Minimize the discrepancy between assets/inventory recorded in the CMDB and actual NRC assets/inventory. This includes ensuring minimally the following information for each unit:

• Asset Tag
• Serial Number
• User Location (PCs and related peripherals only)
• Configuration (OS, loaded software, etc.)
• Asset Status
• Responsible Owner
• Host Name (Servers only)
• IP Address (Servers only)
• Business Function/Application (Servers only)
• Business Owner (Servers only)
• Make/Model
• Physical Location (Non-mobile units)
• Warranty Info/Maintenance Certificate Number (Servers only)

SOW sect. C.5.2.3.3.2(5).

During the initial round of discussions, the agency instructed the protester to address the requirement to "minimize the discrepancy between assets/inventory recorded in CMDB and actual NRC assets/inventory. (PSOW C.5.2.3.3.2(5), p. 61)," since L-3 had not addressed this requirement in its initial proposal. AR, Tab 11c, Discussion Questions for L-3 at 1. In its response, L-3 failed to describe how it would ensure that the specific information identified in SOW sect. C.5.2.3.3.2(5) (i.e., asset tag, serial number, etc.) was recorded in the CMDB. In his source selection determination, the SSO found the lack of detail regarding the information concerning assets to be recorded and stored in the protester's CMDB to be a "worrisome" aspect of L-3's proposal.

The protester argues that the agency's discussion question failed to furnish it with adequate notice of the weakness in its proposal because it cited only the first sentence of SOW sect. C.5.2.3.3.2(5)--that is, according to the protester, while the agency notified L-3 that it had failed to address the requirement to minimize the discrepancy between assets/inventory recorded in the CMDB and actual NRC assets/inventory, the agency did not also indicate that its failure to address the recording of the asset tag, serial number, etc., was also considered to be a weakness.

We find the protester's argument to be without merit. Agencies are not required to "spoon-feed" offerors during discussions, but rather need only lead offerors into the areas of their proposals that require amplification or revision. Martin Elecs., Inc.; AMTEC Corp., B-404197 et al., Jan. 19, 2011, 2011 CPD para. 25 at 6. The agency's discussion question here specifically informed the protester that it had not adequately addressed the requirement set forth in SOW sect. C.5.2.3.3.2(5) to minimize the discrepancy between actual and recorded assets/inventory. Moreover, the clear terms of SOW sect. C.5.2.3.3.2(5) furnished notice that minimizing the discrepancy required that, at a minimum, information such as the asset tag and serial number be recorded in the CMDB. In our view, the foregoing was more than sufficient to lead the protester into the area of its proposal that required amplification. Having sufficiently led L-3 to the area of concern in the first round of discussions, NRC was not required to raise the matter again in any subsequent round of discussions, even where it continued to be considered a concern by the agency. U.S. Filter Operating Serv's., Inc., B-293215, Feb. 10, 2004, 2004 CPD para. 64 at 3.  (L-3 STRATIS, B-404865, June 8, 2011)  (pdf)

ACS protests the adequacy of the agency's discussions in connection with a single aspect of its proposed solution to the requirement. ACS, the incumbent contractor, has been providing the agency's requirements using a highly customized software product developed for DOL, and [deleted]. In its initial proposal, ACS offered to transition its software product from the [deleted] it currently uses to an [deleted] solution (referred to in the record as [deleted] or [deleted]), and to do so during performance under its predecessor contract, so that ACS could offer the [deleted] solution to the agency for the solicited requirement. The protester maintains that the [deleted] solution would offer improved performance and, potentially, lower cost over the life of the solicited requirement.

After evaluating ACS's initial proposal and advising the firm that implementation of the [deleted] solution under its predecessor contract was not acceptable, the agency subsequently advised the protester during discussions that its proposal was based on an incorrect assumption, specifically, the assumption that the agency would allow ACS to migrate its existing system to an [deleted] solution during performance of the predecessor contract. The agency therefore advised ACS that "'[b]ecause [ACS's] assumption is incorrect, the Offeror may wish to reconsider the effect of this incorrect assumption and revise its proposal accordingly."' AR, exh. C-5, Initial Ratings, Factor 1, deficiency.

In response to the agency's initial discussion question, ACS eliminated the proposed migration from its current [deleted] system to its originally proposed [deleted] solution, stating as follows:

ACS understands, respects, and will attend to the DOL's remarks regarding the [deleted] Migration referenced in our original proposal. In response to DOL's concerns, ACS has halted the [deleted] Migration and removed [deleted] from the revised proposal. Instead, ACS will deliver a . . . solution based upon the proven [deleted].

AR, exh. J-1-1, File 6, at 2.

In the source selection decision, the agency identified a risk associated with the firm's use of its existing [deleted] system. Specifically, the agency noted that, because ACS was proposing legacy technology (i.e., its [deleted] system), support for the system might end, and the expertise required for the [deleted] system and the [deleted] used by ACS in its [deleted] system solution could become scarce over time. Source Selection Decision Document, at 9.

ACS asserts that the agency never identified this specific risk during discussions, despite the fact that the agency engaged in several additional rounds of discussions after ACS proposed eliminating the [deleted] solution and using its [deleted] solution instead. According to the protester, the agency's failure in this regard amounted to inadequate discussions because this risk constituted a new deficiency in its proposal, and the agency was obliged to discuss it with ACS.

We have no basis to object to the adequacy of discussions here. Discussions are adequate where offerors are advised of the weaknesses, excesses or deficiencies in their proposals. US Filter Operating Serv's., Inc., B-293215, Feb. 10, 2004, 2004 CPD para. 64 at 3. While discussions should be as specific as practicable, there is no requirement that they be all-encompassing or extremely specific in describing the agency's concerns; rather, the legal requirement is that they generally lead the offerors into the areas of their proposals that require amplification or correction, without being misleading. Id. Moreover, where an agency has advised an offeror of its concern, there is no requirement that it raise the issue again in subsequent rounds of discussions, even where the issue continues to be a concern to the agency. Id.

Subsequent to the written discussions described above, the agency and ACS engaged in oral discussions, during which ACS again represented that it intended to use its [deleted] solution instead of the [deleted] solution originally proposed. Specifically, the protester's representative stated:

ACS has withdrawn and completely removed any references to our technology refresh initiative. We referred to this previously as [deleted] migration . . . . We intended to have this refresh completed in our current contract year. And quite frankly, cost . . . lower cost infrastructure was the driver behind that . . . . We decided not to put it in our current proposal because we believe that implementing both the enhancements [to the [deleted] system] to meet the additional requirements and the technology refresh quite honestly compounded the complexity and introduced risk.

Video 1, at 13:00-13:49. ACS's representative also specifically recognized during those oral discussions that its current [deleted] solution, while generally meeting the solicitation requirements, nevertheless was, in his words, "'short of state-of-the-art."' Id. at 40:15.

The protester's representatives went on to suggest that, once its [deleted] solution was fully implemented and certified, ACS intended again to propose to the agency migration from the [deleted] solution to the [deleted] solution. Video 1, at 41:55-42:22. In response to that suggestion, the agency's technical evaluation panel chairman specifically cautioned the protester that it would not receive credit for any proposed migration from one [deleted] to another, unless such a migration was included in the firm's proposal:

[A]ny tech value enhancement . . . would probably, may, add value to the best value decision that we have to make. But, what you just stated about doing this sometime in the future, we can't consider that unless it's part of the proposal.

Video 1, at 42:31-42:49. In response, the protester's representative specifically acknowledged that he understood, but that the firm had made a decision--based on its assessment of implementation risk--to forego offering the migration from one [deleted] to another as part of its proposal. Id.

In summary, the record shows that ACS understood that its proposed [deleted] solution was "'short of state-of-the-art,"' but that it had made a business decision to forego implementation of the state of the art [deleted] solution because of risks inherent in implementing any migration. The record further shows that ACS understood that the agency would not give it credit in the evaluation and source selection decision based merely on a suggestion that the migration could take place sometime in the future. While the protester is correct that the agency did not expressly identify the specific risk it ultimately articulated in its source selection decision during discussions, we think it nonetheless adequately led the protester into that area of its proposal, and made clear to the protester that the consequences of not including the [deleted] solution in its proposal would affect the agency's best value deliberations. In response, the protester clearly decided, on the basis of its business judgment, that not including the [deleted] solution in its proposal was its best--least risky--proposal strategy. We therefore conclude that the agency's discussions with the protester in this area were adequate. Simply stated, an agency need not identify every conceivable consequence of an offeror's business decision in order to discharge its duty to engage in meaningful discussions.  (ACS Federal Solutions, LLC, B-404129, January 7, 2011)  (pdf)

ITW complains that it was misled during discussions. Specifically, the protester maintains that the Navy improperly advised it during discussions that its prices for two contract line item numbers (CLIN) were "somewhat lower" than the independent government estimate (IGE). ITW states that, in reliance on this notification, it increased its final price for these two CLINS. ITW also maintains that it was required to review its final pricing for all CLINs as result of the Navy's comments with respect to these two CLINs. Protester's Comments at 3.

When discussions are conducted, they must at a minimum identify deficiencies and significant weaknesses in each competitive-range offeror's proposal. Federal Acquisition Regulation (FAR) sect. 15.306(d)(3); Multimax, Inc., et al., B-298249.6 et al., Oct. 24, 2006, 2006 CPD para. 165 at 12. Discussions must be "meaningful," that is, sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision. Smiths Detection, Inc., B-298838, B-298838.2, Dec. 22, 2006, 2007 CPD para. 5 at 12. An agency may not mislead an offeror--through the framing of a discussion question or a response to a question--into responding in a manner that does not address the agency's concerns, or misinform the offeror concerning a problem with its proposal or about the government's requirements. Academy Facilities Mgmt.--Advisory Opinion, B-401094.3, May 21, 2009, 2009 CPD para. 139 at 6; Multimax, Inc., et al., supra. In the context of discussions relating to cost or price, agencies may not coerce or mislead an offeror during discussions into raising its prices. Academy Facilities Mgmt.--Advisory Opinion, supra.

Here in its discussions with ITW, the Navy identified a number of weaknesses and deficiencies in the protester's initial proposal; these weaknesses and deficiencies were identified in 25 evaluation notices (ENs). AR at 3. The agency's concerns with ITW's proposed prices were not discussed in any of the ENs, but were communicated to ITW in the letter transmitting the ENs.[3] With respect to the pricing for the two CLINs (for which the agency was concerned the pricing was low), the agency informed ITW as follows:

[Y]ou are advised to carefully review the price proposal for any misunderstanding of the requirements, as several proposed . . . CLINs appear out of line with the Government estimate. . . . [B]ased on market research . . . CLINs . . . appear to be priced somewhat lower than the government estimate; therefore you are advised to carefully review your price proposal for any misunderstanding of the requirements.

AR, Tab 2, Navy Discussions with ITW, at 1.

In its FPR, ITW raised its prices for these two CLINs by approximately $32,000, and lowered its overall price by more than $1 million. AR, Tab 11, Navy Analysis of ITW's Prices, at 3.

We do not find that the Navy's discussions with ITW were misleading. The record shows that the Navy found that in these two particular instances ITW's prices appeared understated in comparison to the IGE. The agency accurately conveyed its concerns to ITW in discussions. ITW does not dispute that its pricing for these two CLINs was below the IGE. Rather, ITW essentially argues that the Navy "implie[d]" that unless the offeror raised its prices it would be removed from the competition and/or downgraded regarding its ability to perform the work at the proposed price. Protest, Sept. 14, 2010, at 1; Protest, Oct. 23, 2010, at 3 ("how else would ITW be expected to respond other than increase [its] pricing?"). We find no merit to this argument. The agency simply communicated to ITW that its CLIN pricing appeared lower than that of the IGE in two particular regards, and asked the protester to review its pricing. This did not compel ITW to take any particular action, but left to the firm's business judgment whether it should raise its prices or explain the prices earlier submitted.  (ITW Military GSE, B-403866.3, December 7, 2010)  (pdf)

CIGNA points out that while the agency conducted three rounds of discussions with the competitive range offerors, the only issue regarding CIGNA's approach to printing and postage costs raised by the agency concerned CIGNA's initial failure "to include HH&H claims volume in calculating the proposed costs for Internet/Communications and Output Mail Postage," which CIGNA corrected in its FPR. Protester's Comments at 11; see AR, Tab 17, CIGNA Discussion Questions and Responses (Sept. 30, 2008), at 101. As noted by CIGNA, the record shows that the agency did not raise any other concerns during discussions regarding CIGNA's proposed printing and postage costs.

The Federal Acquisition Regulation (FAR) requires that where an agency undertakes discussions with offerors, the contracting officer shall discuss with each firm being considered for award deficiencies and significant weaknesses identified in the firm's proposal. FAR sect. 15.306(d)(3). Discussions must be meaningful, equitable, and not misleading. Cygnus Corp., Inc., B-292649.3; B-292649.4, Dec. 30, 2003, 2004 CPD para. 162 at 4; Lockheed Martin Corp., B-293679, May 27, 2004 CPD para. 115 at 7. Discussions cannot be meaningful unless they lead an offeror into those weaknesses, excesses or deficiencies in its proposal that must be addressed in order for the proposal to have a reasonable chance of being selected for contract award. Cygnus Corp., Inc., supra; Lockheed Martin Corp., supra.

The agency does not argue that it raised its concerns regarding CIGNA's proposed printing and postage costs during its discussions with the protester, acknowledging that, as reflected in the record, the "discrepancy" between the printing and postage costs proposed by the other competitive range offerors and CIGNA "was only identified after the submission of FPRs, when each offeror's proposed costs were compared with one another." AR at 45 n.7; Agency Supp. Report at 11. Rather, the agency contends that its "cost adjustment to [CIGNA's] proposal was minor," in that "it increased [CIGNA's] total evaluated cost by [DELETED]% and reduced the cost difference between [CIGNA] and [Highmark] from [DELETED]% to [DELETED]%." Agency Supp. Report at 17. The agency continues here by arguing that because the adjustment was "minor," the "adjustment was not the equivalent of a 'significant weakness,' nor did it concern 'an aspect[] of the offeror's proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal's potential for award," and thus the agency's concerns here did not have to be raised with CIGNA during discussions. Agency Supp. Report at 17 (quoting FAR sect. 15.306(d)(3)).

We disagree. In this regard, we first reject the agency's contention that its concerns with CIGNA's proposed printing and postage costs, and the resultant upward adjustment to CIGNA's proposed costs, were "minor" or otherwise concerned matters that did not have to be raised with CIGNA in order for discussions to be meaningful. As set forth above, the agency's upward adjustment constituted, by the agency's own calculations, an $[DELETED] or [DELETED] percent increase to CIGNA's proposed costs, which caused the cost advantage associated with CIGNA's proposal to be reduced from [DELETED] percent to [DELETED] percent. We simply fail to see, and do not believe that the agency has adequately explained, why an upward adjustment to CIGNA's proposed costs of [DELETED] percent can reasonably be characterized as "minor" or otherwise inconsequential under the circumstances here. Additionally, we note that the agency has not pointed to anything in the contemporaneous record of the evaluation and source selection stating or otherwise providing that the failure to raise this issue with CIGNA during discussions was due to the agency's view that the cost adjustment was "minor." As such, we give little weight to the agency's assertions crafted in the heat of litigation that the agency's upward cost adjustment to CIGNA's proposal would have been and should be considered "minor," and thus was not required to be raised during discussions. Novex Enters., B-297660; B-297660.2, Mar. 6, 2006, 2006 CPD para. 51 at 4; Boeing Sikorsky Aircraft Support, B-277263.2, B‑277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15. In the context of the trade-off actually made here, we cannot conclude that this adjustment was "minor."

Although the agency correctly points out that an agency has no duty to reopen discussions to allow an offeror to address proposal defects or significant weaknesses first introduced in the offeror's response to discussions or in a post-discussion proposal revision, Honeywell Tech. Solutions, Inc., B-400771; B-400771.2, Jan. 27, 2009, 2009 CPD para. 49 at 10, such was not the case here. That is, the agency does not claim, and there is nothing in the record to indicate, that the discrepancy between CIGNA's proposed printing and postage costs and the other offerors' proposed printing and postage costs was different in any material way between the offerors' initial proposals and FPRs. In other words, the aspect of CIGNA's cost proposal that caused the agency concern was present in CIGNA's initial proposal. The fact that the agency did not realize until after discussions had concluded and the agency had received FPRs that CIGNA's proposed printing and mailing costs were substantially lower than the costs proposed for these same services by the other offerors, and thus, in the agency's view, were understated, does not relieve the agency of its obligation to conduct meaningful discussions. Al Long Ford, B-297807, Apr. 12, 2006, 2006 CPD para. 68 at 8. Where, as here, an agency, after discussions are completed, identifies a concern pertaining to the proposal as it was prior to discussions that would have had to be raised if it had been identified before discussions were held, the agency is required to reopen discussions in order to raise its concern with the relevant offeror. Id.

