An agency conducting discussions with an offeror for a government contract must convey the true nature of its concerns for the discussions to be meaningful.
GAO sustained the bid protest of AMEC Earth & Environmental, Inc., in B-401961, B-401961.2 (December 22, 2009), finding the agency’s discussions were flawed. If discussions are conducted, they must be meaningful, equitable, and not misleading. AT&T Corp., B-299542.3, Nov. 16, 2007, 2008 CPD 6.
In the AMEC case, the agency’s questions were misleading, and did not address its’ true concerns. The agency viewed AMEC’s proposed use of a certain project management software as a weakness, but the discussion questions did not communicate this concern. Instead, the agency questions focused on specific features of the project software. The agency reported to GAO that the agency did not want to direct AMEC toward a particular technical approach. GAO, however, concluded that the agency had conducted broad discussions with all firms, identifying weaknesses, and it was incumbent on the agency to do so with all offerors equally. The agency should have apprised AMEC of a perceived weakness in AMEC’s proposal resulting from AMEC’s choice of software product. The agency’s discussions were materially misleading, depriving AMEC of the opportunity to address the concern. GAO sustained the bid protest.
Contact government contracts attorney Karen S. Hindson for your contract law questions.