• R.D. Lieberman,Consultant

Once Again, Recurring Agency Mistakes in Discussions


A recent blog identified “Six Recurring Agency Mistakes in Discussions.” One of the frequently repeated mistakes (conducting unequal discussions) was again repeated in a recently sustained Government Accountability Office (“GAO”) protest decision, Deloitte Consulting, LLP, B-412125, April 15, 2016. Although there were three grounds upon which the GAO sustained the protest, the relevant one for this blog was previously identified as follows:

Agencies must conduct discussions equally for all contractors in the competitive range. An agency may not identify specific weaknesses in one offer, while failing to advise other offeror(s) that have the same weakness. That is, an agency must identify to each offeror the exact weakness found in their offer.

This mistake was made by the Defense Health Agency in its evaluation of proposals for governance, requirements and architecture management support. Past performance was identified in the solicitation as the second most important of four evaluation factors. The solicitation stated that the offeror’s ability to provide the required services would be based on a “demonstrated record of recent, relevant, performance” (i.e. same or similar scope, magnitude and complexity as in this solicitation). Past performance projects were to be evaluated as “very relevant,” “relevant,” “somewhat relevant,” or “not relevant.” The agency evaluated offers, conducted discussions and made award to Data Networks Corporation. One of Deloitte’s protest grounds was that the agency had conducted “unequal discussions.”

The GAO sustained the protest on the ground of unequal discussions. GAO noted that the agency had advised Data Networks Corporation of each reference it had evaluated as only “somewhat relevant,” but did not advise Deloitte of its own “somewhat relevant” references. The GAO also noted that FAR 15.306 prohibits agencies from engaging in conduct that favors one offeror over another. When the agency chose to include notice of “somewhat relevant” references in discussions with Data Networks Corp. it was obligated to equally notify other offerors where their past performance evaluations also included “somewhat relevant” references.

After discussions had concluded, Deloitte (and perhaps other offerors in the competitive range) could have revised its past performance references so they were either “very relevant” or “relevant,” and thereby achieved a higher evaluation.

This leads the writer to ask a simple question – why aren’t contracting officials given in-service training on the six recurring agency mistakes so they are not repeated?

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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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