• R.D. Lieberman,Consultant

A Footnote About Discussions and Final Proposal Revisions

In a recent blog, I explained that an agency does not need to give offerors a chance to submit a second final proposal revision. See “Don’t Hurt Your Chances to Win in Your Final Proposal Revisions.” So if you introduce problems or deficiencies in your final offer, you are likely to lose a contract award. TASC, Inc., B-412674, August 25, 2016. Another Government Accountability Office (“GAO”) protest adds a further thought about discussions and deficiencies in final proposal revisions. URS Fed. Servs, Inc., B-41304 et al. July 25, 2016.

In URS, a best value source selection, the solicitation required resumes for eight key personnel in order to demonstrate the offeror’s ability to meet the requirements. The unavailability of a key person was identified as a material requirement of the solicitation. URS’s proposal was evaluated as “unacceptable” because of a deficiency. The proposal identified as a senior software engineer (key person) an individual who resigned from URS after the proposals were submitted. URS argued in its protest to GAO that the unacceptable rating was not reasonable, because the departure of its proposed key person was not the fault of URS.

GAO denied the protest, stating there was no basis to question the agency’s evaluation. The GAO stated that it has consistently held that upon notice of the withdrawal of key personnel prior to a contract award, the agency has two options:

  1. evaluate the proposal as submitted, where the proposal would be rejected as technically unacceptable for failing to meet a material requirement; or

  2. re-open discussions to permit the offeror to correct this deficiency.

Further, the GAO noted that the agency’s discretion to hold discussions is broad, and is not generally reviewed by GAO. URS’s protest was denied because discussions were never reopened and because its final proposal, as submitted, contained a material failure to meet a material requirement of the solicitation.

Offerors should keep in mind that a protest concerning a change in circumstances after final proposals are submitted (such as the departure from the company of a key person required by the solicitation) will not be sustained at the GAO. If such an event occurs, the offeror should, prior to award, immediately notify the Contracting Officer and seek a re-opening of discussions so that it can substitute an available person. Alternatively, the offeror can look for another procurement opportunity, since it is not likely to win at the GAO.

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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