(Sections deleted)

In sum, we find that the agency's concerns with CIGNA's proposed printing and postage costs should have been raised with CIGNA during discussions in order for discussions to have been meaningful, and sustain the protest on this basis.  (CIGNA Government Services, LLC, B-401062.2; B-401062.3, May 6, 2009)  (pdf)

AMEC argues that the agency's discussions regarding the weakness identified in its proposal under factor 3, preliminary project schedule, were not meaningful because they did not disclose the true nature of the agency's concern regarding its proposed use of the Microsoft Project software. AMEC also contends that the agency failed to properly consider as part of its technical evaluation under factor 2, particular project execution strategies, the fact that the seed project site has been designated as a wetlands area, as disclosed by AMEC during its discussions with the agency.

The record reflects that the agency's discussions with AMEC with respect to factor 3 were flawed. It is a fundamental precept of negotiated procurements that discussions, when conducted, must be meaningful, equitable, and not misleading. AT&T Corp., B-299542.3, B-299542.4, Nov. 16, 2007, 2008 CPD para. 65 at 6. An agency may not mislead an offeror‑‑through the framing of a discussion question or a response to a question--into responding in a manner that does not address the agency's concerns, or misinform the offeror concerning a problem with its proposal or about the government's requirements. MCT JV, B-311245.2, B-311245.4, May 16, 2008, 2008 CPD para. 121 at 15-16; Multimax, Inc., et al., B-298249.6 et al., Oct. 24, 2006, 2006 CPD para.165 at 12; Metro Mach. Corp., B‑281872 et al., Apr. 22, 1999, 99-1 CPD para. 101 at 6.

Here, as noted above, the agency's technical evaluation team identified a weakness in AMEC's technical proposal based on its use of the software program Microsoft Project, which the agency concluded was "not the most applicable for managing the [design/build] process or construction projects . . . lacks the analytical capabilities of other construction oriented software . . . and may adversely impact the overall management and reporting effort." AR, Tab 15, Technical Evaluation, at 000485. In its discussions with AMEC, the agency's questions, however, focused on specific features of the Microsoft Project software, in particular, its ability to manage schedule "float." While AMEC was able to satisfactorily address the agency's specific questions in this regard, the record reflects that the agency continued to fault AMEC for proposing Microsoft Project as adversely impacting the overall management and reporting effort of the project, and that it was the presence of this weakness which prevented AMEC from achieving a higher rating under factor 3, therefore materially affecting the agency's technical evaluation of AMEC's proposal. In this regard, the record reflects the agency's view that AMEC's proposal had several strengths under factor 3 and no other weaknesses, but that, based on the risks associated with its software selection, AMEC was not entitled to a higher technical rating. AR, Tab 19, Technical Evaluation Report, at 000584. By being asked only to address specific questions regarding the particular features of Microsoft Project, AMEC could not have reasonably understood the true nature of the agency's broader concerns about the use of Microsoft Project. As a consequence, the agency's discussions were materially misleading, thereby depriving AMEC of an opportunity to address the agency's concern regarding the use of Microsoft Project in the management of the seed project.

The agency raises several arguments in defense of the adequacy of discussions, none of which alters our conclusion that its discussions with AMEC were fundamentally flawed. Specifically, the agency contends that, pursuant to FAR sect. 15.306(d)(3), it was not required to discuss its general concerns regarding AMEC's use of Microsoft Project since the weakness was not "significant," and it was not identified as a deficiency. In this regard, the agency suggests that it did not consider AMEC's use of Microsoft Project to be an unacceptable approach since the technical evaluation team determined that it had the "minimum acceptable level of scheduling capabilities." AR, Tab 15, Technical Evaluation, at 000485. Moreover, the agency argues that identifying the use of Microsoft Project as a weakness would have been inappropriate since it would have been tantamount to directing AMEC to implement a particular technical approach and thereby imposing an undisclosed requirement.

While it is true that agencies are only required to address "significant" weaknesses and deficiencies during discussions, FAR sect. 15.306(d)(3) further indicates that these are the "minimum" areas for discussion. The record reveals that the agency went well beyond these minimum requirements during its discussions with the eight firms in the phase II competition. In this regard, the record reflects that the agency identified nearly every weakness, in most instances verbatim, from the technical evaluation findings, without regard to whether the weakness was considered "significant" or whether the weakness was associated with an "unacceptable" approach. By way of example, in its discussions with one of the awardees, the agency indicated that it considered the offeror's use of soil-supported ground slabs to be "acceptable," yet the agency advised the offeror that its proposed approach was considered "to be more prone to long term settlement issues." AR, Tab 16, Agency's Discussion Questions, at 000572. Given the agency's decision to hold broad discussions with all firms, which went well beyond the FAR's minimum requirements, it was incumbent on the agency to do so with all offerors equally, and it may not now defend its failure to have apprised AMEC of a perceived weakness in AMEC's proposal based on the FAR's minimum discussion requirements. See also, FAR sect. 15.306(e) (an agency shall not engage in exchanges that "favors one offeror over another.")

In addition, we find the agency's concerns about directing AMEC toward a particular technical approach to be misplaced. Had the agency simply identified to AMEC the perceived risks associated with AMEC's proposed software, AMEC would then have been in a position to develop an appropriate response, which could have ranged from continuing to propose the software notwithstanding the associated risk, justifying its decision to the agency, or proposing to use a different software package, any of which could have addressed the agency's concerns. While there might have been tradeoffs associated with these various options, AMEC should have been allowed to make such a decision based on an understanding of the true nature of the agency's concerns regarding its technical proposal.

We also find that the agency's consideration of the wetlands issue under evaluation factor 2 was improper. AMEC argues that it was the only offeror to have identified the project site as a potential wetland and that the agency failed to reasonably consider this fact in its evaluation of the other offerors' proposals. As noted above, for factor 2, particular project execution strategies, offerors were required to address project site specific conditions at Cape May, New Jersey, to include "environmental, and complications related to doing work in the New Jersey area." RFP at 82. This provision essentially required offerors to perform due diligence regarding the nature of the agency's requirements and to incorporate their findings in their proposals.

In its initial proposal, AMEC advised the agency that the project site "may be classified as wetlands in accordance with State of New Jersey standards," and went on to address the potential wetlands designation as an aspect of the permitting process, which was incorporated in AMEC's project schedule. AMEC Proposal at 000686-000688. The record indicates that the other offerors did not specifically identify this potential concern.

During discussions, the agency asked AMEC to clarify its wetland reference and to identify "information which would alter the conclusion that the site is not in a designated wetland area." AR, Tab 17, Discussion Questions, at 000566. In its response, AMEC provided the agency with publicly available information contained in the New Jersey Department of Environmental Protection's iMap-NJ system, which specifically identified the project site as a wetland, and provided the basis for AMEC's belief that there was a need for the wetland issue to be addressed with the state of New Jersey, notwithstanding the fact that it was unlikely the project site ultimately would be found to be a wetland.

The agency concedes that the iMap-NJ system does in fact identify the project site as a wetland and it does not dispute the propriety of AMEC's consideration of the iMap information. Contracting Officer's Supplemental Statement, at 000873. Rather, the agency asserts that the site is not in fact considered a wetland by the state of New Jersey, as reflected by a 2003 Integrated Natural Resources and Environmental Assessment, which had been provided to the agency by the New Jersey Department of Environmental Protection, as well as information solicited from an official within the New Jersey Department of Environmental Protection, thereby rendering immaterial the failure of the other offerors to identify the project as potentially a wetland. Supplemental Agency Report, at 000865. We disagree.

The information upon which the agency now relies was not publicly available and was not otherwise made available to any of the offerors during the competition. For this reason, once the agency learned of AMEC's reasonable reliance on the publicly available iMap information, which was in direct conflict with the information that was in the agency's sole possession which shaped the premise of its technical evaluation of the other offerors' proposals, the agency was obligated to clarify the agency's understanding of wetland requirement with AMEC. Absent clarification of the matter, AMEC was placed in the position of addressing a solicitation requirement in a manner different than the other offerors and which placed it at a competitive disadvantage to the other offerors given the conflicting public and nonpublic information. The agency's failure to clarify the wetland issue was contrary to the fundamental principle that a solicitation must provide for the submission of proposals based on a common understanding of the agency's requirements. See Media Funding, Inc. d/b/a Media Visions, Inc., B-265642, B-265642.2, Oct. 20, 1995, 95-2 CPD para. 185 at 3. We therefore sustain the protest on this basis as well.  (AMEC Earth & Environmental, Inc., B-401961; B-401961.2, December 22, 2009)  (pdf)

Sabre asserts that the agency failed to provide it with meaningful discussions regarding previously unidentified weaknesses under the demonstrated understanding and management/technical approach subfactors. For example, it maintains that the weaknesses related to its DPM, quality assurance surveillance plan, updated CSA manuals, and work breakdown structure (WBS) stemmed from issues present in its original proposal and were unrelated to the discussion questions raised, such that it was not on notice of the specific issues of concern to the agency.

When an agency engages in discussions with an offeror, the discussions must be meaningful, that is, they must lead the offeror into the areas of its proposal that require correction or amplification. Hanford Envtl. Health Found., B‑292858.2, B‑292858.5, Apr. 7, 2004, 2004 CPD para. 164 at 8. However, an agency is not obligated to reopen negotiations to give an offeror the opportunity to remedy a defect that first appears in a revised proposal. American Sys. Corp., B-292755, B‑292755.2, Dec. 3, 2003, 2003 CPD para. 225 at 8.

The discussions here were unobjectionable. For example, the agency's initial discussions noted that Sabre's WBS did not provide sufficient detail to depict all SOW requirements. In our view, the initial question was sufficient to lead Sabre to provide a response that included a more detailed WBS, and the TET found Sabre's response to this weakness to be adequate during the FPR evaluation. In re-evaluating the FPRs, however, the TEP came to a different conclusion based on its identifying continuing weaknesses, specifically, missing milestones regarding some operational tasks and deliverables. There was nothing unreasonable or improper in the TEP's changing its original view as to the adequacy of Sabre's discussions response based on the re-evaluation. Since the identified weaknesses represented defects first appearing in Sabre's FPR in response to the original discussions--rather than newly identified weaknesses in Sabre's initial proposal--the agency was not required to reopen negotiations to provide Sabre another opportunity to respond.

We reach the same conclusion with regard to Sabre's proposed DPM. As mentioned above, during the original discussions, the TEP identified a weakness regarding Sabre's failure to clearly identify the different roles and responsibilities related to implementing its communications initiatives. TEP Evaluation at 10. When Sabre's FPR added a DPM as part of its solution, the TEP identified a new weakness based on the lack of information on this individual; since the weakness was introduced in Sabre's FPR, the agency did not raise the matter again. Id. Sabre argues that, since its initial proposal mentioned the DPM (e.g., in its organization chart and part of its risk review team), but did not then identify him, his role, or his function, the DPM concern really was a weakness in its original proposal--rather than a new weakness--that the agency should have raised during the original discussions. Thus, once the agency's re‑evaluation identified the lack of that information as a weakness, the agency was required to re‑open discussions to address it. See Lockheed Martin Simulation, Training & Support, B-292836 et al., Nov. 24, 2004, 2005 CPD para. 27 at 11 (where weakness, present in initial proposal, is identified for first time in re-evaluation, agency must discuss the new weakness).

We disagree. The fact that Sabre's initial proposal contained little information on the DPM is irrelevant; it was Sabre's proposing the DPM as part of its communication initiatives, without detailed information, that led to the agency's specific concern. Prior to that time, the agency had no specific reason to be concerned about the lack of detail on the DPM's role and function. Once Sabre proposed the DPM as part of its solution to an identified weakness, it was Sabre's responsibility to provide complete information. See Carlson Wagonlit Travel, B‑287016, Mar. 6, 2001, 2001 CPD para. 49 at 3 (offeror is responsible for submitting an adequately written proposal). Its failure to do so here led to a new evaluated weakness, which--because it was introduced for the first time in its FPR--did not obligate the agency to reopen discussions following the re-evaluation. American Sys. Corp., supra.

The protest is denied.  (Sabre Systems, Inc., B-402040.2; B-402040.3, June 1, 2010)  (pdf)

The protester argues that the agency conducted materially misleading discussions regarding Ewing's proposed roofing system, and that the agency's evaluation of Ewing's and Overland's proposals was unreasonable in a number of respects.

This protest is illustrative of one of the challenges an agency faces when, for whatever reason (but here in taking corrective action in response to a previous protest), the agency reevaluates proposals after discussions are complete. In this regard, we have held that where an agency, during a reevaluation of proposals, identifies new concerns in a proposal and those concerns would have had to be raised had they been identified before discussions were held, the agency is required to reopen discussions and raise the new concerns with the offeror. Lockheed Martin Simulation, Training & Support, B-292836.8 et al., Nov. 24, 2004, 2005 CPD para. 27 at 11; DevTech Sys., Inc., B-284860.2, Dec. 20, 2000, 2001 CPD para. 11 at 4.

Here, prior to taking corrective action, the agency raised its concerns regarding Ewing's proposed roofing system during discussions, and specifically identified its concerns as a "significant weakness." After evaluating Ewing's final proposal revision, the agency assigned the proposal ratings of "marginal" under the technical solution factor and "satisfactory" overall. AR, Tab 5, Ewing Discussion Letter (June 8, 2009). These ratings were consistent with the terms of the solicitation, which stated that a "significant weakness" may result in an adverse impact on the proposal's rating under the technical solution factor and overall rating. RFP at 10.

In contrast, during the reevaluation--performed as part of the agency's corrective action in response to Ewing's initial protest--the agency determined that Ewing's proposed roofing system constituted a "deficiency in meeting the stated solicitation requirements." Rather than downgrading Ewing's proposal, this reassessment rendered the proposal "ineligible for award," in accordance with the terms of the RFP--which, as quoted above, expressly stated that proposals with uncorrected deficiencies would be ineligible for award. AR, Tab 2, BCM, at 15, 19-20; RFP at 10. Because the agency did not reopen discussions with the offerors, Ewing was never informed that its proposal was deficient. Although the agency is correct that its concern with Ewing's proposed roofing system was raised during discussions (such that the concern is not a "new concern"), the identification of the concern as a "significant weakness," rather than a "deficiency," misled the protester. Specifically, the protester was never apprised of the severity of the agency's concern, or the ramifications of not adequately addressing it--i.e., ineligibility for award.

It is a fundamental concept of negotiated procurements that discussions, when conducted, must be meaningful; that is, discussions may not mislead offerors and must identify deficiencies and significant weaknesses in each offeror's proposal that could reasonably be addressed in a manner to materially enhance the offeror's potential for receiving award. Federal Acquisition Regulation (FAR) sect. 15.306(d); Lockheed Martin Corp., B-293679 et al., May 27, 2004, 2004 CPD para. 115 at 7. An agency may not, through silence, the framing of a discussion question, or in a response to a question, mislead an offeror into responding in a manner that does not address the agency's concerns, or that misinforms the offeror concerning a problem with its proposal or the government's requirements. Lockheed Martin Corp., supra; Metro Mach, Corp., B-281872 et al., Apr. 22, 1999, 99-1 CPD para. 101 at 6.

Under the circumstances here, since the agency's concerns with the protester's proposed approach changed during the reevaluation to the point that, should they remain unaddressed, the proposal would be rejected as ineligible for award, the agency was required to reopen discussions. On this issue, the protester represents that "[h]ad the Agency identified the proposed roof design as a deficiency during discussion[s], [Ewing] would have been made aware that its proposal was ineligible for award, which would have elicited a different response from [Ewing] to the Discussion Letter." Protest at 6; see Protester's Comments at 6.

The protest is sustained.  (Ewing Construction Co., Inc., B-401887.3; B-401887.4, April 26, 2010)  (pdf)

Lack of Meaningful Discussions

The protester argues that the evaluators failed to conduct meaningful discussions with it by failing to advise it that they considered its schedule to be overly aggressive. We agree.

When an agency engages in discussions with a vendor, the discussions must be "meaningful," that is, sufficiently detailed to lead the vendor into the areas of its quotation requiring amplification or revision. Honeywell Tech. Solutions, Inc., B‑400771, B-400771.2, Jan. 27, 2009, 2009 CPD para. 49 at 10.

