Communication with Offeror Was Just a Clarification, Not Discussions; Cherokee CRC, LLC, GAO B-420205, B-420205.2

Protest alleging agency only conducted discussions with the awardee is denied. While reviewing proposals, the agency asked the awardee to confirm that its price included a category of engineering services. The protester alleged this communication amounted to discussions and thus the agency should have conducted discussion with all offerors. GAO found, however, that the communication did not result in proposal revisions and thus was simply a clarification.

Background

The Bureau of Indian Affairs (BIA) issued a solicitation for the design and build of a detention center. BIA received four offers, including proposals from Cherokee CRC and Walga Ross Group (WRG). 

WRG’s proposed a total price of $24 million, but for a value engineering category the proposal stated that price was to be determined. BIA emailed WRG and asked whether its total price included value engineering. WRG confirmed that its price included value engineering. BIA awarded the contract to WRG. Cherokee protested.

Legal Analysis

• BIA Didn’t Conduct Discussions – Cherokee contended that BIA engaged in discussions with WRG but not with other offerors. GAO disagreed. The test for discussions is whether an offeror has been afforded an opportunity to revise their proposal. Here, BIA asked if its price included value engineering. The communication did not permit WRG to revise its proposal but simply asked WRG to clarify what it had already proposed. BIA merely sought clarification and thus was not required to hold discussions with other offerors.
• BIA Reasonably Limited Realism Assessment to Overall Price – Cherokee argued that because WRG had not included a price for value engineering, its price for this category was $0. Cherokee alleged that this should have been rejected as unrealistically low. But GAO noted that solicitation had only specified that the overall price would be evaluated for realism, which the agency had done. Nothing required the agency to evaluate individual categories of a fixed-price contract for realism.

Cherokee is represented by Antonio R. Franco, Jacqueline K. Unger, Anna R. Wright, and Anna G. Sullivan of PilieroMazza PLLC. The intervenor, Walga Ross Group, is represented by Aaron R. Reichelson of Trenam Law. The agency is represented by William B. Blake of the Bureau of Indian Affairs. GAO attorneys Samantha S. Lee and Peter H. Tran participated in the preparation of the decision.

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