Partnership for Response and Recovery
Highlights
Partnership for Response and Recovery (PaRR) protests the corrective action taken by the Federal Emergency Management Agency (FEMA) in response to the protest of Alltech, Inc. of FEMA's award of contracts under request for proposals (RFP) No. HSFEHQ-06-R-0013 to PaRR and Michael Baker, Jr. Corporation for housing inspection services (HIS). The RFP contemplated award of multiple indefinite-delivery, indefinite-quantity contracts for HIS, which involves providing individual housing inspectors and managing a program to deploy and oversee the inspectors when a disaster occurs. PaRR argues that the agency's revised corrective action, which consists of reopening discussions and requesting completely revised proposals, unfairly favors Alltech and is an abuse of agency discretion.
B-298443.4, Partnership for Response and Recovery, December 18, 2006
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Decision
Matter of: Partnership for Response and Recovery
E. Sanderson Hoe, Esq., and Karri L. Garrett, Esq., McKenna Long & Aldridge LLP, for the protester.
Eric J. Marcotte, Esq., Scott A. Schipma, Esq., and Nathan C. Guerrero, Esq., Winston & Strawn LLP, an intervenor.
Leigh M. Hoburg, Esq., Federal Emergency Management Agency, for the agency.
Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency is not required to limit discussions and revised proposals in taking corrective action in response to protest where it found discussions and evaluation were inadequate and new requirements have been added to the solicitation.
DECISION
Partnership for Response and Recovery (PaRR) protests the corrective action taken by the Federal Emergency Management Agency (FEMA) in response to the protest of Alltech, Inc. of FEMA's award of contracts under request for proposals (RFP) No. HSFEHQ-06-R-0013 to PaRR and Michael Baker, Jr. Corporation for housing inspection services (HIS). The RFP contemplated award of multiple indefinite-delivery, indefinite-quantity contracts for HIS, which involves providing individual housing inspectors and managing a program to deploy and oversee the inspectors when a disaster occurs. PaRR argues that the agency's revised corrective action, which consists of reopening discussions and requesting completely revised proposals, unfairly favors Alltech and is an abuse of agency discretion.
Alltech had protested that the agency's evaluation was irrational, unsupported by the record, and punctuated with recurring examples of blatant disparate treatment, that the discussions were incomplete, and the source selection decision was not explained or documented. Alltech's Protest Comments (B-298443,
Specifically, the agency found that the entire source evaluation board (SEB) had not reviewed the evaluation report, and only a draft report, which contained a discussion of a number of weaknesses attributed to Alltech's proposal that had been resolved during discussions and the submission of final proposal revisions, had been provided to the source selection official. The final SEB report was only prepared after the source selection decision. It was also found that the agency had not conducted meaningful discussions regarding Alltech's past performance and that there appeared to be a disconnect between the discussion questions asked and the agency's true concerns about Alltech's proposal, for example, in the training area. Agency Report at 4-5.
The corrective action first proposed by the agency was to appoint a new SEB and source selection official to conduct a de novo evaluation of the competitive range offerors' proposals. The new evaluators would evaluate proposals based upon the initial submissions and responses to discussion questions. FEMA contemplated that the agency would reopen discussions only for newly identified significant weaknesses that were not the subject of previous discussions and price revisions would only be permitted to the extent they could be tied to the technical changes resulting from new discussion questions. Contracting Officer's Statement at 8-9; FEMA's Corrective Action Letter (
The agency later determined, for a variety of reasons, that the evaluation, discussions and proposal revisions, including price revisions, should not be restricted. In view of the previous errors in the procurement process, the agency determined that it was important for a new SEB to function independently of the previous SEB's determinations and not be biased by the prior evaluation or the discussion questions formulated by the prior SEB. The agency also believed that the limitation on price revisions was unworkable because of the difficulty of linking pricing changes to particular discussion questions and in view of the changes in the period of performance that were necessitated by the prior protest.
Since discussions were being reopened, the agency also determined to implement Homeland Security Presidential Directive 12 (HSPD'12) (
Although the protester does not contend that corrective action was not warranted, it contends that the agency should have continued with its initial narrowly tailored corrective action plan, and objects to the astonishing breadth of the agency's later revised corrective action plan. Protest at 5.
Generally, offerors in response to an agency request that discussions be opened or reopened may revise any aspect of their proposals they see fit--including portions of their proposals which were not the subject of discussions. American Nucleonics Corp., B-193546,
In our view, the corrective action here is well within the broad discretion afforded to contracting agencies in these circumstances. As described above, during the course of defending the previous protest, it came to the agency's attention that there were various errors in this procurement that warranted reopening discussions; as indicated above, the agency is not required to limit the scope of discussions in such circumstances.[1] To the extent that PaRR argues that because offerors were informed of its low price, rescinding the original award and reopening the competition will foster an auction and put PaRR at a competitive disadvantage, we have previously noted that the Federal Acquisition Regulation does not prohibit auctions, and agencies are not otherwise prohibited from taking corrective action in the form of requesting revised price proposals where the original awardee's price has been disclosed. In this regard, we have repeatedly observed that the possibility that the contract may not have been awarded based on a fair determination of the most advantageous proposal has a more harmful effect on the integrity of the competitive procurement system than does the possibility that the original awardee will be at a disadvantage in the reopened competition. PCA Aerospace, Inc., B-293042.3,
The protest is denied.
Gary L. Kepplinger
General Counsel
[1] The protester has not cited and we have found no cases where our Office has required an agency to limit discussions in taking corrective action, but only relies upon cases where our Office found the agency had established particular circumstances for limiting discussions.