Agencies that Conduct Discussions Must Raise ALL Concerns

Mission Essential Personnel (“MEP”) was one of three companies that held a multiple-award task order contract to provide intelligence support services for the Department of the Army in Afghanistan. The Army issued two task order solicitations. After receiving proposals, the Army engaged in a round of discussions, then solicited and received revised proposals from the three contract holders. The agency awarded the task orders to L-3 STRATIS and this protest by MEP ensued.

 

To evaluate the proposals, the Army identified three factors: (1) turnover in the firm’s program manager position, (2) delays in submitting invoices, and (3) the adequacy of the firm’s “fill rate” in providing personnel. It then assigned each contract holder a “Go” or “No Go” rating indicating whether or not it fell within the competitive range. In its protest, MEP argued that the Army unreasonably assessed MEP’s performance under the first two factors, that the Army failed to discuss the contract holders’ performance under these factors before awarding the task order, and that the Army erred when it reviewed MEP’s performance in a three-month window, when the solicitation required the Army to consider the entire contract period.

 

The Army responded that it determined MEP was not in the competitive range and received a “No Go” rating solely based on MEP’s low fill rates, and not the other two factors, and that because the first two factors did not form the basis of the Army’s decision, it was not required to discuss these factors with the contract holders. The Army also contended that under the terms of the solicitation, it was not required to consider performance over the entire contract performance period.

 

The GAO concluded from the evidence that, despite the Army’s assertion to the contrary, it had based its decision on all three factors. Second, although the Army was not required to conduct discussions, to the extent that it “identified program manager turnover and delays in invoicing as weaknesses or deficiencies in MEP’s performance on previous task orders, it was required to raise those concerns” during the discussions that it did choose to conduct. The GAO held that the discussions the Army conducted were not fair, because it had identified two weaknesses, but failed to bring them to MEP’s attention. Last, the GAO agreed with MEP that the language, “since the base contract award” in the task order evaluation scheme required the Army to examine MEP’s performance over the entire life of the contract, rather than over some smaller interval of contract performance selected by the Army. The GAO sustained the protest. Mission Essential Personnel, LLC, B-407474; B-407493, January 7, 2013.

 

PRACTICE TIP: Government agencies’ discussions (or lack of discussions) give rise to a fair number of successful protests. Make yourself familiar with the rules surrounding discussions so you can identify potential protest situations.

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