GAO denied a protest challenging the agency’s evaluation of proposals because the evaluation was reasonable and consistent with the terms of the solicitation.[1] The protest ground regarding inadequate discussions was also denied because the record showed that the agency conveyed its concerns to the protester during discussions, and the protester failed to address those concerns. 

The Department of the Army issued an RFP for the manufacture of maneuver support vessels which contemplated award of a fixed-price IDIQ on a best-value tradeoff basis. The RFP advised offerors that the agency would evaluate proposals based on the following factors in decreasing importance: (1) technical performance, (2) maturity, (3) production readiness, (4) total evaluated cost/price, and (5) small business participation. The agency received a number of proposals, conducted discussions, received final proposal revisions, and determined that award should go to Vigor Works LLC. VT Halter Marine protested.

The protester asserted that the agency unreasonably gave a $39 million price credit to the awardee because the awardee proposed to provide unlimited data rights in the software furnished to the government. The protester argued that it was unreasonable to assume that the awardee intended to provide unlimited data rights based only on the awardee’s pricing worksheet because no company would offer its products with unlimited data rights. Instead, the agency does not really know what data rights it will be receiving from the awardee and was unreasonable in failing to appreciate this risk. GAO found no merit in this argument. When an offeror does not put data rights restrictions on its proposal, it is reasonable for the agency to understand that the offeror is offering unlimited rights. The RFP advised offerors that the agency would consider a price credit for the potential value of data rights offered. 

GAO declined to consider the protester’s challenges to the agency’s assessment of individual weaknesses in its proposal due to lack of prejudice. The protester also argued that agency discussions with offerors were unequal. Specifically, while the agency pointed out its primary concern with the protester’s model, it pointed out a different concern with the awardee’s model that also applied to the protester. 

GAO found that it was reasonable for the agency to focus on its primary concern for the risk associated with the proximity of the water jet inlet to the sea floor. There is no reasonable basis to determine that being advised that the distance between the water jet inlets and the sea floor was less than the water jet impeller diameter would have caused protester to change its proposal, especially considering that they did not change it after being repeatedly told about a separate weakness. Agencies are not required to “spoon feed” offerors every weakness that may be improved in their proposal, and protester failed to adequately address those weaknesses that the agency did raise. GAO denied the protest.

Takeaway: Offerors should be aware that by not asserting data rights in a proposal, you may be proposing unlimited data rights. Additionally, an offeror that does not adequately respond to the information it receives in discussions will have difficulty challenging information it did not receive due to lack of prejudice.