Here, we do not think that the request for a new schedule reasonably conveyed to the protester that the evaluators viewed its proposed schedule as too aggressive; given that a period of over a year had elapsed between submission of the vendors' initial quotations and submission of their final quotations, we think that vendors could reasonably have understood the request to be nothing more than a request for updated information. We note in this connection that the evaluators furnished precisely the same request for a new schedule to Privasoft, and in its case, the request was not intended to convey a concern over the duration of the schedule. We think that by failing to advise the protester in discussions that they considered its project schedule to be too short, the evaluators failed to conduct meaningful discussions with it. Moreover, we think under these circumstances that the advice given at the debriefing did not obviate the need to raise this concern when the agency reopened discussions.  (AINS, Inc., B-400760.4; B-400760.5, January 19, 2010) (pdf)

As discussed above, on June 6, after various conference calls regarding the terms of the Velos license agreement, the contracting officer prepared a marked up version of the document that reflected the areas where the agency and Velos had agreed upon the terms of the special license agreement for the software. See AR, Tab 33, Email from Contracting Officer to Velos (June 6, 2008); Tr. at 323-28, 338. As indicated above, however, the contracting officer, in his award determination, found the Velos license agreement submitted with its July 7 final proposal revision was unacceptable because the language containing paragraph 2.1 (quoted above) conflicted with the RFP requirements that the agency be granted a perpetual use license to distribute and use the software without limits within the boundaries of the NCI Clinical Research Enterprise. The record evidences that paragraph 2.1 of the license submitted with Velos's final proposal revision is the exact language that Velos and the contracting officer agreed was acceptable after lengthy discussions. Tr. at 323‑28; compare AR, Tab 33, Velos's Final Proposal Revision (July 7, 2008), Special License Agreement) (also designated Hearing exh. No. 3) with Hearing exh. No. 15, Marked Up Velos License Prepared by Contracting Officer (June 6, 2008).

As to Velos's refusal to agree to a provision stating that "any conflict between the terms of this Agreement, and the Contract or applicable Federal law of regulation, shall be resolved by the terms of the Contract or applicable Federal Law or Regulation," Velos asserts that this was a matter discussed earlier in the negotiations. Velos's Post-Hearing Comments at 10. According to Velos, this matter was resolved by including the following language defining "Contract" in the software license and agreeing to include the license in Attachment J-1 to the contract:

"Contract" shall mean Contract No. 1406-04-08-CT-20201, executed by and between the Parties hereto on June XX, 2008. This Special License Agreement shall be Attachment J-1 to the Contract and shall be incorporated by reference into the Contract at Section J.

AR, Tab 33, Velos's Final Proposal Revision (July 7, 2008), Special License Agreement), Definitions, at 1. Velos explains that under the contract's order of precedence clause, incorporating the license in Attachment J would subordinate it to the rest of the contract. Velos Post‑Hearing Comments at 10; see FAR sect. 52.215-8 (incorporated by the RFP at 38). As argued by Velos, the record shows that the identical provision defining "Contract" included in the earlier markup that Velos and the contracting officer agreed was acceptable to the parties was contained in the final proposal revision. See Tr. at 329-30; compare Tab 33, Velos's Final Proposal Revision (July 7, 2008), Special License Agreement) (also designated Hearing exh. No. 3) with Hearing exh. No. 15, Marked Up Velos License Prepared by Contracting Officer (June 6, 2008).

The problems the contracting officer found with the language in Schedule B are based solely upon the problems that he now has with paragraph 2.1 of the license and not the Schedule B language per se. See AR, Tab 51, Award Summary, at 15. In fact, at the hearing, the contracting officer admitted that he may well have prepared the Schedule B language in question. Tr. at 352.

As to the escrow agreement, the record shows that this agreement was not required by the RFP and was only included at the request of the agency. See Contracting Officer's Statement at 12. The contracting officer also testified that he never advised Velos during the negotiations that there was a problem with the proposed terms of Velos's escrow provision. Tr. at 350.

The agency asserts that there was no agreement on the terms of the Velos license. Hearing exh. No. 16, Statement of Contracting Officer (Oct. 31, 2008). In support of this assertion the agency references a string of emails that occurred after June 6, culminating in the June 27 email closing negotiation because of numerous unresolved issues and advising that the competition would be reopened. Id. The agency also references the request for final proposal revisions (quoted above) and an email in response to a question submitted after the request for final proposal revisions that advised offerors to be aware that licenses that were inconsistent with federal law, regulation, or the solicitation requirements might result in the proposal being eliminated. AR, Tab 37, Request for Final Proposal Revisions (June 27, 2008); Hearing Exh. No. 13, Email from Contracting Officer (July 2, 2008). In fact, Velos agrees that there was no final agreement on the terms of its license when the negotiations were closed. Velos's Post Hearing Comments at 6.

However, there is no evidence in the record that the contracting officer ever specifically or even generally told Velos that the previously agreed-upon language in its license agreement in the "Grant of License" paragraph and in the "Contracts" definition was considered unacceptable by the agency. Because the reasons provided by the contracting officer in determining that the Velos license was unacceptable are based upon the precise language that Velos and the agency had found acceptable, and because the agency had not advised Velos that this language was no longer acceptable, we find that Velos was prejudicially misled in submitting its final proposal revision that included the agreed-upon language. We sustain the protest on this basis.  (Velos, Inc.; OmniComm Systems, Inc.; PercipEnz Technologies, Inc., B-400500; B-400500.2; B-400500.3; B-400500.4; B-400500.5; B-400500.6; B-400500.7, November 28, 2008) (pdf)

Clark/Caddell also argues that the agency failed to engage in meaningful discussions regarding the performance capability evaluation factor issue in that the agency asked misleading questions and failed to provide meaningful responses. Specifically, the protester contends that the agency did not provide meaningful guidance to remedy the purported discrepancy between the protester's CLIN schedule and its summary schedule.

Discussions, when conducted, must be meaningful; that is, discussions may not mislead offerors and must identify deficiencies and significant weaknesses in each offeror's proposal that could reasonably be addressed in a manner to materially enhance the offeror's potential for receiving award. PAI Corp., B-298349, Aug. 18, 2006, 2006 CPD para. 124 at 8. Agencies are not required to "spoon-feed" an offeror during discussions; agencies need only lead offerors into the areas of their proposals that require amplification. LaBarge Elecs., B-266210, Feb. 9, 1996, 96-1 CPD para. 58 at 6.

As a preliminary matter, we recognize that the first IFN erroneously directed Clark/Caddel to confirm the correct number of days proposed for construction duration, as opposed to contract duration. On the other hand, the words of the schedule were clear, i.e., the CLIN entry (identified in the discussion question) was preceded by the words "Contract Duration in Calendar Days After the Notice to Proceed is received." RFP at 1.

That said, we think that by holding two rounds of discussions, the agency guidance was ultimately sufficient to put the protester on notice that the agency wanted the CLIN schedule to include the total contract duration. As discussed above, the agency's concerns that the protester's summary schedule in its technical proposal for contract duration was different from the enforceable contract duration listed in the CLIN schedule was reasonable, especially given the liquidated damages provisions of the RFP.

Furthermore, we note evidence in the record that suggests the protester understood the agency's concerns. In a declaration submitted by a representative of Clark/Caddell describing his conversation with the contract specialist on September 18, the representative stated that he asked the contract specialist "how Clark/Caddell could commit to a fixed duration when Clark/Caddell had no control over the actions of others." Clark/Caddell Response to Agency Dismissal Request, Nov. 2, 2009, Exh. 10, at 2. The Clark/Caddell official explained that his "was an attempt to get [the contract specialist] to understand that the longest fixed duration in the solicitation is the 450-day duration for construction, which would be the only reasonable and enforceable entry on the CLIN Schedule." Id. Thus, it appears that the protester was concerned about being bound to an overall contract duration period as opposed to the construction duration period.

In conclusion, we see no support for the protester's arguments that the discussions here were misleading.

The protest is denied.  (Clark/Caddell Joint Venture, B-402055, January 7, 2010)  (pdf)

In its revised proposal, TMM provided a revised drawing of its plan and a chart that compared the proposed size of TMM’s rooms with that required by the SFO. TMM’s chart showed that a number of TMM’s proposed rooms were smaller than that specified by the SFO. TMM’s Revised Proposal, Room Size Chart. With regard to renovations to its existing building, TMM informed VA that “[o]ther than painting, we do not believe there will be many renovations in the existing space.” TMM also did not propose to widen the 5-foot corridor, but did offer that “[i]f the VA wants all the fifty doors to be enlarged from 36” doors to 42” doors, the cost would be an additional $50,000 ($1,000 per door).” AR, Tab 4, TMM Revised Proposal, at 2.

VA determined that TMM’s revised proposal did not reflect the best value to the government, although TMM offered the lowest evaluated price of $4,790,436. Specifically, VA noted that TMM failed to meet the contract requirements for corridor width, room square footage, and TMM “would only [be] making minor renovations (painting) to the existing . . . space.”[3] AR, Tab 6, Price Negotiation Memorandum, at 11. In contrast, the agency found that Alpine’s proposal at an evaluated price of $5,215,654 offered “the best proposed” layout for the space, meeting the specified room sizes. Id. at 10. Award was made to Alpine, and this protest followed.

TMM complains that VA did not conduct meaningful discussions with the firm. Specifically, TMM argues that the agency’s request that TMM “clarify” its room sizes was inadequate to put the firm on notice that the agency had found TMM’s room sizes to be a deficiency. We disagree.

Discussions, when conducted, must be meaningful; that is, discussions may not mislead offerors and must identify deficiencies and significant weaknesses in each offeror’s proposal that could reasonably be addressed in a manner to materially enhance the offeror’s potential for receiving award. PAI Corp., B-298349, Aug. 18, 2006, 2006 CPD para. 124 at 8.

Here, we find that VA conducted meaningful discussions with TMM. Specifically, VA informed TMM that it should “clarify” its room sizes “in accordance with Schedule A.” This request should have informed TMM of the agency’s concern under the technical quality evaluation factor that TMM had not demonstrated “how they are going to meet the identified space and square footage requirements and room build‑out details in Schedule A.” See SFO at 17. Although TMM believes that the agency should have been more specific about its concerns, an agency is not required to “spoon-feed” an offeror during discussions, but need only lead the offeror into the areas of its proposal that requires amplification. LaBarge Elecs., B-266210, Feb. 9, 1996, 96-1 CPD para. 58 at 6.

TMM also appears to argue that VA’s discussions were not meaningful because the agency did not inform TMM that the agency viewed the firm’s proposed build-out plans to be inadequate. The record indicates that TMM was also led into this area of its proposal that required amplification. In any event, the protester fails to show that it was prejudiced. Competitive prejudice is an essential element of a viable protest; where the protester fails to demonstrate that, but for the agency’s actions, it would have had a substantial chance of receiving the award, there is no basis for finding prejudice, and our Office will not sustain the protest. Trauma Serv. Group, B‑254674.2, Mar. 14, 1994, 94-1 CPD para. 199 at 6; see Statistica, Inc. v. Christopher, 102 F.3d 1577 (Fed. Cir. 1996). TMM does not state that, had it been notified of the agency’s concerns in this regard, it would have offered any renovations to its space or otherwise modified its proposal in any way.  (TMM Investments, Ltd., B-402016, December 23, 2009) (pdf)

Argon maintains that any inadequacy of the MTBOMF¹ information it provided was the result of its being misled by the agency regarding its MTBF information during discussions. Specifically, Argon asserts that, because the agency did not object to Argon’s MTBF data (provided in its response to the initial discussion questions) being based on performance of its CPS at 55C, it assumed that it could also present its MTBOMF data based on 55C.

This argument is without merit. Discussions, when held, must be meaningful; that is, they must lead offerors into those areas of their proposals requiring amplification or revision, and may not prejudicially mislead the offeror. American States Utilities Servs., Inc., B-291307.3, June 30, 2004, 2004 CPD para. 150 at 6-7. However, agencies are not required to engage in successive rounds of discussions until all proposal defects have been corrected, nor are agencies required to reiterate concerns that were not alleviated by a firm’s proposal revisions. Id. Where an agency engages in initial discussions that lead an offeror to revise its proposal, the agency’s subsequent silence in connection with those proposal revisions during a subsequent round of discussions cannot reasonably be understood as an indication that the agency determined that the initial weakness or deficiency was cured. Id.

Here, under the circumstances, there was no reasonable basis for Argon to interpret the agency’s silence regarding the MTBF data as a waiver of the plainly stated RFP requirements regarding MTBOMF. See American States Utilities Servs., Inc., supra. Simply stated, since the RFP clearly required MTBOMF information to be presented in terms of a particular temperature, and the RFP was not amended in this regard, Argon was required to provide the information in those terms. To the extent Argon chose to rely on its impressions from the agency’s silence instead of complying with the RFP’s clear requirements, it did so at its peril.  (Argon ST, Inc., B-401387, August 6, 2009)  (pdf)

---------------------------

¹ mean time between operation mission failure.

Discussions

AAA next argues that the Forest Service never advised the company that its dressing area drainage was insufficient, and therefore the agency failed to conduct meaningful discussions regarding this perceived deficiency in its units. Protest at 15.

In negotiated procurements, contracting agencies generally must conduct discussions with all offerors whose proposals are within the competitive range. Federal Acquisition Regulation sect. 15.306(d)(1). Agencies are not required to afford offerors all-encompassing discussions. Reflectone Training Sys., Inc.; Hernandez Eng'g Inc., B-261224; B-261224.2, Aug. 30, 1995, 95-2 CPD para. 95 at 10. Although discussions must be meaningful, leading an offeror into the areas of its proposal requiring amplification or revision, the agency is not required to "spoon-feed" an offeror as to each and every item that could be revised or addressed to improve its proposal. Comprehensive Health Serv., Inc., B-310553, Dec. 27, 2007, 2008 CPD para. 9 at 7.

Here, as noted above, the agency conducted oral and written discussions with AAA, during which it noted the apparent problems with drainage in the dressing area. In the handwritten notes attached to the May 17 discussion letter, the Forest Service expressed a "concern that [the] dressing area does not have the ability to contain all gray water" and that the units "may have a drainage issue." AR at 448 (AAA Discussion Letter Notes at 1). As evidenced by the record here, the agency clearly communicated its concerns that the dressing area drainage was deficient. Also, it is clear from the protester's cover letter--discussed in greater detail below--that it was aware of these issues from the discussions. AR at 455-56 (AAA's Cover Letter to its Final Proposal, May 29, 2008 at 2-3). Therefore, we deny AAA's contention that discussions in this area were inadequate.  (AAA Mobile Showers, Inc., B-311420.2, March 27, 2009)  (pdf)

Lack of Meaningful Discussions

Honeywell protests that the agency failed to conduct meaningful discussions by failing to raise the one technical weakness it found in Honeywell's FPR.

As set forth above, the RFP contained four RTOs that offerors were to address in their technical proposals, either by the submission of a TIP and cost proposal (RTOs #1-3) or a study paper (RTO #4). RTO #1 concerned a new space-to-ground link terminal (SGLT) at the White Sands Complex, New Mexico. The RFP informed offerors that as part of an effort to ensure adequate SN grounds systems resources were available, a project to develop a new SGLT was being initiated. The stated task requirement was for the contractor to complete the first phase of the new SGLT project, including planning, definition of the architecture, operations concepts, requirements, external interfaces, and preliminary design. RFP, RTO #1, at 01245. The solicitation also informed offerors that a TIP submission was to include, at a minimum, the technical approach for the specific requirements of the task, identification of potential technical challenges, identification and mitigation of risks, and a detailed description of any assumptions made in the response. SOW at 00845.

Honeywell submitted its TIP for RTO #1 as part of its initial proposal. AR, Tab 13, Honeywell Initial Proposal (Mission Suitability), at 2021-47. The SEB rated Honeywell's initial proposal, including RTO responses, excellent under the technical approach subfactor, and identified a total of seven strengths and two weaknesses supporting its determination. Id., Tab 40, Initial SEB Report, at 09941-47. Both of the technical approach weaknesses identified in Honeywell's initial proposal concerned its RTO #1 TIP. The SEB first found that Honeywell's RTO #1 response did not identify certain specific noteworthy risks associated with the completion of the RTO #1 requirement. Second, the agency evaluators found that Honeywell's RTO #1 TIP contained various questionable assumptions. Id. at 09946-47. It is the second of the identified weaknesses that is the subject of Honeywell's protest here.

