A decision just published by the Government Accountability Office ("GAO"), Matter of Burchick Construction Co., mpany, involved a request for proposals issued by the Department of Veteran Affairs ("VA") for the construction of an ambulatory care center . After receiving five proposals and evaluating the technical evaluation factors, the VA conducted discussions with the offerors that only addressed their price proposals. The VA determined that the offeror providing the best value was Massaro Corporation at a firm fixed price of $38,530,000. Burchick Construction Company, whose price proposal of $36,686,000 was the lowest price offered, challenged the award of the contract to Massaro.

During the evaluation of technical proposals, the VA had determined that Burchick’s proposal contained "weaknesses" in a number of factors, including past performance, identification of key personnel, and small business participation. Based on these perceived weaknesses, the VA scored Burchick with a total of 50.8 points out of a possible technical score of 100 points. The VA had given Massaro a score of 67.3 points. When the VA decided to discuss the price proposals, it also decided that it would not conduct discussions with the offerors with respect to the firms’ technical proposals, because "none of the offerors could materially improve its technical proposal."

Burchick contended that the VA did not conduct meaningful discussions since the VA did not apprise Burchick of, or provide it with the opportunity to address, the significant evaluated weaknesses in its technical proposal. Burchick explained that it could have addressed each of the VA’s concerns that resulted in the downgrading of its technical evaluation.

While the GAO conceded that agencies have considerable discretion in determining whether and how to conduct discussions in a negotiated procurement, it found that where discussions are conducted, an agency must identify deficiencies and significant weaknesses, at a minimum, in the proposals of each offeror in the competitive range. The GAO concluded that discussions must be meaningful, meaning that the discussions must be sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision.

The GAO found that the VA failed to conduct meaningful discussions with Burchick, and that there was a reasonable possibility that Burchick was prejudiced, given that it offered the lowest price and could have addressed the VA’s concerns such that it may have been offering the "best value" to the government. The GAO sustained the protest and recommended that the VA conduct discussions with the offerors about the technical proposals, and make a new source selection decision.

The GAO also criticized the agency’s reliance on a numerical comparison of the proposals to determine "best value." While not specifically challenged by Burchick, the GAO noted that a mechanical comparison of the technical and price point scores is not a valid substitution for the qualitative assessment of the technical differences or the benefits associated with a higher priced proposal. Point scores are merely guides, and the record must contain adequate documentation of the price/technical tradeoff to support an agency’s judgment concerning the significance of the differences is reasonable and adequately justified in light of the evaluation scheme. 

It should be noted that the Federal Acquisition Regulation does address the extent of the discussions which are to be conducted with offerors in the competitive range. FAR 15.306(d)(3) provides that:

At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting officer judgment.

While it is not uncommon for the GAO to defer to the discretion afforded the agency in negotiated procurements, that deference, as demonstrated in the Burchick decision, is not absolute. In instances where, as here, the agency’s actions are clearly not in accordance with the requirements of the FAR, seeking redress in a protest before the GAO can sometimes result in a favorable outcome.