After receiving revised proposals from offerors, the agency asked the awardee to clarify inconsistencies in a compensation plan. In response, the awardee gave the agency a corrected compensation plan. The protester alleged this exchange amounted to discussions, not clarifications. The COFC disagree. To determine whether exchanges are discussions, the court looks to whether offerors were allowed to revise proposals. Here, the offerors submitted a corrected compensation plan, but the corrected plan didn't alter the awardee’s price and only clarified information that was already in the proposal.
ENGlobal Government Services, Inc. v. United States, COFC No. 21-2317C
Background
The Defense Logistics Agency (DLA) posted a solicitation seeking maintenance of automated fuel equipment. DLA received three proposals, but during discussions, one of the offerors withdrew leaving only ENGlobal Government Services (EGS) and KBR Services in the competition. DLA awarded the contract to KBR.
EGS filed a protest with GAO, which was denied. EGS then filed a protest with the Court of Federal Claims. In response to the COFC protest,DLA took corrective action to amend the solicitation. The amendment required offerors to submit a total compensation plan as part of their proposals.
EGS and KBR submitted compensation plans as required by the amendment. DLA found inconsistencies in KBR’s plan and sought clarifications. In response to the clarifications request, KBR submitted a corrected compensation plan that added some details and corrected mathematical errors.
Following the receipt of compensation plans, DLA again awarded the contract to KBR. EGS filed another protest with GAO. EGS contended that the exchange between DLA and KBR concerning the compensation had been discussions, not clarifications. And, EGS argued, because the agency had only held these discussions with KBR, it had conducted unequal discussions. GAO agreed that DLA had conducted discussions with KBR. Nevertheless, GAO found that EGS had not been prejudiced by unequal discussions.
EGS then filed a second protest with the COFC.
Legal Analysis
Clarifications or Discussions
EGS reasserted the argument it raised before GAO, namely, that DLA’s exchanges with KBR were discussions, which meant that the agency should have also held discussion with EGS, too. The court rejected this argument for several reasons.
- EGS’s Argument Was Really a Challenge to an Amendment – EGS argued that if DLA had held discussions with all offerors, then ESG would have submitted a revised proposal with new pricing. But the court reasoned that the amendment that asked for compensation plans did not allow parties to submit new pricing. Rather, the compensation plan was simply an opportunity for offerors to show the details underlying their labor costs; it did not permit offerors to change their labor costs. Thus, EGS’s entire argument was based on the notion that it could have modified its labor costs, but that was not permitted. EGS’s real argument was a challenge to the amendment itself, which didn’t permit revisions. To challenge that amendment, however, EGS should have filed a protest before the deadline for the compensation plans.
- DLA Did Not Conduct Discussions – The test for determining whether exchanges are discussions is whether offerors were allowed to revise their proposals. Here, while KBR submitted a corrected compensation plan as part of the exchanges, this plan did not alter prices and had no impact on KBR’s price proposal. The purpose of the compensation plan was to support information that was already in the proposals. While KBR’s plan had contradictory numbers, the government did not intend or allow KBR to revise its price.
- Court Rejects GAO’s Conclusions – The court noted that GAO had found that DLA had held discussions. The court rejected GAO’s decision as conclusory. The court opined that GAO had failed to explain how KBR’s corrected compensation plan had materially altered the company’s proposal.
- EGS Could Not Modify Its Proposal – Even if the exchanges with KBR had constituted discussions, EGS could not have changed its prices and thus had not been prejudiced by the error. The compensation plan amendment did not permit offerors to revise their prices. Also, DLA had no concerns with EGS’s compensation plan. So even if the DLA had held discussions with KBR, it would not have held discussions with ESG. What’s more, it was not even clear that EGS would have actually revised its prices. EGS had been advised in previous discussions about concerns with its pricing but had elected not to change its prices.
Disparate Treatment
EGS further alleged that DLA disparately evaluated proposals with respect to transition costs. But the court found that EGS had undermined its own argument. To show disparate treatment, an offeror must demonstrate that the agency downgraded the protester’s proposal for deficiencies that were substantially indistinguishable from other offerors. In its protest, however, EGS repeatedly argued that its proposal was not similar to KBR’s, and that each company had different strategies. EGS could not argue there were stark differences between proposals while simultaneously arguing disparate treatment.
Other Arguments
EGS raised various other challenges to the evaluation—e.g.DLA didn’t evaluate whether KBR’s employees were exempt from the SCA, DLA didn’t consider risks associated with hiring of incumbent employees. Alas, the court characterized these arguments as “a miscellany of assorted grievances . . . all of which are either unsupported by the record, or amount to mere disagreement with the agency’s considered judgment.”
EGS is represented by Alexander J. Brittin, Mary Pat Buckenmeyer, and A. Jonathan Brittan, Jr. of Dunlap Bennett & Ludwig, PLLC. The intervenor, KBR, is represented by Seth M. Locke, Julia M. Vox, and Paul M. Korol of Perkins Coie LLP. The government is represented by Shari A. Rose, Brian M. Boynton, Patricia M. McCarhty, and Douglas K. Mickle of the Department of Justice as well as Adam J. Heer and Rachel M. Nobel of the Defense Logistics Agency.