Government Contracts Monitor

Don’t Assume Information Contrary to the RFP, Even Where Substantiating Documentation Exists

February 6, 2014

In reviewing Government solicitations, offerors, particularly incumbents, frequently find what they believe to be incorrect information. In such instances, there may be an urge to disregard the perceived “incorrect” information, and instead use the believed “correct” information, in formulating the offeror’s proposal. This urge may arise out of a desire to demonstrate the offeror’s expertise or diligence, to get a competitive edge, or for some other reason. However, as was demonstrated recently in Geo Marine, Inc./Burns & McDonnell Engineering, Inc., Joint Venture (“Geo Marine”), B-407337.3 (Comp. Gen. Jan. 22, 2014), such an urge can be extremely dangerous and counter-productive, and may result in rejection of the offeror’s proposal, even where the offeror can point to presumably reliable contrary Government data.

The procurement in Geo Marine involved a two-phase acquisition for the award of several indefinite quantity, indefinite delivery (ID/IQ) contracts to perform design/build services for the U.S. Army Corps of Engineers (the Corps) at specified locations worldwide. The estimated total program value was $600 million. The first phase involved the submission and evaluation of qualifications, while the second phase involved the submission of phase two proposals by the vendors determined in phase one to be qualified. The Geo Maine/Burns McDonnell Engineering JV (GMI) was selected to submit a phase two proposal.

The phase two proposals were required, among other things, to respond to a sample task involving the installation of wind turbine generators (WTGs) on Kwajalein Atoll, in the Republic of the Marshall Islands (along with associated support systems), and connection of the turbines to the island’s electrical grid system.

Proposals were rated on various non-price evaluation factors. GMI’s proposal was assigned a “marginal” rating for technical approach (factor one) and specialized experience (factor two), based on a number of identified weaknesses. One of these weaknesses was that GMI had not positioned the WTGs in the geographical area designated in the solicitation’s Performance Work Statement (PWS). Moreover, GMI had not provided any explanation for having deviated from the solicitation requirements.

After the initial evaluation, the Corps provided discussion questions to GMI. One of the questions to GMI raised the foregoing issues. In response, GMI explained that it had based its positioning decision on data from the National Renewable Energy Laboratory (NREL) as to the prevailing wind direction that was different from the prevailing wind direction set forth in the RFP. GMI did not change its proposed location of the WTGs.

After evaluating the revised GMI proposal, the Corps changed the original “weakness” relating to GMI’s placement of the WTGs to a “significant weakness,” finding that GMI’s explanation – along with GMI’s continuing reliance on the NREL data – was “incorrect” and “inconsistent” with information in the solicitation concerning prevailing wind direction. Based on this finding, the Corps eliminated GMI from further consideration after again assigning GMI a “marginal” rating for technical approach.

GMI protested the rejection of its proposal at the U.S. Government Accountability Office (GAO). GMI argued that the Corps failed to engage in adequate discussions before rejecting GMI’s proposal, and specifically that the Corps should have reopened discussions with GMI as to the proper placement of the WTGs, particularly in view of the Corps’ elevating its level of concern from a “weakness” to a “significant weakness.”

The GAO found no merit to GMI’s arguments, and denied the protest. The GAO noted that “[d]iscussions, when conducted, must identify proposal deficiencies and significant weaknesses that reasonably could be addressed in order to materially enhance the offeror’s potential for receiving award.” Here, the GAO found that the discussions relating to the initial proposal were meaningful and clearly identified the weaknesses associated with the placement of the WTGs. However, rather than change its proposal and allay the Corps’ stated concerns, GMI merely provided its rationale for its differing placement, leading the Corps to be further concerned with GMI’s technical solution. The GAO specifically stated that “It became evident to the agency that GMI’s placement of the WTGs was based on incorrect data that was inconsistent with the information included in the RFP concerning prevailing wind direction. The GAO held that the Corps “was under no obligation to further discuss these new concerns with GMI, since they were introduced for the first time into GMI’s revised proposal.”

This case demonstrates, first, that an offeror should not substitute its own, different, understanding of facts set forth in a solicitation, even where the offeror has “evidence” supporting its understanding, without first raising such different understanding with, and obtaining guidance with respect thereto from, the agency. Second, once an agency raises a concern in discussions, the offeror needs to directly address and allay such concern, in a manner consistent with the stated solicitation terms. Third, merely providing an explanation for the offeror’s provided different technical approach may not suffice, since the agency is under no obligation to accept or agree with the provided explanation and underlying “facts”, even where, as here, the provided “facts” consisted of ostensibly reliable Government lab data. And fourth, offerors assume the risks incident to final proposal revisions, and there is no obligation on the agency to open new discussions as to either any initial issues raised or any new agency concerns that may arise from the revised proposal.

Hopewell Darneille is the attorney responsible for the content of this article.