NASA then conducted discussions with Honeywell and informed the offeror of both identified technical approach weaknesses. With regard to the second weakness, the agency stated, "Honeywell's RTO #1 response contains the following questionable assumptions, which require clarification and/or substantiation, or should be corrected and their impact on the RTO be addressed," and then identified the specific assumptions the agency evaluators had questioned. Id., Tab 43, NASA Discussions with Honeywell, at 10143.

Honeywell addressed the agency's discussion topics as part of its FPR. The offeror's FPR included a "highlighted" version that specifically indicated those portions of its revised proposal that had been changed (either added or deleted). The SEB considered Honeywell's discussion responses as part of the evaluation of the offeror's revised proposal, and determined that Honeywell had remedied both originally-identified weaknesses. Specifically, with respect to the second weakness--that Honeywell's RTO #1 TIP contained various questionable assumptions--the SEB found the offeror's revised proposal had adequately addressed each assumption. Id., Tab 80, Final SEB Report, at 23649-50.

The SEB determined, however, that Honeywell's FPR contained a new weakness, namely that the offeror's response demonstrated an inadequate understanding of the requirements analysis, trade study execution and analysis, and requirements identification aspects of the systems engineering process. Id. at 23647-48. Each of the findings on which the SEB based its determination of the new weakness in Honeywell's FPR resulted from the new (i.e., highlighted) sections in the offeror's revised proposal. Id., Tab 46, Honeywell's FPR, at 10663-80. For example, Honeywell's assertion that the candidate architecture could be interfaced with the legacy antenna interconnect mechanisms was a new section in the offeror's revised proposal, as was Honeywell's assertion that a to-be-completed upgrade to the White Sands Complex local area network would have sufficient margin to support the requirements for the new SGLT. Id. at 10674-75, 10680.

Although discussions must address deficiencies and significant weaknesses identified in proposals, the precise content of discussions is largely a matter of the contracting officer's judgment. See FAR sect. 15.306(d)(3); American States Utils. Servs., Inc., B-291307.3, June 30, 2004, 2004 CPD para. 150 at 6. When an agency engages in discussions with an offeror, the discussions must be "meaningful," that is, sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision. Hanford Envtl. Health Found., B-292858.2, B-292858.5, Apr. 7, 2004, 2004 CPD para. 164 at 8. Where proposal defects are first introduced either in a response to discussions or in a post-discussion proposal revision, an agency has no duty to reopen discussions or conduct additional rounds of discussions. L-3 Commc'ns Corp., BT Fuze Prods. Div., B-299227, B-299227.2, Mar. 14, 2007, 2007 CPD para. 83 at 19; Cube-All Star Servs. Joint Venture, B-291903, Apr. 30, 2003, 2003 CPD para. 145 at 10-11.

We conclude that NASA's discussions with Honeywell were meaningful. As set forth above, the discussions expressly informed Honeywell of the specific weaknesses that the SEB had identified in the offeror's initial proposal. Further, the record clearly reflects that the specific significant weakness which Honeywell claims that NASA failed to mention in discussions was first introduced in Honeywell's post-discussions FPR and was not part of its initial proposal. As a result, NASA had no obligation to conduct additional rounds of discussions in order to permit the offeror to address this matter. See L-3 Commc'ns Corp., BT Fuze Prods. Div., supra.  (Honeywell Technology Solutions, Inc., B-400771; B-400771.2, January 27, 2009) (pdf)

As noted above, if the agency in accordance with FAR sect. 25.502 determines that Tiger’s vehicles are TAA-compliant, then the agency must evaluate Tiger’s quotation, including whether Tiger’s quoted price is fair and reasonable. We recognize that the agency determined that Tiger’s price was “exorbitantly unreasonable” and found Tiger ineligible for award on this basis. AR, Tab 56, Price Negotiation Memorandum, at 13. However, the record also confirms that the agency failed to raise this issue during discussions, even though it held numerous rounds of discussions with the vendors and requested revised quotations inviting vendors to reduce their price. Although the agency asserts that “discussions were not intended” and were not held, we find that the “numerous questions and clarifications” issued to vendors followed by the agency’s request for “best and final offers,” which included revisions to vendor’s prices, constitutes discussions as contemplated by the FAR. AR, Tab 56, Price Negotiation Memorandum, at 12; Contracting Officer’s Statement at 9; Tr. at 173; see FAR sect. 15.306(d).

Although the solicitation here did not require the agency to hold discussions with vendors, once an agency chooses to do so, as occurred here, the discussions are required to be meaningful; that is, the agency is required to raise with a vendor significant weaknesses and deficiencies identified in the vendor’s quotation. FAR sect. 15.306(d)(3). Discussions cannot be meaningful if a vendor is not advised of the significant weaknesses or deficiencies that must be addressed in order for its quotation to be in line for award. DevTech Sys., Inc., B-284860.2, Dec. 20, 2000, 2001 CPD para. 11 at 4. There is no doubt that Tiger’s quoted price was viewed by the agency as a deficiency, as Tiger’s price was the sole basis for the agency’s finding that the quotation was ineligible for award. In holding discussions with Tiger, but not raising with the firm the concern that Tiger’s price was unreasonable, the agency did not provide Tiger with meaningful discussions. DevTech Sys., Inc., supra, at 4-5.

We find a reasonable possibility that Tiger was prejudiced by the agency’s failure to hold discussions concerning the reasonableness of the firm’s price. Had the agency raised its concern with Tiger, then Tiger would have had the opportunity to explain why its price was fair and reasonable or to reduce it, such that the agency may have ultimately found the price to be fair and reasonable and, thus, Tiger’s quotation would have been in line for award. Coupled with the agency’s failure to properly evaluate TAA eligibility, we find that the agency’s failure to hold meaningful discussions prejudiced the protester, and we sustain the protest on these bases. See Cogent Sys., Inc., B‑295990.4, B‑295990.5, Oct. 6, 2005, 2005 CPD para. 179 at 10-11.  (Tiger Truck, LLC, B-400685, January 14, 2009) (pdf)

Burchick complains that VA did not conduct meaningful discussions with Burchick, given that VA did not apprise the firm of, or provide it with the opportunity to address, significant evaluated weaknesses in its technical proposal. The protester contends that it could have resolved the agency’s concerns with the firm’s proposal had the firm been provided with discussions concerning its technical proposal.

VA argues that the scope and extent of discussions to be conducted with offerors is “a matter of contracting officer judgment” and that agencies are not required to discuss every area in which a proposal can be improved. In this regard, VA contends that the agency was not required to conduct discussions with respect to Burchick’s technical proposal, given that the contracting officer concluded that the firm could not have materially improved its technical proposal. AR at 6-7.

We agree with VA that a procuring agency has considerable discretion in determining whether and how to conduct discussions in a negotiated procurement under Federal Acquisition Regulation (FAR) Part 15. However, where, as here, discussions are conducted, they must at a minimum identify deficiencies and significant weaknesses in the proposals of each competitive range offeror. FAR sect. 15.306(d)(3); Multimax, Inc., et al., B-298249.6 et al., Oct. 24, 2006, 2006 CPD para. 165 at 12; PAI Corp., B-298349, Aug. 18, 2006, 2006 CPD para. 124 at 8. Discussions must be “meaningful,” that is, sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision. Smiths Detection, Inc., B-298838, B‑298838.2, Dec. 22, 2006, 2007 CPD para. 5 at 12; Symplicity Corp., B-297060, Nov. 8, 2005, 2005 CPD para. 203 at 8.

We find that VA did not conduct meaningful discussions with Burchick, since the agency limited its discussions to the firm’s cost proposal and did not identify any of the agency’s significant concerns with Burchick’s technical proposal that resulted in the firm’s proposal receiving only 50.8 points out of 100 possible points.[6] In particular, the protester’s proposal received only 22 of 40 available points under the past performance factor, based upon the agency’s judgment that Burchick had provided detailed information on only one relevant project, where the solicitation requested a minimum of four projects. Similarly, Burchick’s proposal received only 14.4 of 30 available points under the construction management factor, based upon the agency’s conclusion that Burchick had failed to identify a project manager and to detail its quality control plan, as required by the RFP. Burchick’s proposal received no points under the small business participation factor, because the agency found that Burchick had essentially not provided the required small business participation plan. Given the significant reductions in Burchick’s technical point score associated with these identified concerns, and the importance to the agency of the omitted information, we find that these concerns can only be considered to be significant weaknesses or deficiencies, and that the agency’s failure to identify them during discussions was inconsistent with its obligation to conduct meaningful discussions.

We also do not agree with VA that Burchick could not have materially improved its proposal if discussions were conducted with the firm with respect to the evaluated concerns in its technical proposal. The protester has explained that it could have addressed each of the agency’s concerns that resulted in Burchick’s technical proposal being downgraded. For example, with respect to the evaluation of the firm’s past performance, Burchick contends that it identified 37 other healthcare projects in its technical proposal, which the protester could have detailed if the firm had been asked in discussions. Protester’s Comments at 4. With respect to the identity of its project manager and to its proposed quality control plan under the construction management factor, Burchick states that, had it received discussions, the firm would have clarified the identity of its project manager and provided further detail with respect to its quality control plan. Id. at 6-7. With respect to the small business participation factor, Burchick states that it could have further explained the firm’s proposed teaming relationship with a service-disabled veteran-owned small business.

In sum, we find that VA failed to conduct meaningful discussions with Burchick, because the agency failed to identify significant weaknesses or deficiencies in the firm’s technical proposal. We also find a reasonable possibility that Burchick was prejudiced by the agency’s failure to conduct meaningful discussions, given that Burchick offered the lowest price and could have addressed these concerns in its technical proposal such that it may have been found to offer the best value to the agency.  (Burchick Construction Company, B-400342, October 6, 2008) (pdf)
 

The record demonstrates that the agency, in conducting discussions with the protester, forwarded a detailed list of discussion questions to IVI, and answered a number of questions from IVI regarding the discussion questions. Contrary to the protester’s assertion, we find based upon our review of the record that the agency’s discussions were meaningful.

For example, IVI argues that the agency “failed to conduct meaningful discussions regarding software engineering.” Protester’s Comments at 21. In this regard, the protester first points that the agency’s initial technical evaluation noted as a weakness under the technical approach criterion to the technical factor that

[t]he Software Engineering section of this proposal is not discussed in detail. This could lead to major deficiencies in the design, implementation, and testing of the suggested software development tasks. 

AR, Tab 3, Initial Technical Evaluation, at 26. The protester next points out that the relevant discussion question it received was as follows:

The software section of the proposal is not discussed in detail. This could lead to major deficiencies in the design, implementation, and testing of the offeror’s proposed changes in software.

AR, Tab 5, IVI Discussion Questions, at 5. The protester argues that “[s]oftware engineering is a different concern than software in general,” and that because of the discussion question IVI received from the agency, “IVI was not informed of the potential significant weakness in its software engineering.” Protester’s Comments at 21.

The agency explains that the reference in the initial evaluation to “software engineering” was a simple error, given that the neither the RFP nor IVI’s proposal contained “software engineering” sections, but rather, both included sections addressing software maintenance and security. Agency Supp. Report at 10; RFP amend. 6, at 5-6. The agency explains that the contracting officer, in preparing IVI’s discussion questions, deleted the discussion question’s reference to “software engineering” in order to correct this error, and that IVI was in fact properly informed during discussions of the agency’s perceived weaknesses in the software section of IVI’s proposal. Agency Supp. Report at 10.

Although IVI continues to complain “that the agency misled IVI from addressing the evaluators’ actual concern: software engineering,” and that because of this, the “evaluators may have downgraded IVI for failing to answer a question that was not asked,” see Protester’s Supp. Comments at 12, the protester does not explain, and we cannot see, how this could possibly be the case, given that neither the RFP nor IVI’s proposal included a “software engineering” section, and given that there is no evidence in the agency’s evaluation of FPRs that IVI’s FPR was downgraded for failing to address “software engineering.”

As another example, the protester argues that the agency “failed to conduct meaningful discussions regarding the biweekly literature surveillance memoranda.” Protester’s Comments at 4; Protester’s Supp. Comments at 13. The record reflects that the agency noted as a “strength” in IVI’s proposal that it provided “a clear discussion of how the biweekly literature reports will be organized,” and that the “[o]rganization of [the biweekly literature reports appears to be relevant to the aims of the . . . staff.” AR, Tab 3, Initial Evaluation, at 25. The agency also commented while noting the various weaknesses in IVI’s initial proposal that “[b]iweekly literature surveillance memos would be helpful in judging the potential quality of the data output.” Id. at 26.

In response to the protester’s complaint that it “was not informed during discussions that the agency found IVI’s proposed biweekly literature surveillance memoranda problematic,” Protester’s Supp. Comments at 13, the agency explains that it did not raise this evaluated weakness with IVI during discussions given its overall view that “IVI’s proposal with respect to biweekly literature surveillance reports was at least as much a strength as it was a weakness.” Agency Supp. Report at 13. The agency concludes that the concern expressed in its initial evaluation regarding IVI’s biweekly literature surveillance memoranda was not significant, and that under the circumstances, did not have to be raised with IVI during discussions. Id. We agree.

As stated previously, the record reflects that the agency had extensive discussions with IVI regarding its proposal, and that the agency’s concerns regarding this aspect of IVI’s proposal were insignificant given the other evaluated weaknesses in IVI’s proposal, as well as the fact that overall this aspect of IVI’s proposal was found to constitute a strength. Additionally, IVI has not pointed to, and we cannot find, any indication in the evaluation of IVI’s FPR, or source selection documents, that this aspect of IVI’s proposal was considered a weakness or had any effect on either IVI’s overall rating or the source selection. In light of this, and the fact that agency’s are not required to identify other than deficiencies and significant weaknesses in each offeror’s proposal, or to conduct discussions that are all encompassing, we cannot find the agency’s conduct here to be objectionable. See PAI Corp., supra.  (Information Ventures, Inc., B-299361.2; B-299361.3, October 1, 2008) (pdf)

Turning to NAVSEA’s evaluation of the cost proposal submitted by MCT JV, while we find that the agency had reasonable concerns about MCT JV’s allocation of labor hours in its cost proposal, we conclude that the agency’s discussions regarding this matter were not meaningful. Specifically, the record reflects a wide disparity between MCT JV’s proposed allocation of labor hours in its technical proposal and the allocation of labor hours in its cost proposal. As noted above, in its technical proposal MCT JV allocated [Deleted] percent of the labor hours to MHI, [Deleted] percent to Colonna’s, [Deleted] percent to Tecnico, and the remaining [Deleted] percent to other specialty subcontractors. NAVSEA, however, determined that MCT JV’s final cost proposal reflected an allocation of [Deleted] percent of the total labor hours to MHI, [Deleted] percent to Colonna’s, [Deleted] percent to Tecnico, and [Deleted] percent to other subcontractors. The [Deleted] percent allocation to other subcontractors had the effect of significantly reducing MCT JV’s estimated cost since MCT JV proposed a significantly lower labor rate for those subcontractors.

In its protest, MCT JV specifically complains that NAVSEA’s reallocation of its labor hours under item 999-99-999--where the disparity between MCT-JV’s allocation of labor hours between its technical proposal and cost proposal is even greater--was unreasonable. As noted above, under item 999-99-999, MCT JV allocated only [Deleted] percent of the work to its partners and [Deleted] percent to “other subcontractors.” Because item 999-99-999 represented approximately [Deleted] percent of the total projected labor hours used to estimate MCT JV’s total cost, by allocating [Deleted] percent of these labor hours to a category of other subcontractors with a significantly lower labor rate, MCT JV was able to significantly reduce its estimated cost. This extensive reliance on subcontractors for the purpose of calculating its total estimated cost, however, was clearly at odds with MCT JV’s technical proposal, which indicated that MCT JV would allocate a much smaller percentage [Deleted] of the work to specialty subcontractors.

NAVSEA was thus presented with a situation similar to the one it faced in Metro Mach. Corp., B-297879.2, May 3, 2006, 2006 CPD para. 80, where an offeror attempted to reduce its total estimated cost by allocating all of its labor hours for notional work items to its team member with the lowest labor rate, notwithstanding the fact that the entire team would be performing the actual work under the contract. In that case, we held that the Navy’s cost realism evaluation was unreasonable because the Navy accepted the proposed allocation without further question and thus failed to consider the impact of the team members’ higher rates in determining the offeror’s probable cost of performance under the contract. In response to our decision in Metro, NAVSEA included item 999-99-999 to capture the total labor effort of a typical availability when combined with the specific notional work items identified in the RFP, and instructed offerors to ensure that their labor hour allocations for this item were consistent with their proposed technical approaches. AR at 23-24; RFP at 124-25.

