Thursday, July 21, 2016

Misleading Discussions

Yesterday we discussed a bid protest case where the Army erred in its past performance rating. It gave the same past performance rating of "relevant" to Delfasco who was the incumbent and had been producing the same parts for years as it did to the eventual winning bidder, GTI, who lacked relevant past performance with respect to two necessary skills identified in the solicitation and only somewhat relevant on another skill. The GAO blew the whistle on the Army and sustained the protest (see Nonsensical Past Performance Rating).

There was second appeal in the same case and this one involved misleading discussions. Delfasco challenged the Army's conduct of discussions, asserting that Army either failed to advise it of evaluated weaknesses or misled it into believing that previously raised weaknesses had been satisfactorily resolved.

Here's what happened. As part of the initial round of discussions, the Army issued 18 evaluation notices (ENs) identifying deficiencies and weaknesses, or requesting clarifications with respect to Delfasco's proposal. The offerors, including Delfasco, submitted revised proposals. In the second round of discussions, the Army told Delfasco that five of the original 18 ENs remained. In its final proposal, Delfasco specifically addressed each of the five enumerated remaining weaknesses as identified by the Army.

However, when awarding the contract, the Army identified six additional weaknesses that had not been brought up earlier. GAO called that practice misleading.
Where, as here, an agency provides an apparently exhaustive list of issues for an offeror to address in discussions, we will consider the conduct of discussions to be misleading and unreasonable where that list is incomplete. Additionally, if an agency identifies concerns during a reevaluation of proposals that should have been raised had they been identified before discussions were held, the agency is required to reopen discussion in order to permit the offeror to address those concerns. The agency's failure here to mention any of these six weaknesses in its list of remaining outstanding weaknesses effectively deprived the protester of the opportunity to address and resolve the weaknesses in its (proposal).
The GAO sustained the appeals and required the Army to reimburse Delfasco its costs associated with filing and pursuing the protest plus reasonable attorneys' fees.

You can read the entire GAO decision here.

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