The Government Accountability Office (“GAO”) posted five protest decisions today and, not surprisingly, each protest was denied. One of those decisions, Metson Marine Services, Inc., B-299705, involved Metson’s protest of the award of a contract to Seaward Services, Inc. under a Request for Proposals (RFP) issued by the Department of the Navy, Military Sealift Command (MSC) to obtain port operation and vessel management services for the Athena high speed research vessel system. Metson protested that the agency unreasonably concluded that its proposal was technically unacceptable, failed to conduct meaningful discussions with Metson, and conducted an unreasonable evaluation of Seaward’s past performance.
The GAO decided that the agency reasonably determined that the protester’s proposal was technically unacceptable and that it would not conduct further discussions with the protester, where protester’s final revised proposal, submitted after extensive discussions, failed to meet the solicitation’s requirements for a key personnel position. Metson had argued that the agency failed to conduct meaningful discussions. More specifically, Metson maintained that when Metson’s proposed person was found to not meet the RFP requirements for this key personnel position, the agency was obligated to follow up with further discussions. Had it done so, the protester asserted, the agency “would have realized that Metson’s proposed person was not only qualified, but exceeded the qualifications of the person Seaward had proposed for the same position.
This decision is not noteworthy because of any groundbreaking legal pronouncements; it simply highlights how difficult it is to overcome the deference that the GAO affords to government agencies. While acknowledging that “when an agency engages in discussions with an offeror, the discussions must be meaningful,” the GAO nevertheless concluded that an offeror’s creation of a proposal defect which first appears in a proposal revision following discussions does not trigger an obligation to engage in another round of discussions and proposal revisions to advise the offeror of the newly-created deficiency and permit attempted correction. We find ourselves wondering why not? Isn’t it the purpose of a negotiated procurement to use discussions to correct deficiencies and facilitate the selection of the best value?
In similar deference to agency discretion, the GAO dismissed the protester’s assertion that it was unreasonable for the agency to conclude that its key person failed to meet the solicitation qualification requirements for the position. Metson argued that this individual’s qualifications not only met, but exceeded, the solicitation requirements. In response the GAO stated that “In reviewing a protest of an agency’s proposal evaluation, it is not our role to reevaluate proposals. Rather, we will consider only whether the evaluation was reasonable and consistent with the terms of the solicitation and applicable procurement statutes and regulations.”
While the agency and the GAO may have ultimately ruled correctly under the particular facts of this case, the GAO’s reluctance to look behind an agency’s decision not to continue or reopen discussions, or not to look behind an agency’s proposal evaluation, means that it is virtually impossible to win a protest where the reasonable exercise of agency discretion is at issue. In our opinion, the GAO would foster a much more even-handed application of the negotiated procurement source selection procedures if it did not defer so easily to agency discretion.