While we commend NAVSEA’s efforts to adjust MCT JV’s allocation of labor hours to reflect a labor mix that was more consistent with its technical proposal and MCT JV’s joint venture agreement, and therefore reflective of a more realistic total probable cost for MCT JV, given our conclusion, discussed below, that NAVSEA’s discussions with MCT JV regarding its concerns in this regard were fundamentally flawed, any allegation regarding the propriety of NAVSEA’s reallocation is academic at this juncture.

It is a fundamental precept of negotiated procurements that discussions, when conducted, must be meaningful, that is, sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision. Smiths Detection, Inc., B-298838, B-298838.2, Dec. 22, 2006, 2007 CPD para. 5 at 12; Symplicity Corp., B‑297060, Nov. 8, 2005, 2005 CPD para. 203 at 8. Further, an agency may not mislead an offeror--through the framing of a discussion question or otherwise--into responding in a manner that does not address the agency’s concerns, or misinform the offeror concerning a problem with its proposal or about the government’s requirements. Multimax, Inc., et al., B-298249.6 et al., Oct. 24, 2006, 2006 CPD para. 165 at 12; Metro Mach. Corp., B‑281872 et al., Apr. 22, 1999, 99-1 CPD para. 101 at 6.

Here, the record reflects that with respect to the allocation of labor hours in MCT JV’s cost proposal, NAVSEA asked MCT JV to explain why the allocation was inconsistent with its “resource agreement.” As noted above, MCT JV responded that the resource agreement did not apply to its proposal; rather, it was an agreement among MHI, Colonna’s, and Tecnico relating to a separate proposal submitted by MHI as the prime contractor. The record further reflects that the CAP accepted MCT JV’s response, agreeing that the resource agreement did not apply to the joint venture. Thus, by questioning MCT JV’s allocation of labor hours in its cost proposal solely by reference to a resource agreement that by its terms did not apply to this proposal, NAVSEA never conveyed to MCT JV its actual concern--that the labor hour allocation in the cost proposal appeared to be inconsistent with its technical proposal and joint venture agreement. Accordingly, we find that the agency’s discussions in this regard were misleading and therefore not meaningful.  (MCT JV, B-311245.2; B-311245.4, May 16, 2008) (pdf)

Discussions, when conducted, must be meaningful, that is, they may not be misleading and must identify proposal deficiencies and significant weaknesses that could reasonably be addressed in a manner to materially enhance the offeror’s potential for receiving award. PAI Corp., B-298349, Aug. 18, 2006, 2006 CPD para. 124 at 8. While an agency generally need only lead an offeror into the general areas of concern about its proposal, the agency must impart during discussions sufficient information to afford the offeror a fair and reasonable opportunity to identify and correct deficiencies, excesses, or mistakes in its proposal. Advanced Sci., Inc., B‑259569.3, July 3, 1995, 95-2 CPD para. 52; Aydin Computer and Monitor Div., Aydin Corp., B-249539, Dec. 2, 1992, 93-1 CPD para. 135.

The discussions here were not meaningful. While the record shows that the agency indeed advised JPDT that it could improve its technical score by providing amenities within its offered building, this information was conveyed, not to identify deficiencies in JPDT’s offer, but as part of the agency’s general advice that every offeror received. This general advice amounted to no more than a restatement of the SFO’s evaluation criteria. It did not reasonably apprise JPDT that the agency had found its proposal to contain specific significant weaknesses regarding access to amenities, including the proximity and number of amenities generally, the proximity and number of fast food restaurants, and the variety, quantity, and proximity of table service restaurants. See Integrity Int’l Sec. Sys., Inc., B‑261226, Sept. 1, 1995, 95‑2 CPD para. 98 at 8 (general boilerplate-type reminder that was provided to all offerors during discussions was insufficient to provide notice of protester’s specific deficiency).

Further, while the record also supports the agency’s claim that it informed JPDT that it was unable to verify the existence of two of the identified restaurants and the identified sports club, this very specific information likewise fell short of advising JPDT that its proposed amenities were a concern overall. Indeed, by providing its concerns regarding particular restaurants and a particular fitness facility without indicating that it considered JPDT’s offer to have significant weaknesses regarding the proximity and number of amenities generally, the proximity and number of fast food restaurants, and the variety, quantity, and proximity of table service restaurants, we think GSA led JPDT reasonably to believe that GSA’s concerns were limited to those particular establishments and were not broader in nature. See Spherix, Inc., B‑294572, B-294572.2, Dec. 1, 2004, 2005 CPD para. 3 at 14 (agency failed to conduct meaningful discussions where it determined that offeror’s entire quality control plan was a significant weakness, but identified only two specific aspects of the quality control plan in discussions). We conclude that the agency’s discussions failed to provide JPDT with sufficient information to afford it a fair and reasonable opportunity to identify and correct the evaluated significant weaknesses in its offer. (New Jersey & H Street, LLC, B-311314.3, June 30, 2008) (pdf),  (See Trammell Crow Company, B-311314.2, June 20, 2008)  (pdf)

It is a fundamental precept of negotiated procurements that discussions, when held, must be meaningful; that is, discussions may not mislead offerors and must identify deficiencies and significant weaknesses in each offeror’s proposal that could reasonably be addressed in a manner to materially enhance the offeror’s potential for receiving award. Federal Acquisition Regulation (FAR) sect. 15.306(d); Lockheed Martin Corp., B-293679 et al., May 27, 2004, 2004 CPD para. 115 at 7. Based on our review of the record, and for the reasons set forth below, we find that the agency’s discussions with the protester were meaningful.

To the extent that ICRC argues that the agency was required to consider its proposed costs unacceptable, and thus a proposal deficiency, we note first that the contemporaneous evaluation record indicates that the agency did not consider the matter to be a proposal deficiency. Instead, the evaluators reached a different conclusion. Specifically, the agency conducted a detailed assessment of whether the number of hours identified was reasonably related to ICRC’s approach to the sample task. This assessment led the agency to conclude that the proposed solution to the sample task was an acceptable one, but one that involved a high number of labor hours. As a result, the agency advised ICRC during discussions that the number of labor hours proposed appeared high. Upon receipt of this information, ICRC reduced its overall proposed labor hours, thereby altering its proposed costs.

Our review of the record here has revealed nothing to lead us to conclude that the agency’s assessment was unreasonable. In fact, the cost realism analysis here fulfilled its purpose--i.e., it examined whether the costs proposed by ICRC’s technical approach were consistent with the firm’s likely actual cost of performance. While the protester claims that its own proposed costs were per se unreasonable, given the lower costs proposed by the awardee, it has not shown that the cost realism analysis produced an inaccurate measure of the likely cost of implementing the company’s proposed technical solution. Moreover, the record shows that the contracting officer specifically noted in his source selection decision that the significant variance in evaluated costs was directly attributable to the significant differences in the technical approaches adopted by the competing offerors.

Finally, the protester has not shown that the discussions were misleading, or, in any way, inadequate. Where an offeror’s proposed cost is high in comparison to competitors’ costs, the agency may, but is not required to, inform the offeror that its costs are not as competitive as those of its competitors during discussions. See FAR sections 15.306(d)(3), (e)(3); SOS Interpreting, Ltd., B-287477.2, May 16, 2001, 2001 CPD para. 84 at 3; see also Mechanical Equip. Co., Inc.; Highland Eng’g, Inc.; Etnyre Int’l, Ltd.; Kara Aerospace, Inc., B-292789.2 et al., Dec. 15, 2003, 2004 CPD para. 192 at 18; MarLaw-Arco MFPD Mgmt., B-291875, Apr. 23, 2003, 2003 CPD para. 85 at 6. In sum, since ICRC’s proposed costs were not evaluated as either unreasonable or unrealistic, and since the agency was not obligated to advise the company that its proposed costs were not competitive, we conclude that the agency’s discussions with ICRC were adequate.  (Integrated Concepts & Research Corporation, B-309803, October 15, 2007) (pdf)

Boeing also complains that the agency conducted misleading discussions with Boeing with respect to whether Boeing had fully satisfied the KPP No. 7 objective, Net-Ready Capability. RFP, SRD sect. 3.2.4.1.1; app. A, Net-Ready Capability KPP, at 3. The KPP No. 7 objective provides that the offeror’s “system should be capable of accomplishing all operational activities identified in Table 5.” RFP, SRD, app. A, at 4. Table 5 of the appendix identified a number of information exchange requirements. Id. at 15-25.

Specifically, Boeing complains that at its mid-term briefing it was informed of an uncertainty regarding the firm’s net ready capability, see AR, Tab 129, Mid-Term Briefing to Boeing, at 77, and that ultimately the firm responded to an EN concerning the firm’s System Requirements Matrix and System Specification with respect to complying with the SRD requirements for KPP No. 7. See AR, Tab 210, Boeing Response to EN BOE-MC1-041. Boeing believed that its EN response charted how its proposal met the KPP No. 7 thresholds and objective in total, see Boeing’s Comments at 29, and during the firm’s Pre-Final Proposal Revision Briefing the Air Force informed Boeing that the firm “met” both the KPP thresholds and the objective requirements for KPP No. 7. See AR, Tab 135, Boeing’s Pre‑Final Proposal Revision Briefing, at 57. Accordingly, Boeing made no further revisions to its proposal in this area. Boeing’s Second Supplemental Protest at 53. The Air Force, however, changed its evaluation rating of this aspect of Boeing’s proposal to “partially met” the KPP objective (the same rating that Northrop Grumman received) without further notice to Boeing. Boeing contends that the Air Force’s misleading discussions prevented the firm from addressing the agency’s concerns with respect to this objective.

The Air Force does not dispute that it informed Boeing during discussions that the firm had satisfied all of the thresholds and the objective under KPP No. 7, but contends that at the time it later determined that Boeing had not fully satisfied this objective, discussions had already been closed. See Second Supplemental COS at 77. The agency argues that, in any event, it was under no obligation to inform Boeing of the changed evaluation rating associated with this objective because the objective “constituted trade space,” the absence of which would not be a deficiency or weakness. Agency Memorandum of Law at 131.

We do not agree with the Air Force that the agency was permitted, after informing Boeing that its proposal fully met this objective, to change this evaluation conclusion without affording Boeing the opportunity to satisfy this requirement. It is a fundamental precept of negotiated procurements that discussions, when conducted, must be meaningful, equitable, and not misleading. See 10 U.S.C. sect. 2305(b)(4)(A)(i); AT&T Corp., B-299542.3, B‑299542.4, Nov. 16, 2007, 2008 CPD para. 65 at 6. Here, by informing Boeing prior to the submission of the firm’s final proposal revision that it satisfied all aspects of KPP No. 7, the Air Force deprived the firm of the opportunity to further address these particular requirements. See AT&T Corp., supra, at 12; see also Bank of Am., B‑287608, B-287608.2, July 26, 2001, 2001 CPD para. 137 at 13.

In contrast, the Air Force informed Northrop Grumman prior to the submission of that firm’s final proposal revision that it had only partially met this KPP objective, which permitted that firm the opportunity to further address the KPP objective requirements. See AR, Tab 205, Northrop Grumman’s Pre-Final Proposal Revision Briefing, at 61. Moreover, Boeing submitted its final submission addressing this KPP objective several months prior to the pre-FPR briefing, and, as indicated above, the agency actually reopened discussions on other subjects after submission of the FPRs and obtained revised FPRs. Boeing’s Protest at 66; Boeing’s Second Supplemental Protest at 53. In short, the Air Force misled Boeing when the agency advised the firm that it met this objective, but later determined that Boeing did not fully meet this objective, and did not reopen discussions with Boeing on this issue. The Air Force also treated the firms unequally when it provided Northrop Grumman, but not Boeing, with continued discussions on this same objective. It is axiomatic that procuring agencies may not conduct discussions in a manner that favors one offeror over another. See FAR sect. 15.306(e)((1); Chemonics Int’l, Inc., B-282555, July 23, 1999, 99-2 CPD para. 61 at 8-9.

We also find a reasonable possibility that Boeing was prejudiced by the Air Force’s misleading and unequal discussions, given the greater weight that KPPs were supposed to receive in the agency’s evaluation. In this regard, if Boeing had been evaluated as fully satisfying this KPP objective, which was the only KPP objective in the operations utility area, it could well have been considered to be superior in this area to Northrop Grumman, which was evaluated as only partially satisfying this KPP objective.  (The Boeing Company, B-311344; B-311344.3; B-311344.4; B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008) (pdf)

The protester next argues that the EPA failed to conduct meaningful discussions regarding several issues. The record, however, does not support the protester’s allegations with regard to any of the areas where it argues that the agency failed to provide meaningful discussions. For example, IBM argues that it was misled during discussions regarding page limitations. Specifically, IBM claims that the agency advised IBM that Volume 3 of its proposal exceeded the page limitation, but orally advised that IBM could include additional pages regarding its work breakdown structure (WBS) and integrated master plan (IMP) in Volume 5, rather than Volume 3 of its proposal--despite the fact that the RFP expressly required that these matters be addressed in Volume 3. IBM contends that it relied on the agency’s advice and placed those items in Volume 5, which, unlike Volume 3, had no page limitations. In evaluating IBM’s proposal, the agency did not provide the WBS and IMS documents to the evaluators because they were not contained in Volume 3; the agency evaluators concluded that the absence of a detailed WBS and IMP constituted a weakness in the proposal. AR, Tab 41, SSD at 23.  The protester argues that the agency’s discussions here were misleading, and therefore not consistent with the agency’s obligation to ensure that discussions are meaningful. See L-3 Comm. Corp., BT Fuze Prods. Div., B-299227, B-299227.2, Mar. 14, 2007, 2007 CPD para. __ at 18-19. The agency denies making such a statement, and notes that such instructions would have been contrary to the RFP instructions. Because the allegedly misleading agency statements would have resulted in a material deviation from the solicitation, namely the page limitation, the protester could not reasonably rely on such oral advice--even if the record demonstrated that the agency made such a statement, which it does not. S3 LTD, B-287019.2 et al., Sept. 14, 2001, 2001 CPD para. 165 at 6. Offerors cannot rely on oral modifications to an RFP which are inconsistent with its written terms, absent a written amendment to the RFP or written confirmation of the oral modification. Id. This clear principle provides fairness to all parties by ensuring that competitions are conducted under equal terms, and protects both protesters and agencies from the kind of credibility disputes raised here, as well as protecting the integrity of the procurement process overall. Id. (IBM Corporation, B-299504; B-299504.2, June 4, 2007) (pdf)

AT&T protests that the agency failed to adequately raise the concerns it had regarding AT&T’s staffing plan during the discussions held with the offeror. AT&T also contends that the agency’s discussions were misleading, because SSA identified one narrow area of the offeror’s staffing plan as lacking sufficient detail and failed to inform AT&T of the true nature and breadth of the evaluated weaknesses here. The protester argues that the lack of meaningful discussions was prejudicial to it, since the perceived weaknesses in AT&T’s staffing plan became a major factor in the agency’s subsequent best value tradeoff determination. Protest, Sept. 20, 2007, at 44-51.

When discussions are conducted, they must at a minimum identify deficiencies and significant weaknesses in each competitive-range offeror’s proposal. Federal Acquisition Regulation (FAR) sect. 15.306(d)(3); Multimax, Inc., et al., B-298249.6 et al., Oct. 24, 2006, 2006 CPD para. 165 at 12; PAI Corp., B-298349, Aug. 18, 2006, 2006 CPD para. 124 at 8. Discussions must be “meaningful,” that is, sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision. Smiths Detection, Inc., B-298838, B-298838.2, Dec. 22, 2006, 2007 CPD para. 5 at 12; Symplicity Corp., B-297060, Nov. 8, 2005, 2005 CPD para. 203 at 8. For example, discussions are not meaningful where the agency fails to apprise an offeror that its staffing levels are viewed as unreasonably low. Professional Servs. Group, Inc., B-274289.2, Dec. 19, 1996, 97-1 CPD para. 54 at 4. Further, an agency may not mislead an offeror--through the framing of a discussion question or a response to a question--into responding in a manner that does not address the agency’s concerns, or misinform the offeror concerning a problem with its proposal or about the government’s requirements. Multimax, Inc., et al., supra; Metro Mach. Corp., B-281872 et al., Apr. 22, 1999, 99-1 CPD para. 101 at 6.

