for [deleted] appear significantly understated.

(b) Within the [deleted], it appears that proposed [deleted] prices are unbalanced. Specifically, [deleted] prices for [deleted] appear significantly overstated compared to the Government Estimate. Conversely, the [deleted] prices for [deleted] appear to be significantly understated compared to the Government Estimate.

(emphasis and brackets added).

The Source Selection Authority for this procurement, Cindy Readal, in an affidavit dated May 6, 2009, submitted first to the GAO, confirms that, “where the agency informed IAP that its prices were ‘significantly overstated’ it did so because IAP’s prices for certain ELINS appeared to be unbalanced or reversed,” in contrast with AFM’s prices, and not because IAP’s prices exceeded the Independent Government Estimate by a certain percentage. In fact, IAP did re-balance, or re-allocate costs among line items, as reflected in IAP’s responses to discussion questions raising the balancing issue.

(sections deleted)

Plaintiff focuses only on the phrase, “significantly overstated,” but noting the companion references to “unbalanced” pricing and “significantly understated” line items, and the Source Selection Authority’s affidavit, the Navy’s comments during discussions are placed in context. The language in question appears to be an attempt to tailor discussions to the Navy’s concern that, on a number of line items, IAP may have had unbalanced pricing, warranting review and correction as needed. As such, use of the phrasing by the Navy was reasonable. See 48 C.F.R. § 15.306(d)(1) (“Discussions are tailored to each offeror’s proposal, and must be conducted by the contracting officer with each offeror within the competitive range.”); World Travel Serv. v. United States, 49 Fed. Cl. 431, 439 (2001)) (“[T]he agency should tailor its discussions to each offer, since the need for clarifications or revisions will vary with the proposals. Ultimately, both the decision to conduct discussions and the scope of any discussions are left to the judgment of the contracting officer.”) (citations omitted).  (Academy Facilities Management, v. U. S. and IAP World Services, Inc., No. 09-302C, June 5, 2009)  (pdf)


Three discrete circumstances in this procurement combine to make the competition unfair with regard to the evaluation of batteries. First, the RFP did not advise offerors that they could “trade off” noncompliance with non-KPP threshold technical requirements, have this evaluated as a CAIV initiative, and receive evaluation credit pre-award. Secondly, the Air Force’s discussions with Scott (but not Gentex) suggested that a CAIV tradeoff could be done in the evaluation phase with batteries. Finally, Gentex’s proposal and oral presentation made it clear to the Air Force that Gentex read the RFP to prohibit pre-award CAIV tradeoffs and to require compliance with all solicitation requirements. The Air Force did not disabuse Gentex of its fundamentally different interpretation of the RFP requirements and evaluation scheme and awarded to a vendor which had evidenced the opposite interpretation.  (Gentex Corporation, v. U. S., No. 03-728C, December 3, 2003) (pdf)


Furthermore, the price bids for the original solicitations, both Griffy's and Easy Tree's, were disclosed by operation of law. This was a consequence of Griffy's own lawsuit, not an attempt by the Army to drive the prices down.  Finally, any prejudice Griffy might suffer from having its bids disclosed is vitiated by the fact that those bids are two years old at this point. Griffy has suffered no harm by the disclosure.  (Griffy's Landscape Maintenance LLC, v. U.S., No. 01-309C, August 17, 2001)


The court finds that the CO could take some form of corrective action provided it was reasonable under the circumstances. In the present case, if defendant were prohibited from sharing the source selection information with all the offerors in the competitive range, plaintiff would retain a competitive advantage. Indeed, plaintiff would be the only offeror with knowledge of: (1) MGM's bid price (and thus the exact price it needed to outbid in reopened negotiations); (2) MGM's technical ratings; and (3) its price ranking in relation to MGM. Consequently, the court finds that the CO's informing all the offerors that they were in the high or low end of the competitive range was a reasonable means of serving to reduce the competitive advantage held by plaintiff. The CO merely disclosed information similar to that obtained by plaintiff in its debriefing.  (DGS Contract Service, Inc. v. U.S., No. 98-891C, March 8, 1999)

U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester
Kerr Contractors, Inc., v U. S. and Kiewit Pacific Co, No. 09-523C, October 13, 2009 (pdf) Ashbritt, Inc., v. U. S. and Ceres Environmental Services, inc. and Environmental Chemical Corporation, No. 08-473C, June 25, 2009  (pdf)
Academy Facilities Management, v. U. S. and IAP World Services, Inc., No. 09-302C, June 5, 2009  (pdf) Gentex Corporation, v. U. S., No. 03-728C, December 3, 2003  (pdf)
Griffy's Landscape Maintenance LLC, v. U.S., No. 01-309C, August 17, 2001 Dynacs Engineering Company, Inc., v. U.S. and Federal Data Corporation, No. 00-166C, October 25, 2000
Cubic Defense Systems, Inc. v. U.S. and Metric Systems Corp., No. 99-144C, December 3, 1999  
DGS Contract Service, Inc. v. U.S., No. 98-891C, March 8, 1999  
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