It is a fundamental principle of competitive
negotiations that offerors must be provided with the same
statements of the agency's requirements so as to provide a
common basis for the submission of proposals. Union
Carbide Corp. , B-184495, Feb. 26, 1976, 76-1 CPD 134. The
Navy asserts that the information it provided Eastern did
not in any way change the terms of the solicitation since
the solicitation did not discuss the PPV schedule and thus
that it did not provide Eastern with a competitive
advantage. The information given to Eastern concerning the
PPV program, however, was clearly material for purposes of
proposal preparation since it provided additional
information concerning an important aspect of the agency's
requirements. The RFP expressly identified the risks
associated with the PPV program--the fact that contract
requirements may be eliminated--and warned offerors that
the costs of eliminating requirements due to the PPV
program would not be negotiated. Thus, as SYMVIONICS
notes, a reasonable offeror would have factored the risk
of PPV implementation into its prices. [Deleted].
SYMVIONICS further notes that the Navy has eliminated
hundreds of housing units under two SYMVIONICS contracts
as well as an entire contract for 3,300 housing units, as
a result of the PPV program. Because Eastern knows that
the risk associated with the PPV program is minimal in
this instance, it can more accurately reflect this risk in
its pricing in the recompetition. Since the agency
provided the information in the context of a post-award
debriefing, there was no need at that time to share the
information with the other offerors. However, after the
agency decided to re-open the competition and seek revised
proposals, it was incumbent upon the agency to ensure that
all the offerors had the same information concerning the
PPV program so that they could compete with the same
understanding of the agency's requirements and we sustain
this basis of protest. See EMS Dev. Corp. , B-242484, May
2, 1991, 91-1 CPD 427 at 2-3. (SYMVIONICS,
Inc., B-293824.2, October 8, 2004) (pdf)
As a preliminary matter, we note that FRS's belief that
its proposal was unreasonably evaluated and/or
misunderstood was in part the result of issues brought
up by the Forest Service in the debriefing (e.g.,
water supply sources, communications systems) that were
not in fact considered weaknesses in the evaluation of
FRS's proposal or reasons for the agency's award
decision. See Agency Report, Tab 9,
Technical Evaluation of FRS, at 1; Tab 12,
Recommendation of TEB; Tab 13, Source Selection
Decision. The agency states that it did not
misunderstand FRS's proposal, but only brought up such
issues in the debriefing “for the purpose of helping
[FRS] write a better proposal next time.” Agency
Report, Tab 2, Statement of TEB Chairman. The
purpose of a debriefing is to furnish the basis for the
selection decision and contract award. 10 U.S.C.
§ 2305(b)(5) (2000); OMV Med., Inc.; Saratoga
Med. Ctr., Inc., B-281388 et al., Feb. 3,
1999, 99-1 CPD ¶ 53 at 9 n.3. While it may be
helpful in other contexts for an agency to make
suggestions to an offeror for future procurements, here
the agency's debriefing remarks were, perhaps quite
understandably, misconstrued by the protester. To
the extent that FRS protests that its proposal was
unreasonably evaluated in these areas, however, our
review of the record does not bear this out. (Forest
Regeneration Services LLC, B-290998, October 30, 2002) (pdf) |
