Government Contracts Monitor
If the Agency Throws You a Lifeline, Grab It!
December 7, 2017
Most contractors are familiar with the Far Part 15 discussions process during which the procuring agency identifies significant weaknesses and deficiencies in the proposals of the offerors in the competitive range. The procedure is intended to help those offerors improve their proposals so that the Government has the best possible options to choose from. In order to take advantage of the opportunity afforded by discussions, however, offerors need to listen—and respond--to what the agency says about what needs to be improved. The downside of failing to do so is amply illustrated in the recent Government Accountability Office (GAO) decision in Geotech Environmental Services, Inc., B-415035 (November 22, 2017).
The protest involved the award of a contract to Wadsworth Builders Company, Inc. (Wadsworth) for water wells on an Air Force base. The request for proposals (RFP) provided for award on a lowest price, technically acceptable basis, considering technical, past performance and price evaluation factors. Of relevance here, the solicitation made clear that to be evaluated as acceptable under the well stratigraphy technical subfactor, offerors were to provide evidence of prior performance of at least two domestic water well projects where a licensed geologist logged the well stratigraphy during the well drilling operation. It also stated that an unacceptable rating on any technical subfactor would render the proposal technically unacceptable overall and, therefore, ineligible for award.
After receiving proposals from six offerors, , the Air Force decided to establish a competitive range and conduct discussions because of the wide price disparity among the proposed prices. The competitive range consisted of the three offerors with the lowest-priced proposals, including Wadsworth (second-lowest priced) and the protester, Geotech Environmental Services, Inc. (Geotech) (lowest-priced).
During discussions, the agency issued three evaluation notices (ENs) to Geotech, one of which made clear that Geotech’s proposal had been found unacceptable under the well stratigraphy subfactor because the proposal did not note whether a licensed geologist performed the logs for one of the two projects Geotech identified in connection with that subfactor (the “Last Chance Basin” project). According to the GAO, the EN requested that Geotech clearly state whether or not a licensed geologist logged the stratigraphy for that project. In response, Geotech referred the Air Force evaluators to its previously submitted Technical Approach, water well logs, and geophysical logs and stated that “[s]tratigraphic logs will be prepared according to ASTM D2488 by a licensed geologist experienced in drilling.” In other words, Geotech essentially responded to the agency’s clear request for confirmation that a licensed geologist had been involved in its past drilling project by doubling down on the same information that resulted in the discussion question and then focused on the involvement of a licensed geologist in its (future) drilling under the contemplated contract.
Faced with this response, the source selection evaluation board found that Geotech’s proposal remained technically unacceptable, noting that “Geotech was given every opportunity to provide proof of technical acceptability and failed to do so.” The Air Force awarded the contract to Wadsworth, which it found had the lowest-priced, technically acceptable proposal.
Geotech protested, arguing that it had met all the RFP requirements. The agency responded that it had reasonably evaluated Geotech’s proposal and that it had simply failed to answer the question in the EN concerning well stratigraphy.
The GAO had little trouble agreeing with the Air Force. First, Geotech conceded in its protest briefing that “[w]hile Geotech’s response to the EN may not have expressly confirmed that a licensed geologist logged the stratigraphy for the project completed at Last Chance Basin, in identifying the previous contracts, it was presumed that a licensed geologist logged the well stratigraphy during the well drilling.” As the GAO noted, however, “An offeror is responsible for affirmatively demonstrating the merits of its proposal and, as here, risks the rejection of its proposal if it fails to do so.” Reliance on a presumption is simply not sufficient. On this point, the GAO stated, “Agencies are not required to infer information from an inadequately detailed proposal, or to supply information that the protester elected not to provide.” Finally, the GAO flatly rejected Geotech’s argument that the agency should have sought further clarification if its response was not sufficiently clear.
At the risk of oversimplifying things, this outcome appears to have resulted from the failure of an offeror to listen and actually respond to the concern raised by the agency in discussions. Contractors should learn from Geotech’s experience in this procurement: take advantage of what the agency tells you in discussion to improve your proposal—in ways that meaningfully address the concerns voiced by the agency. If you don’t, your chances at success may be sunk.
© 2017 Jackson Kelly PLLC