Agency’s Alleged Clarifications Were Really Discussions But It Didn’t Matter Because Protester Was Not in Competitive Range; Trademasters Service, Inc., GAO B-418522.2 et al.

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Protest challenging the agency’s price evaluation and conduct of exchanges is dismissed in part and denied in part. The protester alleged the awardee could not perform at its proposed price. GAO noted that while this was styled as a challenge to the technical evaluation, it was really an argument that the agency should have evaluated price realism. The solicitation, however, did not require an evaluation of realism, so GAO dismissed the argument. The protester further alleged the agency conducted unequal discussions. The agency alleged it only sought clarifications. GAO found that the exchanges with offerors were actually discussions, not clarifications. Nevertheless, the agency found that the discussions were not unequal, because the protester had been effectively eliminated from the competitive range.

The General Services Administration issued an RFQ to vendors holding the Federal Supply Schedule for Facilities Management and Maintenance. The RFQ contemplated award of a blanket purchase agreement for facilities, engineering, maintenance, and related services at five federal buildings in Washington, DC.

GSA received fifteen quotations but rejected eleven of them as unacceptable. GSA then conducted a tradeoff with the four remaining proposals, which included proposals from Trandemasters Service, Inc. and EMCOR Government Services. GSA eliminated Trademasters and another offeror from further consideration due to their high prices. GSA found that the remaining two quotations, however, still contained shortcomings. GSA conducted exchanges with the two remaining offeror and ultimately selected EMCOR for award. Trademasters protested.

Trademasters argued that EMCOR’s price was lower than the government estimate and that it was not possible for the company to comply with the solicitation’s requirements at such a low price. Trademasters argued that EMCOR’s low price suggested that GSA had relaxed solicitation requirements when it evaluated EMCOR.

GAO noted that while Trademasters styled this argument as a challenge to the technical evaluation, it was essentially an argument that GSA failed to conduct a price realism analysis. Absent a solicitation provision requiring a price realism analysis, an agency is neither required nor permitted to evaluate realism. Here, the RFQ did not require a price realism analysis. GAO dismissed Trademasters argument for failure to state a valid basis of protest.

Trademasters asserted that GSA had failed to consider vendors’ level of effort and labor mix as part of the price analysis as required by the FAR. The record, however, showed that GSA had reviewed vendors’ proposed labor mix. In any event, Trademasters’ argument that GSA should have found EMCOR’s low price concerning in light of the its proposed level of effort was simply a tacit argument that the agency should have evaluated price realism.

Next, Trademasters asserted that the agency improperly conducted discussions with only EMCOR and another offeror. GSA contended that it did not conduct discussions, but rather simply sought clarifications from these offerors.

GSA opined that an agency’s characterization of its exchanges as clarifications is not controlling; rather, it is the actions of the parties that determines whether discussions have been held.  Here, the record did not support the agency’s characterization of the exchanges. While the ratings assigned to vendors did not change after the exchanges, additional technical evaluations occurred where the agency reviewed the vendors’ responses to the exchanges. Moreover, the record showed that the agency allowed vendors to submit revisions that resolved unfavorable aspects of their initial quotations. Thus, the exchanges were in fact discussions.

Having determined that the exchanges were discussions, GAO considered whether GSA had erred in not conducting exchanges with Trademasters. GAO reasoned that in an FSS procurement, like this one, conducted under FAR Part 8.4, an agency’s decision to exclude a vendor from further consideration for award is comparable to an exclusion of the proposal from the competitive range under FAR Part 15. In this case, before conducting exchanges, GSA had excluded Trademasters due to its high price. Trademasters was thus no longer within the competitive range. GSA was not obligated to conduct exchanges with Trademasters.

Trademasters argued that the competitive range determination was unreasonable because both of the vendors within the range had been allowed to revise their price. Trademasters contended that if it had been given the same opportunity, it could have also revised its price. But GAO reasoned that given the vast disparity between Trademasters’ and EMCOR’s prices, it was unlikely that Trademasters could have lowered its price to a level less than EMCOR’s.

Trademasters is represented by Katherine B. Burrows, Timothy F. Valley, Anna R. Wright, and Anna G. Sullivan of the PilieroMazza PLLC. The intervenor, EMCOR, is represented by Kenneth B. Weckstein and Andrew C. Crawford of Brown Rudnick, LLP. The agency is represented by Alexis W. Webster and Robert M. Notigan of the General Services Administration. GAO attorneys Heather Self and Peter H. Tran participated in the preparation of the decision.

GAO - Trademasters Service