Preparing a proposal in response to a government solicitation can be a daunting project. It’s not always possible to discern from the solicitation language exactly what the procuring agency wants, and so a certain amount of guessing and hoping is usually involved. However, this process is made doubly more frustrating when it seems that the agency is holding out on you. It is probably unwise for an agency to withhold important information about their procurement, if only for the sake of competition. Even so, there are certain situations where an agency holding back crucial information is a violation of the FAR, and may lead to a successful protest.
This principle was on display in a recent U.S. Government Accountability Office (GAO) bid protest decision, Crowley Logistics, Inc. GAO’s decision in Crowley hinged on the discussions between the procuring agency and the offerors, and whether those discussions were proper. In a negotiated procurement, agencies have the ability to make an award based solely on the proposals initially submitted by offerors. However, the procuring agency also has the option to use the initial proposals to establish a competitive range that includes the offers most likely to receive an award. Once the competitive range is established, the agency then holds discussions with the offerors in the competitive range, allowing those offerors to submit revised proposals in response to the discussions with the agency. If a procuring agency chooses the latter option, the discussions that it holds must be meaningful and equitable across all offerors in the competitive range.
The procurement at issue in Crowley was an award by the Department of Defense, United States Transportation Command, for freight transportation services. During the procurement, the agency established a competitive range of three offerors and conducted multiple rounds of discussions with the offerors, eventually allowing each offeror in the competitive range to submit a revised final proposal. The agency conducted a best value tradeoff, making an award to a competitor of Crowley Logistics.
Following a debriefing, Crowley Logistics filed a protest with GAO arguing that the discussions held by the agency were not meaningful, which rendered its award decision improper. Crowley argued that the agency’s source selection decision discussed a significant concern with Crowley’s proposal, yet despite many rounds of discussions, the agency never once raised the concern with Crowley during the discussion period. GAO agreed with Crowley, and sustained the protest.
In its decision, GAO pointed out the fundamental principle that when an agency holds discussions in a negotiated procurement, the agency must identify for each offeror the deficiencies and significant weaknesses that could reasonably be addressed so as to materially improve the offeror’s chance of receiving an award. Agencies are not required to identify each and every minor issue with a proposal, but must clue an offeror into issues with its proposal that may prevent it from receiving the award. In this case, GAO found that the agency’s source selection decision documented a significant concern with Crowley’s proposal. Even though the concern was not labeled by the agency as a “deficiency” or “significant weakness,” GAO found that the agency’s award decision (i.e., its decision not to award to Crowley) was based in large part on that significant concern. As a result, GAO found that for its discussions with Crowley to have been meaningful, the agency had an obligation to notify Crowley of the concern and give it an opportunity to address the matter in its revised proposal.
This case demonstrates the importance for a disappointed offeror to seek out and scrutinize the reasons its proposal was unsuccessful. Sometimes companies misfire and submit offers that don’t line up with the procuring agency’s expectations. However, sometimes it is the agency that misfires in its source selection decision. In cases such as this, where it is clear that the agency held back key information from an offeror, particularly information regarding perceived deficiencies or significant weaknesses in the offeror’s proposal, the matter may be ripe for a successful protest.