Pre and Post Award Bid Protest

GAO Bid Protest-Meaningful Discussion

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GAO bid protest turns on whether the Department of the Army offered meaningful discussion to disappointed bidder. This  case study is about a January 22, 2014, GAO bid protest named Matter ofGeo Marine, Inc. (GMI)/Burns & McDonnell Engineering, Inc., Joint Venture. In their protest, GEO Marine, Inc. (GMI), alleged in their GAO bid protest that their proposal was rejected without adequate discussion of their deficiencies. Specifically, the agency, the Department of the Army, Corps of Engineers, identified as a weakness the fact that GMI had not positioned the work turbine generators in the area designated in the performance work statement and had not explained its reasons for deviating from the RFP requirements.

Bidder Relied on NREL

After initial discussions, GMI provided an explanation of moving the turbines. The company stated that it had relied on data from the National Renewal Energy Laboratory regarding prevailing wind direction that was different from prevailing wind direction information included in the RFP. The Agency then came back and changed GMI's changes of placement from a weakness to a "significant weakness." The agency then eliminated GMI's proposal from further consideration after assigning it a marginal rating under technical approach factor.

GMI's Argument

In its GAO bid protest, GMI argued that after changing its concern from a "weakness" to a "significant weakness" the Department of the Army was required to engage in further discussions. In essence, GMI alleged that the Agency's discussions were not meaningful.

GAO Denied It Anyway

n denying GMI's GAO bid protest, the agency stated that it found no merit in the company's protest. The decision reads, "Discussions, when conducted, must identify proposal deficiencies and significant weaknesses that reasonably could be addressed in order to materially enhance the offeror's potential for receiving award. Serco Inc., B-405280, Oct. 12, 2011, 2011 CPD ¶ 237 at 11.[2] However, agencies are not required to reopen discussions to afford an offeror an additional opportunity to revise its proposal where a weakness or deficiency is first introduced in the firm's revised proposal." Raytheon Co., B-403110.3, Apr. 26, 2011, 2011 CPD ¶ 96 at 7.

Didn't Get Better

The GAO found that in GMI's case, the agency engaged in meaningful discussions initially about the weaknesses in the company's proposal. However, rather than remedy the issues identified, GMI's explanations intensified the Department of the Army's concerns for GMI's technical solutions. The GAO determined that it was evident that the Agency realized that the GMI's placement of the wind turbine generators was based on inaccurate information, but was not obligated to engage in any further discussions, since the concerns were originally related after the original proposal.

About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.


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