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Protest alleging that agency conducted misleading discussions is sustained. During the initial review of proposals, the agency found no weaknesses in the protester’s proposal. But after conducting discussions with other offerors and receiving revised proposals, the agency identified a flaw in the protester’s proposal. As a result of this flaw, the agency selected another offeror for award. GAO reasoned that even though the agency had identified the flaw after receiving revised proposals, it still should have re-opened discussions to give the protester an opportunity to address the flaw.

The Army Corps of Engineers posted an RFP seeking paving and construction services for airfields in South Korea. The Corps received ten proposals, including proposals from Sunglim Engineering and Construction Company and Yorbin Construction Co. The Corps awarded the contract to Sunglim, finding that its proposal had multiple strengths and no weaknesses.

Yorbin protested the award to Sunglim. In response, the Corps took corrective action to revise the solicitation and request revised proposals.

The Corps amended the solicitation to clarify requirements and then sent discussion questions to the various offerors identifying weaknesses in their proposals. Since the initial evaluation of Sunglim’s proposal had not identified weaknesses, the Corps did not conduct discussions with Sunglim. Thus, while Sunglim submitted a revised proposal, it was not materially different than its initial proposal.

The Corps evaluated revised proposals. This time it identified a flaw in Sunglim’s proposal. Due to this flaw, Sunglim received a lower rating than it had been assigned for its initial proposal. As a result of Sunglim’s lower rating, Yorbin was selected for award. Sunglim protested, alleging the Corps failed to conduct meaningful discussions because it didn’t identify the flaw in the Sunglim’s proposal before the submission of revised proposals.

GAO agreed with Sunglim. An agency must discuss all deficiencies and significant weaknesses identified in a proposal. While the Corps had not labeled the flaw in Sunglim’s proposal as a significant weakness, GAO found that it qualified. Agencies are required to disclose significant weaknesses in post-award debriefing, and here, the agency had disclosed the flaw in Sunglim’s debriefing. What’s more, nothing in the record indicated that the agency did not consider the flaw a significant weakness.

While the Corps did not identify the flaw in Sunglim’s until after it had conducted discussions and received revised proposals, the agency was still obligated to reopen discussions with Sunglim to disclose the newly identified weakness.

Sunglim is represented by Sang Chin An. The agency is represented by Matthew R. Keiser of the Army. GAO attorneys Glenn G. Wolcott and Christina Sklarew participated in the preparation of the decision.