(sections deleted)

In its report to our Office, SSA argues that its actions here were proper for the following reasons: (1) the weaknesses found by the agency in AT&T’s staffing plan were not significant ones, so no discussions were in fact required here; (2) the agency nevertheless conducted meaningful discussions with AT&T regarding its staffing plan; and (3) the agency was not required to re-open discussions with AT&T simply because AT&T’s staffing plan subsequently became a discriminator for source selection purposes. AR, Oct. 1, 2007, at 1-5, AR, Nov. 2, 2007, at 1-6.  As discussed in detail below, we conclude that the agency’s actions were improper because: (1) the agency’s initial technical evaluation regarded AT&T’s staffing plan as a significant weakness; (2) the agency failed to conduct meaningful discussions with AT&T regarding this significant weakness; and (3) the agency’s substantial reliance on AT&T’s staffing plan in its best value tradeoff determination clearly demonstrates that the lack of meaningful discussions here was prejudicial to AT&T.


As set forth above, the record reflects that the TET’s initial evaluation of proposals identified two separate concerns with AT&T’s proposed staffing plan. First, the evaluators found that AT&T’s staffing appeared to be at minimal levels in relation to the RFP’s requirements. Second, the TET also believed that AT&T’s entire staffing plan lacked sufficient detail, as exemplified by the offeror’s staffing for the VNOC and help-desk personnel at the Durham and NCC locations. Moreover, the agency evaluators considered AT&T’s staffing plan to be a significant weakness, as evidenced by the initial evaluation report. Specifically, in addition to stating that “[t]he proposed staffing at current levels would be considered inconsistent with the proposal implementation schedule without a clear understanding of the support personnel,” the TET expressly found that “[t]he risk of implementing a minimal staffing plan as [AT&T] presented could jeopardize the success of the project.” AR, Tab 13, Initial Technical Evaluation Report, app. 5, Evaluation of Proposed Project Lifecycle Staffing Plans, at 7. We think that when an agency finds, as it did here, that the risk associated with a given aspect of an offeror’s proposal may jeopardize the overall success of the project, this represents a significant weakness. See FAR sect. 15.001 (a “significant weakness” in an offeror’s proposal is a flaw that appreciably increases the risk of unsuccessful contract performance). Given this finding regarding the risk associated with AT&T’s staffing plan, the fact that SSA did not expressly characterize the staffing plan as a significant weakness is not controlling. See Alliant Techsystems, Inc.; Olin Corp., B-260215.4, B-260215.5, Aug. 4, 1995, 95-2 CPD para. 79 at 7-8. Accordingly, we conclude that the agency was required to conduct discussions with AT&T regarding its staffing plan.  Further, while the record shows that SSA did conduct discussions with AT&T regarding its staffing plan, we think that these discussions were not meaningful. As set forth above, the agency provided AT&T with one discussion item regarding its staffing plan. This item informed AT&T only of SSA’s concern that the staffing plan lacked sufficient detail (“the personnel staffing charts do not provide sufficient information to determine that the staffing levels are consistent with AT&T’s proposed programmatic methods,” AR, Tab 15, Discussions with AT&T, at 13-14), and completely failed to mention the agency’s equal, if not greater, independent concern that AT&T’s staffing levels were considered too low. An agency’s belief that an offeror’s staffing levels are too low is materially different from a concern that a staffing plan lacks sufficient detail; the fact that both involve staffing is not sufficient to conclude that the agency here provided meaningful notice to AT&T as to the total scope of its concern. See Andrew M. Slovak, B-253275.2, Nov. 2, 1993, 93-2 CPD para. 263 at 4 (discussions limited to a food menu’s item cycle did not put offeror on notice of the agency’s separate concern that the menu also failed to provide for healthy food items).  Moreover, the discussion item here specified only one particular area of AT&T’s staffing plan as lacking sufficient detail (“[s]pecifically, staffing levels for VNOC and Help Desk problem intake,” id. at 14), when the agency’s real concern was that AT&T’s entire staffing plan lacked sufficient information. See Spherix, Inc., B-294572, B-294572.2, Dec. 1, 2004, 2005 CPD para. 3 at 14 (agency failed to conduct meaningful discussions when it determined that offeror’s entire quality control plan was a significant weakness, but identified only two specific aspects of the quality control plan in discussions). In our view, not only was AT&T inadequately advised of other areas of its staffing plan that lacked sufficient detail, but the agency’s failure to identify the scope of its concern may have misled the offeror into believing that those areas did not require further adjustment.[18] Also, unlike other identified management approach weaknesses, the discussions here did not characterize AT&T’s staffing plan as a significant weakness, or inform the offeror of the agency’s belief that the risk associated with AT&T’s minimal staffing plan could jeopardize the success of the project. See AR, Tab 15, Agency Discussions with AT&T, at 8, 13-14. Under the circumstances here, we cannot conclude that AT&T, reviewing the agency’s discussions in conjunction with the material that it had submitted with its proposal, reasonably could have recognized the total scope of the agency’s concerns regarding both the staffing levels and the lack of detail in AT&T’s entire staffing plan.  The record also reflects that AT&T was prejudiced by the lack of meaningful discussions regarding its staffing plan. In its final evaluation report, the TET found that AT&T’s staffing levels, while higher than those proposed originally, were still “minimal and conservative,” and the lack of detail in AT&T’s staffing plan (in areas other than VNOC and Help desk, which AT&T’s FPR specifically addressed) represented potential performance risks if AT&T was unable to staff appropriately. Id., Tab 33, Final Technical Evaluation Report, at 9, app. II, Evaluation of Proposal Project Lifecycle Staffing Plans, at 6. The agency’s subsequent best value tradeoff determination then went further, and characterized AT&T’s staffing levels as the offeror’s “principal weakness and area of risk,” since its staffing levels were “so low as to potentially threaten the ability of the vendor to successfully deliver the proposed solution in accordance with the Government’s delivery schedule and to support the TSRP user community across the contract term in a fully satisfactory manner.” Id., Tab 35, Best Value Tradeoff Memorandum, at 22. Quite simply, AT&T’s staffing plan, which the agency considered to be a significant weakness from the time of the initial evaluation, was a material factor in the agency’s source selection determination.  (AT&T Corp., B-299542.3; B-299542.4, November 16, 2007) (pdf)

DRS maintains that the agency engaged in unequal discussions, specifically, that it was given more exacting questions and was required to provide far more detail in its responses than Onan. In effect, DRS is arguing that it was given a greater level of detail in its discussions than was given to Onan. We fail to see how providing more detailed discussions to DRS was improper or prejudicial to DRS. Discussions need not be identical; rather, discussions are to be tailored to each offeror’s proposal. Federal Acquisition Regulation sect. 15.306(d)(1), (e)(1); PharmChem, Inc., B-291725.3 et al., July 22, 2003, 2003 CPD para. 148 at 6. We find no impropriety here.  DRS also asserts that its discussions were misleading. As noted, the agency relaxed the solicitation’s requirements relating to the fuel efficiency standards for the generator sets. The agency advised both offerors of its intention to relax the specifications, and requested comments relating to the revisions, by e-mail dated October 18, 2006. AR, exh. 30. DRS commented by letter dated October 23, stating that, in its view, the changes were unnecessary because it could meet the original, more stringent, standards. AR, exh. 31. Notwithstanding DRS’s position, the agency revised the specifications on November 1. AR, exh. 32. Thereafter, by letter of November 2, DRS requested that the Army engage in discussions relating to the deficiencies identified in its original phase II and III proposal. In response, the agency provided DRS with two rounds of discussion questions, first by letter dated November 3, and subsequently by letter dated January 16, 2007. In both letters, the agency provided DRS with detailed questions that had been developed by the evaluators after their review of DRS’s initial proposal, including questions relating to DRS’s ability to meet the original, more stringent, fuel efficiency standards. (Engineered Electric Company d/b/a/ DRS Fermont, B-295126.5; B-295126.6,  December 7, 2007) (pdf)

Discussions, when conducted, must be meaningful, that is, they may not be misleading and must identify proposal deficiencies and significant weaknesses that could reasonably be addressed in a manner to materially enhance the offeror’s potential for receiving award. PAI Corp., B‑298349, Aug. 18, 2006, 2006 CPD para. 124 at 8. However, agencies are not required to “spoon feed” an offeror during discussions; they need only lead offerors into the areas of their proposal that require amplification. LaBarge Elecs., B‑266210, Feb. 9, 1996, 96-1 CPD para. 58 at 6.  The discussions here were unobjectionable. As noted above, the discussion letter specifically advised Blane that its delivery plan was difficult to read and follow. In this regard, Blane’s initial delivery plan consisted of a chart containing various item descriptions (down the left hand side of the chart), amounts (throughout the chart, including various blank spaces), and country names (down the right hand side of the chart), formatted in such a manner that the columns contained no headings--thus making it unclear to what the columns referred--and the rows contained amounts that were not clearly on the same line, making it unclear which amount referred to which item description.[2] Since the nature of the agency’s difficulty with the chart was, simply, that it was difficult to read and follow, the discussion letter was sufficient to lead Blane into the area of its proposal that required improvement or further clarification. Blane asserts that the agency should have reviewed its entire proposal, including the quantities contained in a “transportation matrix,” and then brought any discrepancies to its attention during discussions. Protester’s Comments at 3. However, while the protester may believe that it would have been better able to address the deficiencies in its delivery plan if the agency had approached discussions as it suggests, the agency was not required to do so; again, the agency was only required to lead the protester into the area of concern. Moreover, given the lack of clarity in the chart, and the agency’s resultant inability to determine precisely what Blane intended, we think the agency was not in a position to provide more information in its discussion letter; certainly, it was not required to provide more detailed questions based on its speculation as to what Blane may have intended.  (Blane International Group, Inc., B-310329, December 13, 2007) (pdf)

Cornell next argues that, because the agency had “serious concerns about the location offered by Cornell from the time that the site visit was performed,” Comments at 7, the agency was required by the FAR to raise those concerns in discussions. When discussions are held they must at least address deficiencies and significant weaknesses in the proposals. FAR sect. 15.306(d)(3). However, the agency is not required to discuss every area where a proposal could be improved, and the scope and extent of discussions is a matter within the contracting officer’s discretion. Id. In this regard, we review the adequacy of discussions to ensure that agencies point out weaknesses that, unless corrected, would prevent an offeror from having a reasonable chance of award. Brown & Root, Inc. and Perini Corp., a joint venture, B-270505.2, B-270505.3, Sept. 12, 1996, 96-2 CPD para. 143 at 6.  As discussed above, the record demonstrates that Cornell’s site location was never considered to be a significant weakness or deficiency, and never prevented Cornell from having a reasonable chance for award. Nowhere in the SSEB working papers, the SSEB consensus papers, the technical/management evaluation memorandum, or the SSD was the weakness of Cornell’s site location characterized as significant or as a deficiency. [2] Further, Cornell’s proposed site location was found to meet the requirements of the solicitation at every stage of the evaluation. Because there is no evidence to suggest that Cornell’s site location ever kept its proposal from being rated acceptable under the site location or technical/management factor, or otherwise prevented Cornell from having a reasonable chance of receiving award, the agency was not required to raise the issue in discussions. See Northrop Grumman Info. Tech. Inc., B-290080 et. al., June 10, 2002, 2002 CPD para. 136 at 6; Brown & Root, Inc. and Perini Corp., a joint venture, supra.  (Cornell Companies, Inc., B-310548, December 3, 2007)  (pdf)

We recognize, as PADCO points out, that the TEC did in fact describe the level of effort feature of its proposal as a “weakness.” Contrary to PADCO’s argument, however, discussions are not inadequate simply because a weakness, which was not addressed during discussions, subsequently becomes a determinative factor in choosing between two closely ranked proposals, as was the case here. See, e.g., Gracon Corp., B-293009 et al., Jan. 14, 2004, 2004 CPD para. 58 at 3; Hines Chicago Inv., LLC, B‑292984, Dec. 17, 2003, 2004 CPD para. 5 at 3-4. Further, regarding PADCO’s contention that the weakness must have been significant because its final ratings were decreased, the agency reports, and the record confirms, that this weakness was not viewed by the agency as significant. At PADCO’s debriefing, USAID expressly stated that it did not consider the above weakness to be significant. Consistent with this statement, the evaluation documents show that none of the evaluation comments characterize PADCO’s distribution of its level of effort as a “significant weakness,” a term the agency had used to describe other weaknesses it identified in its evaluation. See, e.g., AR, Tab 55, Competitive Range Determination, at 9 (discussing a “significant weakness” in the initial proposal submitted by The Services Group). While the distribution of PADCO’s level of effort presented a “risk,” as indicated by the TEC, there is nothing to suggest that it created an unacceptable level of risk or “appreciably” increased the risk of PADCO’s proposal. See FAR sect. 15.001 (defining a “weakness” as “a flaw . . . that increases the risk of unsuccessful contract performance” and a “significant weakness” as “a flaw that appreciably increases the risk of unsuccessful contract performance”). Ultimately, under both the management and staffing plan subfactor and the overall technical approach factor, PADCO’s proposal received a rating of “acceptable,” which, as noted above, was defined by the RFP as a proposal which meets all solicitation requirements, is “complete” and “comprehensive,” and exemplifies an understanding of the tasks required. RFP at M-2. (Planning And Development Collaborative International, B-299041, January 24, 2007) (pdf)

It is a fundamental precept of negotiated procurements that discussions, when conducted, must be meaningful; that is, discussions must identify deficiencies and significant weaknesses in each offeror’s proposal that could reasonably be addressed so as to materially enhance the offeror’s potential for receiving award. PAI Corp., B‑298349, Aug. 18, 2006, 2006 CPD para. 124 at 8; Spherix, Inc., B-294572, B-294572.2, Dec. 1, 2004, 2005 CPD para. 3 at 13. An agency fails to conduct meaningful discussions where it fails to apprise an offeror that its prices were viewed as unreasonably high. Price Waterhouse, B-220049, Jan. 16, 1986, 86-1 CPD para. 54 at 6-7. Further, an agency may not mislead an offeror--through the framing of a discussion question or a response to a question--into responding in a manner that does not address the agency’s concerns; misinform the offeror concerning a problem with its proposal; or misinform the offeror about the government’s requirements. Metro Mach. Corp., B‑281872 et al., Apr. 22, 1999, 99-1 CPD para. 101 at 6. In conducting exchanges with offerors, agency personnel also may not “engage in conduct that . . . favors one offeror over another,” FAR sect. 15.306(e)(1); in particular, agencies may not engage in what amounts to disparate treatment of the competing offerors. Front Line Apparel Group, B-295989, June 1, 2005, 2005 CPD para. 116 at 3-4. Here, in the discussions questions issued to NGI and Multimax (as well as to other offerors such as BAE) questioning the proposed rates for particular labor categories as significantly overstated, the agency advised as follows: “Your proposed labor rates are significantly higher than the Independent Government Cost Estimate (IGCE) rates for the following labor categories . . . . The offeror should consider revising the price proposal. If you do not revise the identified rates, please provide an explanation for the basis of the rate.” See IFN¹ to NGI no. 51, Nov. 3, 2005; IFN to NGI no. 298, Jan. 6, 2006; IFN to BAE no. 50, Nov. 3, 2005; IFN to BAE no. 297, Jan. 6, 2006; IFN to Multimax no. 49, Nov. 11, 2006. Thus, there was no reference in the IFNs to the agency’s reliance on the two-standard-deviation calculation, but instead only to the proposed labor rate being “significantly higher than” the IGCE as the basis for the IFN. The Army’s price discussions with NGI and Multimax (as well as with BAE) were inadequate because, due to the agency’s reliance on the two-standard-deviation formula to identify “outlier” rates--and the broad range of acceptable prices resulting from the formula--it failed to bring to the protesters’ attention numerous rates that reasonably should have been considered significantly overstated. In this regard, the record shows that proposed rates that were not questioned in the IFNs could actually exceed the IGCE rates by a greater percentage than the rates that were identified. Thus, for example, although NGI’s rate for [REDACTED] at the contractor site was [REDACTED] percent higher than the IGCE rate, this rate was not identified in an IFN because it was within the wide range of acceptable prices established under the formula. At the same time, although NGI’s proposed rate for [REDACTED] at the contractor site was only [REDACTED] percent higher than the IGCE rate, because it fell outside the range established by the two-standard-deviation test, NGI was advised that its rate was “significantly higher” than the IGCE. There simply is no reasonable basis for bringing the former rate to the offeror’s attention, but not the latter. The above example is not an isolated one. NGI calculates that [REDACTED] of its proposed labor rates that were not identified during price discussions were similar to this example--they exceeded the corresponding IGCE rate by a higher percentage than one or more of the rates identified in its price IFNs. NGI notes further that [REDACTED] of its unquestioned rates exceeded the IGCE rates by a greater percentage than did some rates that were questioned in other offerors’ IFNs. Likewise, the record indicates that Multimax was not advised that its proposed rates for a significant number of labor categories were higher than the corresponding IGCE rates, despite the fact that these proposed rates deviated from the IGCE by a greater percentage than rates that were identified in discussions with Multimax or other offerors. Multimax calculates that [REDACTED] of its unquestioned rates (only [REDACTED] of its rates were identified in IFNs) exceeded the IGCE rates by a greater percentage than the rates that were questioned in other offerors’ IFNs (during initial price discussions). We conclude that not only were offerors not adequately advised of all of their significantly overstated rates, but the agency’s failure to identify the additional rates actually misled the offerors into believing that those rates did not require further adjustment. In these circumstances, we conclude that the agency failed to conduct meaningful discussions with the protesters.  (Multimax, Inc.; NCI Information Systems, Inc.; BAE Systems, B-298249.6, B-298249.7, B-298249.8, B-298249.9, B-298249.10,October 24, 2006) (pdf)

