When an agency opens discussions with offerors, those discussions must be fair.

In a recent decision, GAO recommended the reopening of competition for a contract worth up to $283 million based, in part, on a finding that an agency had engaged in misleading and unequal discussions.

Discussions are a type of exchange between an agency and each offeror before award of a solicitation that allows offerors a chance to revise their proposals to address weaknesses. In discussions, GAO noted, “an agency may not mislead an offeror through the framing of a discussion question into responding in a manner that does not address the agency’s actual concerns, or otherwise misinform the offeror concerning a problem with its proposal”, and the agency cannot favor one offeror over another.

Unfortunately, GAO found that the Census Bureau had engaged in just such unequal conduct in a major solicitation dealing with mobile devices related to the 2020 census.

In AT&T Corp., B-414886 (Oct. 5, 2017), AT&T protested issuance of a task order to CDW Government LLC under a request for proposals for a mobile devices solution to support the 2020 Decennial Census. The Census Bureau sought proposals for a fixed-price task order. Proposals needed to demonstrate “usability, performance, and security requirements; continuous, reliable cellular network coverage; and a technology refresh assessment.”

Evaluation would be on a best-value basis considering factors including past performance and technical approach. The technical approach “required offerors to address 13 elements including, as relevant here, a description of the specific mobile device proposed and why it was selected; how the offeror would provide a cellular service solution and maximize signal strength/reliability by designating the best carriers for each area; and how the offeror would address the requirements for technology refresh cycles for mobile devices.”

The agency received four proposals, including proposals from AT&T and CDWG. After completing an initial technical evaluation, the agency opened discussions with offerors and requested revised technical proposals. After evaluating revised proposals, the CDWG was rated technically highest, with a price of $283,492,962, while AT&T was ranked second, with a price of $191,850,841. As is relevant here, AT&T’s proposal was assigned a technical risk related to its multi-carrier solution.

In its protest, AT&T argued that both it and CDWG were initially “evaluated to have potential bias in their multi-carrier approaches, but only CDWG’s technical exchange addressed potential bias.”

In talks with CDWG, the agency “expressed concern that ‘CDWG’s pre-negotiated rates with [DELETED] [presented] a risk that could result in bias during the cellular carrier analysis,’–that is, the rates could affect carrier selection” and asked, “[h]ow does CDWG plan to ensure that its pre-negotiated rates with cellular carriers are unbiased?” Although the decision does not exactly spell this out, I believe what the agency was concerned with was that the mobile device provider would have too cozy of a relationship with one carrier and therefore not get the best rates, technology, or cellular coverage for the government. In response to these questions, CDWG revised its proposal (in a manner redacted in the decision), and the agency upgraded CDWG’s technical score by finding it had eliminated the risk of bias.

“Unlike the exchange with CDWG, the agency’s technical exchange with AT&T did not mention bias, even though the evaluators expressly raised a concern about bias for both companies.  Instead, the agency asked, “[how] does AT&T plan to include multiple cellular carriers into their cellular network approach?'” AT&T answered that it would use certain methods to determine the best-value carrier.

GAO concluded that

the record as a whole demonstrates the impropriety in the conduct of discussions. To the extent the agency contends that it was concerned about CDWG’s rates, and AT&T’s lack of detail–rather than bias–the record does not support the agency’s contentions.  As noted above, AT&T’s response was found lacking because it did not address bias in carrier selection.  To the extent the agency was concerned with the potential bias in each offeror’s approach, and raised bias with CDWG, it was obligated to similarly raise this concept with AT&T.  Accordingly, the agency’s discussions with CDWG were misleading and unequal in this respect, and we sustain the protest.

GAO recommended that “the agency reopen the competition, conduct discussions, accept revised proposals, reevaluate, and make a new selection decision in accordance with the evaluation criteria set forth in the RFP” and award costs to AT&T.

We have touched on inequality in discussions on SmallGovCon before.  For instance, GAO has noted that an agency cannot allow one offeror, but not others, to make revisions to a proposal as part of discussions. As the AT&T case demonstrates, when an agency conducts discussions, those discussions must be fair. Here, the lack of fairness could end up changing the result of an award worth a quarter billion dollars.

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