In AT&T Corp., B-414886 (Oct. 5, 2017), AT&T protested the issuance of a fixed price task order to CDW Government LLC under an RFP for a mobile device solution to support the 2020 Census. Proposals needed to demonstrate “usability, performance, and security requirements; continuous, reliable cellular network coverage; and a technology refresh assessment.”
Discussions are one type of exchanges the agency and each offeror before award that allows them to revised their proposals to address identified weaknesses.
The evaluation used a best-value approach using factors including past performance and technical approach. The technical approach “required offerors to address 13 elements including, as relevant here, a description of the specific mobile device proposed and why it was selected; how the offeror would provide a cellular service solution and maximize signal strength/reliability by designating the best carriers for each area; and how the offeror would address the requirements for technology refresh cycles for mobile devices.”
Four proposals were received, including ones from AT&T and CDWG. After the initial technical evaluation, the agency opened discussions with offerors and requested revised technical proposals. After evaluating the revised proposals, CDWG was rated technically highest, with a price of $283,492,962, while AT&T was ranked second, with a price of $191,850,841. AT&T was ranked second based on technical risk the evaluation team assigned to its multi-carrier solution.
In its protest, AT&T argued that both it and CDWG were initially “evaluated to have potential bias in their multi-carrier approaches, but only CDWG’s technical exchange addressed potential bias.”
In talks with CDWG, the agency “expressed concern that ‘CDWG’s pre-negotiated rates with [DELETED] [presented] a risk that could result in bias during the cellular carrier analysis,’–that is, the rates could affect carrier selection” and asked, “[h]ow does CDWG plan to ensure that its pre-negotiated rates with cellular carriers are unbiased?”
“Unlike the exchange with CDWG, the agency’s technical exchange with AT&T did not mention bias, even though the evaluators had raised a concern about bias for both companies. Instead, the agency asked, “[how] does AT&T plan to include multiple cellular carriers into their cellular network approach?’” AT&T answered that it would use certain methods to determine the best-value carrier.
GAO noted, “an agency may not mislead an offeror through the framing of a discussion question into responding in a manner that does not address the agency’s actual concerns, or otherwise misinform the offeror concerning a problem with its proposal”, and the agency cannot favor one offeror over another.
GAO concluded that “the record as a whole demonstrates the impropriety in the conduct of discussions. To the extent the agency contends that it was concerned about CDWG’s rates, and AT&T’s lack of detail–rather than bias–the record does not support the agency’s contentions. As noted above, AT&T’s response was found lacking because it did not address bias in carrier selection. To the extent the agency was concerned with the potential bias in each offeror’s approach, and raised bias with CDWG, it was obligated to similarly raise this concept with AT&T. Accordingly, the agency’s discussions with CDWG were misleading and unequal in this respect, and we sustain the protest.”
GAO recommended that “the agency reopen the competition, conduct discussions, accept revised proposals, reevaluate, and make a new selection decision in accordance with the evaluation criteria set forth in the RFP” and award costs to AT&T.
The bottom line on this is that the agency needs to treat all offerors fairly throughout the acquisition process, including during discussions.