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¹ Items for negotiation (IFN)

Where contracting agencies conduct discussions with offerors whose proposals are within the competitive range, the discussions must be meaningful. Professional Servs. Group, Inc., B-274289.2, Dec. 19, 1996, 97-1 CPD para. 54 at 3. Discussions cannot be meaningful if an offeror is not advised of the weaknesses, deficiencies, or excesses in its proposal that must be addressed in order for the offeror to be in line for award. Mechanical Contractors, S.A., B-277916.2, Mar. 4, 1998, 98-1 CPD para. 68 at 4. Here, we think that the agency’s failure to raise its concerns regarding the achievability of ALF’s proposed delivery schedule constituted a failure to conduct meaningful discussions because the protester might well have been determined to be in line for award if it had been able to validate its proposed schedule. Further, we do not think that the agency was relieved of its obligation to conduct discussions due to the circumstance that it did not learn of the information giving rise to its concerns until after discussions had concluded. If, after discussions are completed, the agency identifies concerns pertaining to the proposal as it was prior to discussions that would have had to be raised if they had been identified before discussions were held, the agency is required to reopen discussions in order to raise the concerns with the offerors. See DevTech Sys., Inc., B-284860.2, Dec. 20, 2000, 2001 CPD para. 11 at 4. The key fact is that the concerns (while identified after discussions have been closed) relate to the proposal as it was prior to discussions. Id. (Al Long Ford, B-297807, April 12, 2006) (pdf)

IAP also complains that the Navy improperly failed to inform IAP that its proposed price was too high. In this regard, IAP notes that its proposed price was substantially higher than both the government estimate (by 34 percent) and EJB’s price (by 21 percent) for the definite-quantity elements of the RFP, and 39 percent higher than EJB’s price for the ID/IQ elements.  Where an offeror’s price is high in comparison to competitors’ prices or the government estimate, the agency may, but is not required to, address the matter during discussions. Grove Resource Solutions, Inc., B-296228, B-296228.2, July 1, 2005, 2005 CPD para. 133 at 5 n.5. Thus, if an offeror’s price is not so high as to be unreasonable and unacceptable for contract award, the agency reasonably may conduct discussions without advising the offeror that its prices are not competitive. Id.; cf. Creative Info. Tech., Inc., B-293073.10, Mar. 16, 2005, 2005 CPD para. 110 at 7 (price nearly 7 times the government estimate and 4.6 and 9 times competitors’ prices is unreasonable on its face). Here, the agency determined that IAP’s overall price was reasonable for the work to be performed and for what IAP proposed, SSB Report at 19, and the price difference, even as calculated by IAP, is not of a magnitude that suggests that IAP’s price was unreasonable on its face. See Grove Resource Solutions, Inc., supra (agency not required to discuss protester’s high price where awardee’s price was about 40 percent lower). Under these circumstances, the Navy was not required to raise the matter of IAP’s higher price during discussions. (IAP World Services, Inc., B-297084, November 1, 2005) (pdf)

We find that the record does not establish a reasonable basis for the agency’s assessment of a significant weakness with respect to Cogent’s proposed scanner. First, as the record shows and the Army now admits (see Agency’s Hearing Comments at 13-14), the evaluators failed to recognize that Cogent had proposed a different scanner in its revised proposals to satisfy the solicitation requirements--this failure itself renders unreasonable the agency’s evaluation judgment concerning Cogent’s proposed scanner. Despite the error, the Army’s evaluator nevertheless asserted that the weakness was based upon Cogent’s failure to explain how it could offer a compliant scanner when the firm had asserted in its initial proposal and earlier protest that no such scanner existed. TR at 122-24. However, even assuming this latter evaluation judgment was reasonable, the Army failed to provide Cogent with meaningful discussions with respect to this scanner. The FAR requires at a minimum that contracting officers discuss with each firm being considered for award “deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond.” FAR sect. 15.306(d)(3). Here, the Army twice provided Cogent with written discussions after it proposed the Epson Perfection 4870 scanner as a compliant product, but never identified its concern that Cogent had not explained how it was now able to offer a compliant product, even though the evaluators regarded this as a significant weakness. In short, we find no reasonable basis in the record for the agency’s judgment that Cogent’s proposed scanner was a significant proposal weakness. We also find that, in any event, the Army failed to conduct meaningful discussions with Cogent with respect to this aspect of the agency’s evaluation. (Cogent Systems, Inc., B-295990.4; B-295990.5, October 6, 2005) (pdf)

When contracting agencies conduct discussions with offerors in the competitive range, such discussions must be meaningful. Kaneohe Gen. Servs., Inc., B-293097.2, Feb. 2, 2004, 2004 CPD paragraph 50 at 3. In order for discussions to be meaningful, agencies must advise an offeror of weaknesses, excesses, or deficiencies in its proposal, correction of which would be necessary for the offeror to have a reasonable chance of being selected for award. In this regard, the actual content and extent of discussions are matters of judgment primarily for determination by the agency involved, and we generally limit our review of the agency's judgments to a determination of whether they are reasonable. J.G. Van Dyke & Assocs. , B-248981, B-248981.2, Oct. 14, 1992, 92-2 CPD paragraph 245 at 4. Specifically, with regard to the adequacy of discussions of price, an agency generally does not have an obligation to tell an offeror that its price is high, relative to other offers, unless the government believes the price is unreasonable. State Mgmt. Servs., Inc.; Madison Servs., Inc., B-255528.6 et al. , Jan. 18, 1995, 95-1 CPD paragraph 25 at 5-6; Marwais Steel Co., B-254242.2, B-254242.3, May 3, 1994, 94-1 CPD paragraph 291 at 6. The issue here is whether the Army's discussions with CITI were meaningful where the Army advised CITI merely that its total price appeared "overstated," given the unique circumstances of this case--specifically, the extraordinary disparity between CITI's proposed level of effort and price as compared to the government estimate as well as the level of effort and prices of the other offerors in the competitive range. We conclude that they were not. In addressing this issue, we recognize that it is within the agency's discretion to decide whether to inform an offeror that its price is considered too high and to reveal the results of the analysis supporting that conclusion or to indicate to all offerors the cost or price that the government's price analysis, market research, and other reviews have identified as reasonable. See FAR 15.306(e). The question is whether the agency's judgment in this instance was reasonable. While an agency is not required to "spoon-feed" an offeror during discussions as to each and every item that could be revised to improve its proposal, see ITT Fed. Sys. Int'l Corp. , B-285176.4, B-285176.5, Jan. 9, 2001, 2001 CPD paragraph 45 at 6, agencies must impart sufficient information to afford offerors a fair and reasonable opportunity to identify and correct deficiencies, excesses or mistakes in their proposals. Matrix Int'l Logistics, Inc. , B-272388.2, Dec. 9, 1996, 97-2 CPD paragraph 89 at 9. In this case, we conclude that CITI could not be reasonably expected to have understood the true nature and magnitude of the agency's concern with its proposal based upon the information provided by the Army during its discussions with CITI, thus rendering those discussions essentially meaningless.  (Creative Information Technology, Inc., B-293073.10, March 16, 2005) (pdf)

In order for discussions to be meaningful, agencies must, at a minimum, point out to competing firms deficiencies, significant weaknesses, and adverse past performance information to which the firm has not previously had an opportunity to respond. FAR 15.306(d)(3). The FAR also encourages contracting officers to discuss other aspects of a firm's proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal's potential for award. Id. Discussions must be meaningful, equitable and not misleading; discussions cannot be meaningful unless a firm is led into those weaknesses, excesses or deficiencies that must be addressed in order for it to have a reasonable chance for award. TDS, Inc., supra, at 6-7. LMC asserts that the agency identified 11 weaknesses in its proposal that were based on language from the earlier, pre-corrective action, version of its proposal. LMC maintains that the agency was required to discuss these 11 weaknesses with the firm pursuant to our decision in DevTech Sys., Inc. , B-284860.2, Dec. 20, 2000, 2001 CPD 11 in which we held that, where an agency identifies new weaknesses in a proposal during a reevaluation of that proposal in an acquisition where discussions have previously occurred, it is required to discuss those new weaknesses with the offeror. The agency responds that, with respect to 6 of the 11 alleged weaknesses arising from proposal language that predated the current FPRs, the agency did not assign a weakness to the LMC proposal during its evaluation, and thus was not required to raise the matter in discussions. Agency Legal Memorandum, Sept. 30, 2004, at 11833. While the agency is correct that the six weaknesses to which LMC refers were not identified as weaknesses in the technical evaluation report on LMC's proposal, all six are specifically identified in the agency's final evaluation and tradeoff analysis report as weaknesses and as bases for distinguishing between the LMC and EDS proposals. AR, exh. 116, atviix,xiv. Given that they ultimately were listed in the best value analysis--they related to 6 of the agency's 10 identified best value items--and that they contributed in some manner to the proposal's receiving an overall marginal/high risk rating, we do not think the fact that they were captured in the best value determination, rather than the technical evaluation report, provided a basis for concluding that these issues were not significant weaknesses. Further, while it is not clear how significant they were, given that they played a large part in the best value determination--and therefore presumably were among the most important reasons for downgrading LMC's proposal--absent some clear showing by the agency that they were not significant, since they were based on information in LMC's original proposal, and the agency had not previously discussed the issues with LMC, it was obliged to do so. DevTech Sys., Inc. , supra , at 4-5. (Lockheed Martin Simulation, Training & Support, B-292836.8; B-292836.9; B-292836.10, November 24, 2004) (pdf) 

We do not agree with CHS that the agency's referring to staffing and labor hours interchangeably was misleading. Rather, we think the agency's references to "labor hours for full time employees" (oral discussions) and the adequacy of CHS's proposed EAP staff (written discussions) both reasonably could be interpreted in only one way: the agency was concerned that CHS had not proposed enough staff to perform adequately. The agency's questions were adequate to bring this concern to CHS's attention, and therefore were meaningful.  (Comprehensive Health Services, Inc., B-294608, December 1, 2004) (pdf)

As described above, the SSET identified Spherix's marketing approach, including a lack of projected growth, to be a "significant weakness." See AR, Supplemental Documents, Source Selection Briefing Slides, at 2985. Spherix's approach to the marketing plan requirement was not discussed with the protester, and therefore we conclude that the agency failed to conduct meaningful discussions with the firm in this respect. We also find that the agency did not conduct meaningful discussions with Spherix with respect to its proposed quality control plan, which was also determined to be a significant weakness. The RFP provided for the evaluation of offerors' draft comprehensive quality control plan "to include a Performance Work Summary (PRS) with Standards, Acceptable Quality Level (AQL), and Incentives." RFP M, at 333. Spherix's initial proposal described its proposed quality control plan, see AR, Tab103, Spherix Initial Proposal, at 2139-214, which the SSET evaluated to be a weakness, stating that Spherix's "overall quality control plan . . . is not a complete approach . . . Vendor must amplify a more thorough approach to quality control ensuring that [DELETED] are addressed." See AR, Supplemental Documents, Final SSET Evaluation Worksheets for Spherix, at 2997. The SSET also evaluated Spherix's proposed approach to the PRS and AQL requirements to be weaknesses. Id. In its discussions with Spherix, the agency addressed only the firm's proposed approach to the PRS and AQL requirements, and Spherix's proposal revisions sufficiently addressed those aspects of its proposal such that the agency no longer identified them as proposal weaknesses. Id. The agency did not otherwise address Spherix's quality control plan during discussions. Id. In its final evaluation, the SSET noted that Spherix had not changed its proposal with respect to its proposed quality control plan, and stated that discussions were not conducted on this weakness because Spherix "had a plan[; the] plan was simply weak." Id. Ultimately, this aspect of Spherix's proposal was identified by the SSET identified to be a "significant weakness." See AR, Supplemental Documents, Source Selection Briefing Slides, at2985. We therefore find that the agency failed to conduct meaningful discussions with Spherix with respect to its proposed quality control plan. We also find that Spherix did not receive meaningful discussions with respect to its proposed transition period staffing, which was evaluated as a part of the proposed project implementation plan under the management approach factor. See RFP M, at 333. Spherix's response to this requirement was evaluated as a weakness, because the SSET found that Spherix did not provide detailed information; SSET did not conduct discussions on the matter with Spherix because it concluded that Spherix's proposal "spoke to staffing but weak in identification." See AR, Supplemental Documents, Final SSET Consensus Evaluation Worksheets for Spherix, at 2999. This aspect of Spherix's proposal, which was identified by the SSET as a "significant weakness," see AR, Supplemental Documents, Source Selection Briefing Slides, at2985, also should have been raised with Spherix during discussions, but was not.  (Spherix, Inc., B-294572; B-294572.2, December 1, 2004) (pdf)

PDMG asserts that the agency improperly failed to conduct adequate discussions for the Area 5 and 6 awards and, as a result, treated offerors unequally. Specifically, PDMG maintains that, after the initial rounds of discussions--during which the agency asked PDMG about its experience as it related to performing the RFP's mortgagee compliance requirements--the agency continued to have a concern in the area, but did not again raise it with PDMG. The protester contrasts this with the agency's actions in conducting discussions with SAAM; in both the first and second rounds of discussions, the agency pointed out to SAAM that its prices for certain line items appeared low. PDMG asserts that the agency's repeated discussions with SAAM in the area of price, compared to the single round of technical discussions with PDMG covering the agency's experience concern, evidence disparate treatment. This argument is without merit. PDMG's proposals received good ratings in the area of experience following the agency's discussions in the area. AR, exhs. 9 at 80, 10 at 57. Agencies are not required to discuss every element of a technically acceptable proposal that receives less than the maximum possible score, nor are they required to afford an offeror multiple opportunities to cure a weakness remaining in a proposal that previously was the subject of discussions. Bioqual, Inc. , B-259732.2., B259732.3, May 15, 1995, 95-1 CPD 243 at 45. In any case, the record shows that the two firms were given the same opportunity to revise their proposals as to both technical matters and price during the first round of discussions, AR, exhs. 5, 6, 7, 8, and that revisions for both firms were limited to the pricing proposals during the second round. Id. Thus, contrary to PDMG's assertion, both firms received virtually identical discussions, albeit in different proposal areas depending on the particulars of their offers.  (Portfolio Disposition Management Group, LLC, B-293105.7, November 12, 2004) (pdf)

Chapman also argues that HUD misled it into believing that its responses to the discussion questions had satisfied HUD's concerns. Specifically, Chapman asserts that, during each round of discussions, HUD required Chapman to address only those issues currently raised and informed it that all prior issues had been resolved. Chapman's assertions are belied by the record. While HUD's discussion letters included the statement Your written responses to the written negotiations/ discussions should address only the areas set forth above. . . . (emphasis in original), the letters nowhere stated that prior issues had been resolved, and (other than the initial letter, which did not request FPRs) specifically advised that offerors may address any area in their FPR. Discussion Letters dated Apr. 27, 2004, May 21, 2004, and June 8, 2004.  (Chapman Law Firm, LPA, B-293105.6, B-293105.10, B-293105.12, November 15, 2004) (pdf)

