Government Contracts Monitor

Unless the Agency Limits Discussions, Don’t Be Afraid to Revise Your Price (Or Anything Else)

April 7, 2014

By: Eric Whytsell

A recent decision by the Government Accountability Office (GAO) serves as a reminder that, absent limitations established by the agency, discussions and a call for final proposal revisions allow offerors to revise any aspect of their proposals.

Medical Receivables Solutions, B-409358 (Comp. Gen. March 19, 2014) involved the Army’s award of an IDIQ contract with fixed-price task orders for medical record coding services. The solicitation provided the award would be made on a lowest-priced, technically-acceptable basis. After its initial review of the offers, the Army established a competitive range and sent identical letters to those offerors requesting “explanations, discussions and/or clarifications of the items addressed in enclosures 1 and 2.” Because the initial letters omitted specific questions for the offerors, the Army provided the specific items for discussion in a subsequent e-mail. It also confirmed the due date for final proposal revisions.

Based on its evaluation of final proposals, the Army found that Medical Receivables Solutions (MRS) had submitted the lowest-priced technically-acceptable offer, with a proposed price of $34,088,862. That might have been the end of the story, except that another offeror, Infused Solutions, e-mailed the Army the following day and pointed out that its proposed price in the Notice of Award was incorrect. When the Army rechecked, it determined that Infused Solutions was right: the Army’s evaluation and award had not been based the price included in Infused Solution’s revised proposal, which was $33,480,139. Since Infused Solutions’ revised price was lower than that of MRS and its proposal was technically-acceptable, the Army revised its selection decision and awarded the contract to Infused Solutions.

MRS protested, arguing in part that the Army’s discussion letter limited the offerors’ final proposal revisions to the specific items identified for discussion for each offeror – and that the Army could not properly accept a revised price from Infused Solutions because such a revision went beyond the scope of discussions.

The GAO denied the protest. After noting the general rule that discussions usually allow offerors to “revise any aspect of their proposal, including portions of their proposals that were not the subject of discussions,” the GAO acknowledged that, in appropriate circumstances, “agencies may limit the revisions that offerors may make to their proposals following discussions.” However, it went on to find that the Army did not limit discussions in any way. In reaching that decision, the GAO pointed out that the Army’s discussion letter did not contain any specific language limiting offerors to the specific discussion topics. In addition, it noted that, rather than impose such limitations, the letter specifically directed offerors to identify the portions of their proposals that had been revised. Finally, unlike the agency in cases relied on by MRS, the Army here made clear that it did not intend to limit revisions to its discussion issues. On this record, GAO found no basis to object to the award decision.

The takeaway? Unless the agency has somehow limited the scope of revisions – in its letter or otherwise – feel free to make whatever revisions in your final proposal revision you believe are appropriate to maximize your chances of winning award under the applicable evaluation criteria.

J. Eric Whytsell is the attorney responsible for the content of this article.

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