Government Contracts Monitor
Don’t be Afraid to Demand Fairness in Discussions – Even in Task Order Competitions
February 12, 2013
By: Eric Whytsell
A recent protest decision underscores the importance of fair discussions in task order procurements and the difficulties agencies can face when they change their story mid-stream. Mission Essential Personnel, LLC, B-407474; B-407493 (January 7, 2013) involved a pair of task order awards for intelligence support services in Afghanistan under a multiple award IDIQ contract. Asserting that the Army failed to engage in adequate discussions and misevaluated its proposals, protester Mission Essential Personnel, LLC (MEP) prevailed-- with some help from the Government.
The task order solicitations at issue provided for award on a low-price, technically-acceptable basis, considering price and current contract performance. In particular, contract performance was to be assessed as “Go” (technically acceptable) or “No Go” (technically unacceptable). In both acquisitions, the Army evaluated proposals, held discussions, and solicited and obtained revised proposal before making its source selection decision. And in both acquisitions, the same competitor of protester was the only offeror receiving a “Go” rating and, therefore, the offeror who won the award.
The record showed that the Army had identified three concerns in assigning MEP its “No Go” ratings: (i) turnover in MEP’s program manager position; (ii) delays in submitting invoices; and (iii) the adequacy of MEP’s “fill rate”. MEP asserted that the Army had unreasonably assigned weaknesses based on its program manager turnover and invoicing, arguing that any problems in those regards were the result of Government actions. It also pointed out that, to the extent the Army had concerns in those areas, it should have raised them during discussions but never did. The Army responded to MEP’s arguments challenging the first two concerns by asserting that the sole reason that really accounted for MEP’s “No Go” rating was its low fill rates. According to the Army, because the first two concerns did not really lead to the “No Go” rating, even if MEP were correct about those concerns not being well-founded, there was no prejudice to MEP. For the same reason, the Army argued that it was not required to address them during discussions.
Unfortunately for the Army, the record clearly showed that it had identified all three concerns during its evaluation – and they together appear to have formed the underlying basis for MEP’s “No Go” ratings. This disconnect between the record and the Army’s stated position during the protest led the GAO to invoke a long-standing rule: “Where, as here, an agency proffers an explanation of its evaluation during the heat of litigation that is not borne out by the contemporaneous record, we give little weight to the later explanation.”
In this case, that meant the GAO proceeded based on what the record showed: the Army’s rating was based on all three areas of concern. It also meant that the Army’s failure to raise the two concerns during discussions doomed the awards. As GAO noted, even though FAR Part 15 regulations governing discussions do not generally apply to task and delivery order competitions under Part 16, such competitions must still be conducted in accordance with the solicitation and applicable regulations. And while FAR 16.505 does not establish specific requirements for discussions in task order competitions, exchanges in that context must still be fair and not misleading. Here, the failure to mention two of the three concerns that led to the “No Go” rating rendered the discussions unfair and misleading – and resulted in the protest being upheld.
The bottom line? Contractors should not be shy about demanding fairness in discussions conducted during task order competitions – and hope that the Government will “run away from the record” during any resulting protest.
Eric Whytsell is the attorney responsible for the content of this article.