Protest alleging agency conducted unequal discussions is denied. The agency claimed it had merely sought clarifications. But in response to the purported clarification, the awardee had submitted a revised proposal. In light of the revised proposal, GAO found that the agency had improperly conducted discussions with only one offeror. Nevertheless, GAO found the protester had not been prejudiced by this error. Even if the agency had held discussions with the protester, the protester had not shown that it would have revised its proposal.
Background
The Defense Logistics Agency (DLA) awarded a contract for automated fuel handling equipment to Kellogg Brown and Root Services, Inc. (KBR). An unsuccessful offeror, ENGlobal Government Service, Inc. filed a protest with the Court of Federal Claims, alleging DLA didn’t evaluate the price realism of KBR’s professional employees. DLA took corrective action to reevaluate.
As part of the corrective action, DLA issued a solicitation amendment allowing offerors to revise their total compensation plans. After receiving revised proposals, DLA again awarded the contract to KBR. ENGlobal filed a protest alleging DLA conducted unequal discussions and misevaluated total compensation plans.
Legal Analysis
- Test for Discussions – ENGlobal alleged DLA unreasonably held discussions with KBR but not with ENGlobal. Where an agency holds discussions with one offeror, it must do so with others. An agency’s characterization of its communications is not controlling. The test for discussions is whether an agency has provided an opportunity for a proposal to be materially changed.
- KBR Changed Its Proposal – DLA argued that it only sought clarifications from KBR. GAO disagreed. DLA had asked KBR a question about a discrepancy between its hourly rates and annual pay. In response to the question, KBR submitted a revised proposal with new values for annual compensation. DLA evaluated that revised proposal. DLA’s communication with KBR constitute discussions.
- ENGlobal Was Not Prejudiced – GAO found ENGlobal had not been prejudiced by the unequal discussions. The discussions with KBR were held after offerors had submitted their final professional compensation plans. The communication with KBR concerned only the compensation plan. DLA had not identified any issues in ENGlobal’s plan that would have necessitated discussions. Given that final amendments were limited to compensation plans, even if DLA had held discussions with ENGlobal, the agency would not have required ENGlobal to revise any portion of its plan.
- No Error in Evaluation of Compensation Plans – ENGlaboal also alleged DLA unreasonably evaluated KBR’s compensation plan by failing to consider the risk associated with KBR’s reducation in wages relative to the incumbent contract. But GAO found that DLA had in fact considered this risk. ENGlobal’s complaints amounted to disagreement with the evaluation.
ENGlobal is represented by Alexander J. Brittan of the Brittan Law Group, PLLC and Mary Pat Buckenmeyer of Dunlap Bennet & Ludwig PLLC. The intervenor, KBR, is represented by Seth H. Locke, Julia M. Fox, and Paul M. Korol of Perkins Coie LLP. The agency is represented by Rachel M. NOble of the Defense Logistics Agency. GAO attorneys April Y. Shields and Christina Sklarew participated in the preparation of the decision.
