Government Contracts Discussions with Only One Offeror Were Appropriate
Thursday, July 25, 2019

Discussions with Only One Offeror Were Appropriate

By Government Contracts Editorial Staff

Corrective action reopening discussions with only one offeror was reasonable because the circumstances of the protest were unique and the protester failed to demonstrate that it suffered competitive prejudice. The protest arose from six contract awards for environmental remediation services. In the best value tradeoff, the source selection authority compared the proposal of the lowest-overall priced offeror against the protester’s technically lower-rated and higher-priced proposal, recounted each offeror’s unique strengths and weaknesses, and found the other offeror provided better value to the government. The other offeror did not receive an award, and it filed a separate protest challenging a weakness arising from its alleged failure to show that its key personnel had certain relevant experience under the technical capabilities/key personnel evaluation factor. In response to that protest, the government announced it would take corrective action and conduct limited discussions and provide the other offeror an opportunity to address the weakness.

No Prejudice. After rejecting the protester’s challenge to the best value comparison, the Comptroller General turned to the protester’s argument that the government improperly reopened discussions with only the other offeror. Although reopening discussions with one offeror generally triggers an obligation to reopen discussions with all offerors in the competitive range, the circumstances here were unique. If the discussions consisted only of the offeror’s one previously unidentified weakness, and the offeror’s response was limited to addressing that weakness, the offeror would not be afforded any unfair competitive advantage over other competitive range offerors. The offeror would only be placed in the same competitive position that the other offerors, including the protester, were in following their receipt of meaningful discussions. Further, even if the corrective action was unreasonable, there was no basis for concluding the protester would suffer any competitive prejudice, because the protester had received the highest possible adjectival rating under the TC/KP evaluation factor. Moreover, the SSA’s reasonable conclusion regarding the other offeror’s superiority was made without the benefit of meaningful discussions and notwithstanding the protester’s advantage under the TC/KP factor, and the protester did not explain how proposal revisions under this factor would materially alter or enhance its proposal or improve its competitive position. (Environmental Chemical Corp., 34 CGEN ¶116,441)

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