NIH's discussions with Cygnus did not comply with the requirement that discussions be meaningful. As noted above, in explaining why THG's proposal was superior to Cygnus's proposal such that, notwithstanding the significantly lower cost of Cygnus's proposal, THG's proposal represented the best value to the government, the source selection authority cited a number of weaknesses in Cygnus's proposal (as well as strengths in THG's proposal). NIH, however, failed to raise several of these weaknesses during the discussions with Cygnus. Thus, the agency failed to advise Cygnus that the agency viewed as a major weakness (under the single most important technical evaluation subcriterion) the evaluated limited [DELETED]; had assigned a weakness to Cygnus's proposal on the basis that [DELETED]; and had concluded that Cygnus, although displaying an understanding of the scope of work, had not presented a [DELETED]. At the least, in conducting discussions with Cygnus, the agency was required to discuss the first of these concerns, since the agency indisputably viewed it as major weakness. Moreover, while NIH did raise other matters of concern during discussions, the record indicates that the agency misled the protester as to the results of those discussions, advising Cygnus that it had successfully addressed the agency's concerns when this in fact does not appear to have been the case. In this regard, NIH advised Cygnus during discussions of its concern that the proposed leader of Cygnus's team of meeting planners would [DELETED]. Further, NIH viewed Cygnus's failure to furnish samples of its graphics designers' work to be a major weakness, and the agency therefore requested that Cygnus submit such samples. NIH Discussions Letter to Cygnus, Oct.9, 2002. In response, Cygnus sought to explain its rationale for the specified level of effort for [DELETED]. In addition, Cygnus furnished [DELETED]. Cygnus Discussions Response, Oct. 24, 2002. NIH also requested and received from Cygnus additional information regarding, and verification of, several elements of Cygnus's proposed costs, and the agency specifically negotiated [DELETED]. See , e.g. , NIH Discussion Letters to Cygnus, Oct.9, 2002, Dec. 2, 2002, and Jan. 28, 2003. NIH did not find Cygnus's response with respect to the team [DELETED] to be satisfactory, and, according to the agency, it [DELETED]. Further, as noted above, the agency considered the costs negotiated with Cygnus to be [DELETED]. Nevertheless, notwithstanding its continuing concerns with Cygnus's proposal, the agency advised Cygnus in the March 26 request for an FPR that as a result of the oral discussions with it, "in which we negotiated cost issues concerning your proposal," including the [DELETED], a "total estimated cost of[DELETED] . . . is considered to be fair and reasonable." NIH Request to Cygnus for FPR, Mar. 26, 2003. NIH further advised Cygnus on March 27 that "[d]iscussions concerning Cygnus Corporation's proposal have concluded... . It is understood that these discussions have resulted in agreement of all technical and cost issues raised during negotiations." NIH Request to Cygnus for FPR, Mar. 27, 2003. Likewise, when the agency afforded Cygnus and the other offerors on April30 an opportunity to submit a second FPR, it advised Cygnus in its letter that "discussions held on March 26, 2003, resulted in agreement of all technical and cost issues raised during negotiations." NIH Request to Cygnus for FPR, Apr. 30, 2003. (Cygnus Corporation, Inc., B-292649.3; B-292649.4, December 30, 2003)  (pdf)

Here, ASUS admits that, “[d]uring discussions . . . the Navy expressed concerns about [the subcontractor’s] size and its capability to perform the subcontracted work if it were to experience rapid growth as a result of this project.” ASUS Comments at 7. However, ASUS notes that, in response to these expressed concerns, it provided financial records regarding the subcontractor’s viability, a corporate guarantee from ASUS’s parent company, and an explanation of the subcontractor’s plans to hire the workers from the existing government workforce necessary to operate the wastewater systems. ASUS argues that the agency’s apparent “acceptance” of the information and “failure to point out any continuing perceived weaknesses” was misleading and denied ASUS the opportunity to revise it proposal. Id. at 8. We disagree.  Nothing in the record suggests that the agency misled ASUS regarding its concerns. ASUS has pointed to no affirmative statements by the Navy indicating that the agency viewed the concerns it had raised regarding the proposed subcontractor as having been resolved. Further, since the agency was not required to reiterate concerns that were not alleviated after reviewing the protester’s response to the initial discussions, OMV Med., Inc. , supra , the mere fact that the Navy remained silent after the protester’s response could not reasonably be understood here as an indication that the agency found ASUS’s response to be satisfactory. (American States Utilities Services, Inc., B-291307.3, June 30, 2004) (pdf)

Here, as discussed above, despite Lockheed’s inclusion in its initial proposal of “contractor-specific” savings, including the savings associated with the [deleted], the agency declined during discussions to indicate in any way that such savings would be excluded from the agency’s calculation of AUPC.[13] The agency asserts that Lockheed should have known that “contractor-specific” savings would be excluded from the agency’s AUPC calculation due to the RFP’s statements that an “independent Government estimate” of AUPC would be conducted and that various estimating tools would be used to “either validate contractors’ cost estimates or to develop Government cost estimates.” RFP § M.3.1.1.1. We disagree. Neither the language of the solicitation, nor the information provided by the agency during discussions, reasonably placed the offerors on notice that “contractor-specific” savings would have no effect on the agency’s calculation of AUPC. Although we agree that, if the agency actually intends to compete the follow-on production contract, there is nothing inherently unreasonable in evaluating only “design-specific” costs,[14] the offerors were not clearly advised of this. As noted above, the RFP stated that the agency would evaluate the AUPC of “the offeror’s proposed munition” and that such evaluation would be based on an assessment of “the bidders’ production cost estimates.” RFP § M.3.1.1.1. Further, the agency clearly knew, or should have known, that Lockheed’s initially proposed AUPC was based on “contractor-specific” costs, including the costs associated with the proposed [deleted]; yet the agency failed to advise Lockheed during discussions that such costs would be replaced with “industry rates” in calculating the evaluated AUPC. Consistent with the terms of the solicitation, and the information provided during discussions, Lockheed reasonably believed that it could reduce its evaluated AUPC by increasing its proposed “contractor-specific” savings. On this record, the agency failed to conduct meaningful discussions because it failed to advise Lockheed that “contractor-specific” savings would not be reflected in the agency’s calculation of AUPC. (Lockheed Martin Corporation, B-293679; B-293679.2; B-293679.3, May 27, 2004) (pdf)

USF does not protest the evaluation of its proposed price. Rather, USF maintains that the agency failed to engage in meaningful discussions with it by failing to provide adequate notice that its price exceeded the government estimate, and by failing to adequately discuss the implications of its “all or none” proposal. With respect to the former point, the record shows that the agency did apprise USF in the second negotiation message that its proposed price exceeded the government estimate. USF maintains, however, that when it thereafter submitted pricing that continued to exceed the government estimate, the agency was required to again raise the matter with the firm. With respect to the latter point, the record shows that, in its request for FPRs, the agency asked USF to clarify whether its offer was still “all or none.” AR, exh. 12, at 1. USF maintains that the agency was required to apprise it of the fact that unbundling the proposal could have made it eligible for award of the wastewater system. We have no basis to object to the adequacy of discussions here. Discussions are legally adequate where offerors are advised of the weaknesses, excesses and deficiencies in their proposals. Professional Performance Dev. Group, Inc., B‑279561.2 et al., July 6, 1998, 99-2 CPD ¶ 29 at 5. While discussions should be as specific as practicable, there is no requirement that they be all-encompassing or extremely specific in describing the agency's concerns; rather, the legal requirement is that they generally lead offerors into the areas of their proposals that require amplification or correction, without being misleading. Id. Where an agency has advised an offeror of an area of concern, there is no legal requirement that it raise the issue again in a subsequent round of discussions, even where the issue continues to be of concern to the agency. Id. at 5 n.3. (USFilter Operating Services, Inc., B-293215, February 10, 2004) (pdf)

An agency is not required to afford offerors all encompassing discussions, or to discuss every aspect of a proposal that receives lower than the maximum score, and is not required to advise an offeror of a minor weakness that is not considered significant, even where the weakness subsequently becomes a determinative factor in choosing between two closely ranked proposals. Northrop Grumman Info. Tech., Inc., B‑290080 et al., June 10, 2002, 2002 CPD ¶ 136 at 6. Here, none of the identified weaknesses prevented AO’s proposal from being considered fully acceptable or otherwise from having a reasonable chance of receiving the award. Rather, the weaknesses merely resulted in AO’s proposal being rated good rather than excellent under the factors in question, and the award ultimately was made to AMTEC, not because AO’s proposal was deficient, but because AMTEC’s was superior. Development Alternatives, Inc., B-279920, Aug. 6, 1998, 98-2 CPD ¶ 54 at 7. Under these circumstances, the agency was not required to discuss these weaknesses with AO.  (American Ordnance, LLC, B-292847; B-292847.2; B-292847.3, December 5, 2003)  (pdf)

Although discussions must address at least deficiencies and significant weaknesses identified in proposals, the scope and extent of discussions are largely a matter of the contracting officer’s judgment. In this regard, we review the adequacy of discussions to ensure that agencies point out weaknesses that, unless corrected, would prevent an offeror from having a reasonable chance for award. For discussions to be meaningful, they must lead offerors into the areas of their proposals requiring amplification or revision. The Communities Group, B‑283147, Oct. 12, 1999, 99-2 CPD ¶ 101 at 4. The agency provided MacB with meaningful discussions. Specifically, it issued several evaluation notices (EN), two of which requested clarification of MacB’s plans to use incumbent personnel. The first sought clarification of the “commitment of individuals listed as key technical personnel . . . and . . . who they propose to fill key . . . positions if incumbents are not interested.” AR 14 at 1. A second EN sought clarification of an apparent contradiction in MacB’s proposal relating to its plan to offer the right of first refusal to incumbent personnel while at the same time proposing to have 30 percent of the effort staffed by subcontractor personnel. Id. While these ENs did not specifically refer to “risk,” they clearly were sufficient to communicate the agency’s concerns about MacB’s ability to successfully acquire the incumbent workforce, upon which the moderate risk rating ultimately was based. This satisfied the requirement for meaningful discussions in this area. (MacAulay-Brown, Inc., B-292515; B-292515.2, September 30, 2003)  (pdf)

The agency's initial evaluation under this sub-criterion downgraded M&S Farms' proposal for not identifying what each individual would do, and downgraded Carr's proposal to the same degree because its resumes did not list references. Agency Report, Tab 7, Initial Rating Sheets for M&S Farms' Proposal, at 51, 109; Tab 8, Initial Rating Sheets for Carr's Proposal, at 22, 51. Discussions with M&S Farms did not include a question regarding this sub-criterion, or otherwise identify the concern for which M&S Farms' proposal was downgraded, Agency Report, Tab 11, Discussions with M&S Farms, but discussions with Carr did include a question that disclosed the agency's concern under this sub-criterion. Agency Report, Tab 12, Discussions with Carr (Feb. 14, 2002), at 2. Carr then provided the requested references and the agency increased Carr's score to the maximum points available under the sub-criterion, which accounts for the majority of the difference in technical scores between these proposals. Agency Report, Tab 14, Carr's Response to Discussions, at 34; Tab 17, Revised Rating Sheets for Carr's Proposal, at 3. The agency thus treated the offerors unequally on this point, with the awardee receiving a prejudicial competitive advantage as a result.  (M&S Farms, Inc., B-290599, September 5, 2002)  (pdf)

However, as the agency points out, this was just one of several noted weaknesses in Northrop's approach to performing the contract, with no indication that it was considered significant. COR at 23-24. This being the case, and since there is no evidence that the weakness prevented the proposal from being rated acceptable under the systems management/program management subfactor, or otherwise prevented Northrop from having a reasonable chance of receiving the award, the agency was not required to discuss this issue with Northrop. See Brown & Root, Inc. and Perini Corp., a joint venture, supra.  (Northrop Grumman Information Technology, Inc., B-290080; B-290080.2; B-290080.3, June 10, 2002)  (pdf)

While agencies generally are required to conduct meaningful discussions by leading offerors into the areas of their proposals requiring amplification, this does not mean that an agency must "spoon-feed" an offeror as to each and every item that could be revised or otherwise addressed to improve its proposal. LaBarge Elecs., B-266210, Feb. 9, 1996, 96-1 CPD para. 58 at 6.  (DeLeon Technical Services, Inc.; TekStar, Inc., B-288811; B-288811.2; B-288811.3, December 12, 2001)

Where agency knew or should have known that the protester interpreted the solicitation as limiting technical proposals to 100 pages, discussions with the protester were not meaningful when the agency did not advise protester that the solicitation permitted 200 page proposals, declined to advise the protester of the agency's repeatedly expressed concerns that the protester's proposal lacked detail, and advised the protester there were no technical weaknesses in its proposal.  (Bank of America, B-287608; B-287608.2, July 26, 2001)

Under Federal Acquisition Regulation (FAR) § 15.306(e)(3), "the [CO] may inform an offeror that its price is considered by the Government to be too high, or too low, and reveal the results of the analysis supporting that conclusion." This language clearly gives the CO discretion to inform the offeror that its price is too high, but does not require that the CO do so, especially where, as here, the agency does not consider the price a significant weakness or deficiency that the offeror could alter or explain to enhance the proposal's potential for award. National Projects, Inc., B-283887, Jan. 19, 2000, 2000 CPD ¶ 16 at 5; see also KBM Group, Inc., B-281919, B-281919.2, May 3, 1999, 99-1 CPD ¶ 118 at 8-9 (agency did not mislead protester during discussions, even though award was ultimately made based on price and agency did not inform protester that its price was higher than awardee's price, where agency did not believe that protester's price was too high for the approach taken).  (SOS Interpreting, Ltd., B-287477.2, May 16, 2001)

The agency's discussions with IRRI specifically identified the individual CLINs for which the agency considered IRRI's proposed prices too low, which constituted half of the CLINs, as well as that IRRI's overall price was too low. It then afforded IRRI an unrestricted opportunity to submit final proposal revisions. The record thus shows that the Air Force conducted meaningful discussions on the issue.  (International Resources Recovery, Inc., B-287160, March 30, 2001)

We will not find that an agency improperly failed to advise an offeror of a weakness reasonably viewed during the evaluation as minor merely because, as the competition played out, the weakness could have been a determinative factor in choosing between two closely ranked proposals. Brown & Root, Inc. and Perini Corp., a joint venture, B-270505.2, B-270505.3, Sept. 12, 1996, 96-2 CPD para. 143 at 6.  (Millar Elevator Service Company, B-284870.4, December 27, 2000)

This case highlights the challenge that an agency may face when, for whatever reason, it reevaluates initial proposals after discussions are complete. If during the reevaluation of proposals the agency identifies concerns that would have had to be raised had they been identified before discussions were held, the agency is required to reopen discussions in order to raise the concerns with the offerors. Mechanical Contractors, S.A., supra, at 5-6; CitiWest Properties, Inc., supra, at 5. The key fact is that the concerns (while identified relatively late) relate to the proposals as they were prior to discussions.  (DevTech Systems, Inc., B-284860.2, December 20, 2000)

Contracting agencies are not obligated to afford all-encompassing discussions that "spoon-feed" an offeror each item that must be addressed to improve a proposal; agencies are only required to lead offerors into the areas of their proposals considered deficient and requiring amplification.  (SDS International, B-285821, September 21, 2000)

Contracting agencies are not obligated to afford all-encompassing discussions that "spoon-feed" an offeror each item that must be addressed to improve a proposal; agency reasonably led protester into the areas of its proposal with shortcomings that warranted amplification or clarification.  (Arctic Slope World Services, Inc., B-284481; B-284481.2, April 27, 2000)

Allegation that discussions with protester were not meaningful is sustained where the record shows that the evaluators were concerned over the protester's pricing methodology and the source selection official shared that concern, but the protester was not afforded an opportunity during discussions to explain its pricing strategy.  (ACS Government Solutions Group, Inc., B-282098; B-282098.2; B-282098.3, June 2, 1999)

For discussions to be meaningful, they must lead offerors into the areas of their proposals requiring amplification or revision; the agency is not required to "spoon-feed" an offeror as to each and every item that could be revised so as to improve its proposal, however. Du and Assocs., Inc., supra, at 7-8; Applied Cos., B-279811, July 24, 1998, 98-2 CPD para. 52 at 8.  (LB&B Associates, Inc., B-281706, March 24, 1999)

Protest that discussions were not meaningful because agency failed to point out excesses in protester's technical proposal is denied where claimed beneficial features in fact were not excesses, but rather (1) were considered by the agency to be desirable, (2) were simply protester's approach to complying with the solicitation requirements, or (3) did not render the proposal unacceptable, result in a significant reduction in score, or result in an unreasonable, grossly excessive price.  (Consolidated Engineering Services, Inc, B-279565.5, March 19, 1999)

Written discussion questions generated by a contracting agency should reasonably apprise offerors of the areas that the agency considers deficient such that the offerors will understand the agency's concerns.  (Stratus Systems, Inc., B-281645, February 24, 1999)