Friday, August 18, 2017

Bid Protest Involving Unequal Discussion With Bidders

YWCA of Greater Los Angeles, a 52 year incumbent, protested the Labor Department's award of a contract to "newbie" Management and Training Corporation (MTC) to operate a Job Corps center in Los Angeles contending that the Labor Department engaged in unequal discussions. The GAO upheld the protest. The reasoning gets a little confusing so hang in there.

The solicitation designated the center's director position as a key personnel position, and required offerors to submit a resume and letter of commitment for the director. The solicitation also advised offerors that they must notify the contracting officer in writing of any change in the availability of the proposed center director when the change in status occurs, at any point in the procurement process. But here's the rub. The solicitation also contained a provision explaining that any offer, modification, or withdrawal received after the exact time specified for receipt of the offers is late and would not be considered.

The GAO has oft explained that offerors are obligated to advise agencies of material changes in proposed key staffing, even after submission of proposals. Additionally, when a solicitation requires resumes for key personnel, the resumes form a material requirement of the solicitation. When the agency is notified of the withdrawal of a key person, it has two options; either evaluate the proposal as submitted, where the proposal would be rejected as technically unacceptable for failing to meet a material requirement, or open discussions to permit the offeror to amend its proposal.

In this case however, the Labor Department maintained that the language in the solicitation afforded it a third option. The GAO did not agree.

The Labor Department argued that the terms of the solicitation permitted offerors to substitute key personnel at any time. They further maintained that allowing offerors to do so does not constitute "discussions". They argued that this situation differed from prior situations considered by the GAO because the solicitation contained an explicit requirement that offerors notify the Labor Department if any of their proposed key personnel become unavailable. Thus, according to the Labor Department, it did not conduct improper "discussions" but simply allowed MTC to make a late key personnel substitution as permitted by the solicitation. Sounds like a reasonable interpretation, right?

YWCA on the other hand argued that the plain language of the solicitation does not support the Labor Department's interpretation because it is silent with regard to the submission of a proposal revision substituting a new key person for one that becomes unavailable. YWCA further argued that the Labor Department's interpretation would create a conflict between the key personnel notification provision and the provision dealing with late modifications provision because the late modification provision  does not contain an exception for the type of proposal modifications necessary to propose new key personnel after the time specified for the receipt of offers.

GAO agreed with YWCA. GAO stated that the plain language creates nothing more than an obligation for an offeror to provide notification if proposed key personnel become unavailable. The Labor Department's interpretation would be in conflict with the provision prohibiting late modifications. The notification requirement did not implicitly grant special permission for offerors to make late modifications regarding key personnel.

The GAO made another point:
Further, even assuming for the sake of argument that the solicitation could reasonably be read to permit offerors to make late substitutions of key personnel, the agency's decision to allow MTC to submit a late modification to its proposal would still have been tantamount to the conduct of discussions. Submission of key personnel resumes after receipt of final proposals constitutes discussions, not clarifications, because without the resumes, the proposal would omit material information required by the RFP. When an agency conducts discussions with one offeror, it must conduct discussions with all offerors in the competitive range. Here we find the agency's conduct of discussions with only one offeror constituted unequal and therefor improper discussions.
You can read the entire bid protest decision here.

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