Protest of VA Contract Award

B-203089: Nov 19, 1981

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A firm protested the award of a contract contending that the award was improper because the agency failed to conduct discussions with the offerors within the competitive range and because the award was not made on the basis of the lowest priced, technically acceptable proposal. The solicitation provided that the award would be based on the highest total score considering price and technical evaluation and that the award might be made without discussions on an initial proposal basis. Prior to the award, the firm protested to the contracting officer the award of the contract to other than the low, technically acceptable offeror. Two days later, the agency denied the protest and awarded the contract to the highest ranked offeror. The protester then protested to GAO. GAO held that, in negotiated procurements, discussions are generally required to be conducted with all offerors within a competitive range. Agencies may make an award without discussions where it can be demonstrated that acceptance of the most favorable initial proposal without discussions would result in a fair and reasonable price. However, this exception does not apply where there is uncertainty as to the pricing or technical aspects of the proposals. Since there was a substantial degree of uncertainty regarding the protester's proposal, it should have been clarified through discussions with the protester. Further, it appeared that these matters could have been readily clarified through discussions without any great delay or cost. In light of this and considering that the protester's price was lower, the agency should have conducted discussions with all offerors within the competitive price range. With regard to the protest against the award to other than the lowest, technically acceptable offeror, GAO held that the protest was untimely as it should have been submitted prior to the closing date for the receipt of initial proposals. Additionally, the proposed use of senior agency personnel as instructors by two offerors might violate applicable conflict of interest regulations. Accordingly, the protest was sustained. However, because the contract was completed, corrective action was not possible in this case.