The Government Accountability Office (GAO) recently sustained a protest in Life Science Logistics, LLC, B-421018.2, .3 (April 19, 2023), finding that an agency’s discussions were not meaningful where they did not disclose flaws that were present in the protestor’s initial proposal, but which were not identified by the agency until it re-evaluated the proposal during corrective action. Below, PilieroMazza reviews this case and highlights key actions an agency is required to take to give government contractors similar opportunities to revise their proposals.
The Facts
Life Science Logistics, LLC (LSL) was an offeror for a General Services Administration (GSA) solicitation seeking a contractor to provide storage, management of medical products, monitoring, logistics, reporting, and emergency staging for delivery of government-provided medical supplies for a national emergency. During its initial evaluation, GSA engaged in discussions with each offeror. Its discussions with LSL were limited to concerns regarding potential contamination of LSL’s proposed site, schedule slippage related to possible excavation, and the rates for two labor categories. After reviewing the proposals and responses to discussion questions, GSA awarded the contract to Integrated Quality Solutions LLC (IQS) as the technically superior, but higher-priced, offeror.
LSL filed a protest challenging GSA’s evaluation, including how it conducted discussions. In response, the agency took corrective action by amending the solicitation, requesting revised proposals, and conducting a new evaluation. Notably, LSL submitted a new proposal, but did not materially revise its original proposal.
During re-evaluation, GSA did not engage in discussions and, once again, awarded the contract to IQS. This time, however, GSA deemed LSL technically unacceptable because certain drawings in LSL’s proposal gave rise to four significant weaknesses—none of which were assigned during GSA’s initial evaluation:
- LSL’s security drawings lacked required specifications and details;
- LSL’s proposal did not provide primary and secondary access and egress points in and out of the facility;
- the proposal did not provide multiple routes to the highway system; and
- the protester’s proposal did not provide sufficient accessibility to the visitor and employee parking lots.
LSL filed another protest, asserting that because it submitted a materially unchanged proposal during corrective action—and GSA failed to raise, in discussions during the initial evaluation, the significant weaknesses that resulted in LSL being deemed technically unacceptable—GSA did not engage in meaningful discussions. GAO agreed.
GAO’s Ruling
GAO explained that when an agency elects to engage in discussions, those discussions must be meaningful, which means they must lead an offeror to those areas of its proposal that require modification, amplification, or explanation. Also, the agency must, at a minimum, discuss all deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not had the opportunity to respond. In this case, GAO explained that the subject drawings in LSL’s initial proposal were not materially different from the drawings in LSL’s revised proposal. And, the significant weaknesses associated with those drawings that GSA first identified when evaluating LSL’s revised proposal were apparent in LSL’s initial proposal. Critically, however, GSA did not advise LSL of the significant weaknesses until it selected IQS for award. This was unreasonable.
GAO concluded that because the evaluated concerns were reasonably apparent to GSA when it evaluated LSL’s initial proposal, those significant weaknesses should have been disclosed during GSA’s discussions. Because GSA did not identify those concerns until corrective action, it was required to reopen discussions and disclose its concerns, thereby giving all offerors similar opportunities to revise their proposals. By failing to do so, the agency failed to engage in meaningful discussions. Consequently, GAO sustained the protest and recommended that GSA reopen the procurement and conduct appropriate and meaningful discussions with LSL and IQS, request and evaluate revised proposals, and make a new source selection decision.
Key Takeaways
- When an agency elects to engage in discussions, those discussions must be meaningful.
- Meaningful discussions (a) address any portions of a proposal that require modification, amplification, or explanation and (b) identify deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not had the opportunity to respond.
- Where an agency, after discussions are completed, identifies a concern pertaining to a proposal as it was prior to discussions—and that concern would have had to be raised if it had been identified before discussions were concluded—the agency must reopen discussions and raise its concern with the relevant offeror.
If you have questions about this case or wish to discuss a potential protest of an agency award decision, please contact Sam Finnerty or Ustina Ibrahim, the authors of this blog, or another member of PilieroMazza’s Government Contracts or Bid Protests practice groups.
