Misunderstanding the Missing Words
This post is not really so much about misunderstanding the missing words, but the misunderstanding that is created by the missing words when read or hear "All contractors must be treated the same" or "All offerors must be treated equally", or such similar sentences. It is the part that should come after, but in many cases does not, that concerns me.
In the GAO Bid Protest Annual Report to Congress for Fiscal Year 2014 (B-158766, GAO-15-256SP), November 18, 2014, Susan A. Poling, General Counsel of Government Accountability Office, wrote:
Of the decisions resolved on the merits during fiscal year 2014, our Office sustained 13 percent. Our review shows that the most prevalent reasons for sustaining the protests during the 2014 fiscal year were: (1) failure to follow the evaluation criteria;1 (2) flawed selection decision;2 (3) unreasonable technical evaluation;3 and (4) unequal treatment.4 [Footnotes omitted]
[Well, at least she signed. Keep in mind that Washington, DC is a place where people write letters they don’t sign, and sign letters they don’t write.]
My concern is with the last of the four reasons “unequal treatment.” What’s wrong with that? What's wrong with not treating offerors equally? Where in the Federal Acquisition Regulation (FAR) does it say that all prospective contractors or all offerors or all contractors must be treated equally? Does it even make sense to treat all prospective contractors or all offerors or all contractors equally?
Similarly, in recent conversations I’ve heard contracting officers make similar statements, such as “all contractors must be treated equally” or “all offerors must be treated the same.” I would ask the same questions that I asked concerning the GAO statement.
What the comments of the GAO and of the contracting officers have in common is the underlying concept that everyone must be treated equally, must be treated the same. Does that make sense? At first blush, it may. After all, that’s fair, isn’t it? We were all reared being taught that we should be fair. That’s why in kindergarten everyone got equal access to the toys. But, let’s explore that concept with a simple example.
Let’s say that you are a contracting officer conducting a source selection IAW FAR Part 15, and it is time to conduct discussions with offerors in the competitive range. You have two offerors in the range Acme and Beta. You decided to hold discussions with Acme first. Your biggest concern with Acme’s proposal is the price, which was 17 percent above the Government estimate. In discussions you told Acme that its price was too high, significantly so, and that Acme needed to sharpen its pencil prior to final proposal revisions. Now, it is time to hold discussions with Beta, which has a price 17 percent below the Government estimate. What do you say to Beta? Well, if all offerors "must be treated the same," you must tell Acme that its price is too high, significantly so, and that Beta needs to sharpen its pencil prior to final proposal revisions.
Ridiculous you say? Absolutely! But, it is the ultimate conclusion, if all offerors must be treated the same, but only if. However, all offerors need not be treated the same.
What does the FAR have to say on the subject? The FAR requires that contracting officers conduct business with integrity, fairness, and openness. Specific to this issue is FAR 1.102-2( c )(3):
The Government shall exercise discretion, use sound business judgment, and comply with applicable laws and regulations in dealing with contractors and prospective contractors. All contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same. [Emphasis added]
What the GAO or contracting officers mean, or should mean, when they say all offerors and contractors must be treated the same or treated equally relates to the words that are typically left unsaid, but, hopefully meant (i.e., "in like circumstances").
Let’s go back to what the GAO said about unequal treatment. The footnote that was omitted above:
E.g., Alutiiq Pacific, LLC, B-409584, B-409584.2, June 18, 2014, 2014 CPD ¶ 196 (finding that agency disparately assigned strengths to awardee’s and protester’s proposal for offering essentially the same feature).” In the headnotes of the case it states “Protest that agency disparately assigned strengths to proposals during its evaluation is sustained where record shows that agency assigned different number of strengths to awardee’s and protester’s proposals for offering essentially the same feature.
The issue, then, is not unequal treatment, but unequal treatment in like circumstances. That is why in our fictitious negotiation the contracting officer will actually tell Acme that its price is too high and Beta that its price is too low.
In another protest, in another footnote, GAO gives another explanation:
8 In any event, where a protester alleges unequal treatment in the agency’s evaluation of past performance, it must show that the differences in ratings did not stem from differences between the offerors’ past performance, but rather, that the offerors were rated differently where there were similarities in their past performance. Myers Investigative and Security Servs., Inc., B-288468, Nov. 8, 2001, 2001 CPD ¶ 189 at 7-9; see Paragon Systems, Inc.; SecTek, Inc., B-409066.2, B-409066.3, June 4, 2014, 2014 CPD ¶ 169 at 8-9. Given the differences in the type of performance issues identified, their severity, and their recency, Global has made no such showing. [Global Integrated Security (USA) Inc., B-408916.3; B-408916.4; B-408916.5, December 18, 2014, Page 12, Footnote #8.]
To give you another example, from a different source, you can see this issue addressed in Federal Procurement Policy Administrator Dan Gordon’s “Myth-Busting”: Addressing Misconceptions to Improve Communication. The memorandum discusses various myths, or misconceptions, about Government-Industry relations. The first misconception was “We can’t meet one-on-one with a potential offeror.” The fact is described as Government officials can generally meet one-on-one with potential offerors as long as no vendor receives preferential treatment. The discussion, in part states:
Prior to issuance of the solicitation, government officials – including the program manager, users, or contracting officer – may meet with potential offerors to exchange general information and conduct market research related to an acquisition. In fact, the FAR, in Part 15, encourages exchanges of information with interested parties during the solicitation process, ending with the receipt of proposals. There is no requirement that the meetings include all possible offerors, nor is there a prohibition on one-on-one meetings. Any information that is shared in a meeting that could directly affect proposal preparation must be shared in a timely manner with all potential offerors to avoid providing any offeror with an unfair advantage (FAR 15.201(f)). [Emphasis added]
If the FAR required that we treat all prospective contractors the same, we would have to provide one-on-one meetings with all. But we don’t have all the time in the world, so we must marshal our resources accordingly. Instead of providing one-on-one meetings with all, we provide them to the prospective offerors that have the potential to successfully compete, not to every Tom, Dick, and Harriet that doesn’t have a “snowball’s chance”. [That last bit is a technical term.] I know that this makes some contracting officers, and many lawyers, nervous, but it is the right and proper thing to do.
So, next time somebody says that all prospective contractors or all offerors or all contractors must be treated the same, or must be treated equally, look for the missing words, and think about whether the speaker is interpreting them correctly.