Document, Document, Document!

Nexant, Inc. (“Nexant”) protested to the GAO the award of a US Agency for International Development (“USAID”) contract to Deloitte Consulting, LLP, on the grounds that USAID (1) failed to conduct meaningful discussions, (2) applied an unreasonable evaluation of the strengths and weaknesses of the proposals, and (3) failed to document the basis for its source selection decision. The GAO sustained the protest on all three grounds.

 

Agencies are not required to conduct discussions with offerors, but if they do, the discussions must be meaningful. Meaningful means that the agency must identify deficiencies and weaknesses in a manner that enables offerors an opportunity to address them. Here, the GAO found that USAID failed adequately to convey its concerns with Nexant’s proposal. For example, in its initial evaluation, USAID concluded that Nexant misunderstood one of the tasks. Instead of so advising Nexant, USAID merely asked Nexant to clarify its understanding. As a result, Nexant lacked the knowledge to respond to USAID’s concerns. Because of this lack of meaningful discussion, the GAO sustained the protest.

 

The GAO also sustained the protest because USAID applied a numerical scoring system that failed to evaluate the offerors’ strengths and weaknesses accurately. USAID relied on these scores to determine the award. As an initial matter, USAID did not explain how the evaluators assigned their numeric scores. Moreover, USAID applied the numeric scoring inconsistently among the offerors. For example, Nexant’s score was lowered based on weaknesses that the evaluators had resolved during discussions, whereas Deloitte received a higher score despite displaying similar weaknesses. Thus, the GAO held that the scores used by USAID were unreliable and failed to reflect the comparative merits of the proposals.

 

Finally, the GAO sustained the protest because USAID failed to document its rationale for selecting the higher-cost proposal. “[W]here an agency makes an award to a higher-rated, higher-cost proposal in a best value acquisition, the award decision must be supported by a rational and adequately-documented explanation for why the higher-rated proposal is, in fact, superior, and why its technical superiority warrants paying a higher premium.” Matter of Nexant, B-407708; B-407708.2 at *9, Jan. 30, 2013. Here, the contracting officer indicated that she relied on the numeric scores, but failed to explain which features of the Deloitte proposal were worth paying more for. Protest of Nexant, B-407708; B-407708.2, Jan. 30, 2013.

 

PRACTICE TIP: The mere fact that a proposal ranks higher and includes more strengths than other proposals does not necessarily make it the best value.   If an agency fails to document its rationale for why the higher-rated proposal justifies a higher cost, that can render the procurement vulnerable to challenge.  

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