Discussions Were Improper When "Discussion" Questions to One Offeror Seemed "Contrived"
In its May 2, 2009 decision, GAO sustained the latest in a series of protests by American K-9 Detection Services, Inc. (AK-9) on the grounds that the Army improperly limited discussions and in doing so, failed to give AK-9 the opportunity to submit an improved final proposal revision addressing the significant weaknesses or deficiencies in its proposal that were noted in the Army’s award decision. The protest was the sixth of AK-9’s protests against the award of a fixed-price indefinite-delivery, indefinite-quantity contract for contractor working dog services in Afghanistan. Award of the one-year contract with four option years was made to EOD Technology, Inc. (EODT) at a price of $38,350,935.
The Army issued the solicitation on June 13, 2008 and subsequently awarded the resulting contract to EODT. In its first protest and supplemental protest (B-400464 and B-400464.2), AK-9 attacked the Army’s past performance evaluation. The Army took corrective action, in response to these protests, permitting the offerors to resubmit relevant past performance information, and GAO dismissed the protests as moot. The Army’s reevaluation confirmed its initial award to EODT and AK-9 again protested, primarily on the grounds that the required kennel master/project manager (KM/PM) offered by EODT did not meet the solicitation’s minimum requirements and that the Army considered more than five of EODT’s previous contracts in evaluating past performance (the solicitation limited past performance submissions to five similar contracts). (B-400464.3 and B-400464.4).
In response, the Army again took corrective action, volunteering to reconsider the offerors’ proposals. The Army reduced the competitive range to AK-9 and EODT, and then requested that each offeror provide limited information relating to their proposed KM/PMs. In EODT’s case, the discussions permitted EODT to submit, for the first time, a compliant proposal. In AK-9’s case, however, there had been no concern regarding its proposed KM/PM, and the Army expressed concerns – later determined to be unfounded – that AK-9’s KM/PM would not be able to perform the contract and that he did not meet the minimum solicitation requirements. AK-9 responded that the KM/PM would perform, that Army personnel had personal knowledge that the KM/PM was compliant and that the Army’s question did not constitute discussions. AK-9 filed another protest (B-400464.5) which was dismissed as premature because award had not yet been made.
As a result of the Army’s actions, EODT was permitted to effectively submit a revised proposal, whereas AK-9 was not afforded the opportunity to address any of the significant weaknesses or deficiencies that resulted in another award to EODT.
Discussions between federal agencies and offerors have long provided fertile ground for protesting awards. GAO has consistently held discussions must be “meaningful, equitable, and not misleading.” American K-9 Detection Services, Inc. (citing The Boeing Co., B-311344, et al., June 18, 2008, 2008 CPD ¶ 114 at 49). This GAO precedent is not a particular stretch; the FAR specifically provides that discussions must identify for each offeror in the competitive range the deficiencies, significant weaknesses and adverse past performance information so that the offeror has the opportunity to respond. FAR 15.306(d)(3).
GAO long has held that agencies may not conduct unequal discussions – for example, discussions that are meaningful to some offerors, but are not to other offerors. In some cases, agencies may reasonably limit discussions to a particular aspect of offerors’ proposals (here, the KM/PM). Nonetheless, GAO also has held that offerors may submit revised proposals in response to discussions that revise aspects of a proposal that were not the subject of discussions. Here, the Army engaged in discussions with the original awardee, EODT, in a manner that permitted EODT to provide a compliant proposal, even though it did not identify the significant weaknesses or deficiencies that purportedly prevented AK-9 from receiving the award. AK-9 noted several areas of its proposal that it would have improved had proper discussions been held and had it had the opportunity to submit a revised proposal, and GAO therefore held that discussions were improperly limited.
GAO’s decision was particularly critical of the Army; not only did GAO sustain the protest, stating that the Army’s sole discussion question for AK-9 “seem[ed] contrived,” but GAO also independently listed three aspects of the record that concerned it and that it suggested should concern the Army when it performs this third round of recommended corrective action. GAO, which generally crafts its decisions narrowly in response to specific protested issues and often does not address protested issues when not necessary to reach a decision (see, e.g., Engineering Management & Integration, Inc., B-400356.4, B-400356.5, May 21, 2009, 2009 CPD ¶, at footnote 4), identified these potential problems, perhaps as a road map to assist the Army to avoid yet another protest in this procurement.
First, the solicitation listed “technical capability” as an evaluation factor, but it did not list any technical subfactors. The Army assessed the offerors’ technical capability by considering 10 separate “categories.” GAO expressed the concern that the use of unstated subfactors may violate CICA’s requirement that solicitations include “a statement of all significant factors and subfactors that will be considered in the evaluation, as well as their relative importance.” 10 U.S.C. 2305(a)(2)(A); FAR 15.304(d).
Second, AK-9 argued in its protest that the Army considered more than five of EODT’s previous contracts in evaluating past performance, despite the solicitation’s limitation of past performance submissions of two to five contracts performed in the previous five years. GAO agreed that the Army may want to consider the scope of appropriate past performance evaluation in correcting the procurement.
Finally, GAO recognized that the Army, in failing to consider possibly poor past performance of EODT, stated that the performance in question was halted by a stop work order and that no negative evaluation was warranted. However, in defending the earlier noncompetitive award to AK-9 for services during the procurement process, the Army apparently had noted past performance problems with EODT (the relevant past performance information is redacted from GAO’s public decision). GAO advised that the Army should reconcile its divergent opinions on EODT’s past performance in performing its new source selection.
