The agency in this case advised the protester through several rounds of discussions that some of its proposed salaries seemed low. In response, the protester raised its rates. It turned out that the whole time the agency was conducting discussions, the protester’s price was among the highest, and the discussions only caused the protester to raise its price further. Did the agency conduct misleading discussions under these circumstances? Not according to GAO.
NOVA Dine, LLC, GAO B-420454, B-420454.2
Background
The Defense Information Systems Agency (DISA) issued an RFP for an IDIQ contract for technologies refreshment and transition operations to future networks. After receiving proposals and conducting several rounds of discussions, DISA awarded the contract to Competitive Range Solutions, LLC (CRS). An unsuccessful offeror, NOVA Dine, LLC, protested.
Legal Analysis
- DISA Didn’t Conduct Misleading Discussions – Through multiple rounds of discussions, DISA had informed NOVA that some of its salaries appeared low. NOVA alleged these discussions were misleading because the company had already proposed one of the highest overall prices. NOVA complained these discussions caused it to increase its price even further. But GAO did not find the discussions misleading. DISA disclosed cost realism concerns to NOVA. NOVA could have explained its labor rates to the agency, but it made a decision to raise its rates. DISA did not coerce the company into raising its rates. If NOVA disagreed with DISA, it had the responsibility to explain why its proposed rates were correct.
- DISA Didn’t Fail to Consider an Organizational Change – The solicitation required offerors to disclose certain organizational changes—mergers, acquisitions, etc.—for the past performance evaluation. CRR had purchased the assets of another company’s contract after the company had been removed for cause. NOVA alleged that CRS failed to disclose this transaction as required by the solicitation, and that the agency failed to consider it as part of the past performance evaluation. GAO, however, found that CRS was not required to disclose this transaction. The solicitation required disclosures of major organizational changes like mergers and reorganizations. The mere purchase of contract assets was not the type of organizational change that offerors needed to disclose or that the agency had to consider.
- No Unequal Treatment – NOVA contended DISA disparately evaluated proposals under the management approach factor. It complained that CRS received a strength for its approach to coordinating task orders. NOVA claimed it proposed a similar approach but didn’t receive strengths. GAO rejected this argument, finding that the NOVA’ approach did not contain the same level of detail as CRS’s.
NOVA is represented by Thomas A. Mason, Francis E. Purcelli, Joseph Berger, and Mona Adabi of Thompson HIne LLP.. The intervenor, CRS, is represented by Cherie J. Owen, William O’Reilly, of Crowell & Moring LLP; Daniel Strouse of Cordatis LLP, and Matthew Schoonover of Schoonover & Moriarty LLC. The agency is represented by Colleen A. Eagan and Vera S. Strebel of the Defense Information Systems Agency. GAO attorneys Alexander O. Levine and Kenneth E. Patton participated in the preparation of the decision.
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