“It’s Alive, It’s Alive”: Agency Did Not Err In Reviving Defunct Proposals; Avar Consulting, Inc., GAO B-417668 et al.

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Protest challenging the award of three data processing contracts is denied. The protester argued the agency erred by accepting one of the awardee’s earlier proposals and not the awardee’s final proposal. While noting that normally the submission of a revised proposal extinguishes earlier proposals, GAO found that the agency reasonably voided all offerors’ revised proposals and revived their previous proposals. Because the revivication was even-handed and did not favor any particular offeror, it was reasonable.

The Department of Labor (DOL) issued a solicitation seeking to award three contracts for data collection and processing services. The solicitation provided that DOL could award each contract individually, or it could award all three contracts to one offeror. DOL awarded all three contracts to TelaForce, LLC , finding that its proposal represented the best value overall and for each individual contract. An unsuccessful offeror, Avar Consulting, protested.

Avar first claimed that DOL erred by accepting one of TelaForce’s earlier proposals, and not the company’s final proposal. Shortly after award to TelaForce, Avar had filed a size protest with the SBA. While that protest was pending, DOL issued amendment 5 to the solicitation to change the period of performance. In light of this amendment, DOL requested revised proposals. After the size protest was resolved, however, DOL issued amendment 7 to the solicitation, which withdrew amendment 5. DOL had thought that the size protest would affect scheduling, but once the size protest had been resolved, DOL went back to its original scheduling of performance. Because DOL withdrew amendment 5, it disregarded the proposal revisions it received in response to the amendment and made award to TelaForce based on an earlier proposal. Avar contended that the submission of proposal revisions after amendment 5 had extinguished all prior proposals. Thus, DOL could not have accepted TelaForce’s prior proposal for award.

GAO noted a line of cases in which an offeror had submitted a late or unacceptable proposal, and the agency made award based on the offeror’s initial proposal. In those cases, GAO had held that submission of a final proposal extinguishes a previous proposal. But GAO found this case distinguishable. Unlike the agency in those other cases, here, DOL revived proposals in an even handed process. Rather than allowing only one offeror to rely on an earlier proposal, DOL issued an amendment that voided every offeror’s subsequent proposal. No offeror was afforded special treatment. GAO found that this even-handed revival of proposals did not prejudice the competitive system.

Avar alleged that by accepting TelaForce’s earlier proposal, DOL effectively conducted unequal discussions with TelaForce because the awarded contracts had a different start date and incorporated a new SCA wage determination and collective bargaining rates. But GAO was not persuaded that the inclusion of new start dates and wage determinations in the contract constituted discussions. An agency is not obligated to obtain new proposals simply because the start date has changed. Additionally, incorporation of the new wage determination did not change the terms of TelaForce’s proposal and thus did not constituted discussions.

Avar argued that DOL was required to seek revised pricing from offerors because the agency had received a new SCA wage determination and a new collective bargaining agreement after it received TelaForce’s initial proposal. GAO, however, reasoned that it ordinarily does not require an agency to request revised proposals each time there is a new wage determination and CBA. To do so, would give an incumbent contractor the ability to manipulate the timing of labor negotiations to force an agency to resolicit. Moreover, it was not clear the Avar had been prejudiced by the failure resolicit pricing. The company had not explained how its relative standing among the offerors would have been affected by the new CBA pricing.

Next Avar contended that TelaForce had misrepresented the nature and extent of its experience and past performance. Avar alleged that TelaForce had improperly claimed credit for the past performance of other companies whose assets it had acquired. GAO found that while TelaForce’s statements concerning its past performance were unclear, they did not amount to a material misrepresentation. In any event, TelaForce had indicated in other parts of its proposal that it was new company and not the original awardee of the contracts it offered as past performance examples.

Finally, Avar challenged DOL’s relevancy determinations with regard to some of the past performance references submitted by TelaForce. Avar claimed that the DOL had credited TelaForce’s past performance as meeting relevancy criteria that it did not meet. GOA found that DOL’s relevancy judgment were reasonable and consistent with the evaluation criteria.

Avar is represented by Jeffrey M. Chiow, Stephen L. Bacon, Deborah N. Rodin, and Eleanor M. Ross of Rogers Joseph O’Donnell. The intervenor, TelaForce is represented by Erin M. Estevez, and Pablo A. Nichols of Cooley LLP. The agency is represented by Jose Otero and Virginia Ackerman of the Department of Labor. GAO attorneys Alexander O. Levine and Jennifer D. Westfall-McGrail participated in the preparation of the decision.

GAO - Avar Consulting