Why contract award debriefings are no mere formalities

Contractors have long urged agencies to expand the debriefings they give to losing bidders after making an award. In one recent case, an enhanced debriefing lea...

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Contractors have long urged agencies to expand the debriefings they give to losing bidders after making an award. In one recent case, an enhanced debriefing led to a turnover in the award. The new award turned out to be protest proof. The Federal Drive with Tom Temin talked about the project, worth tens of millions of dollars, with Joe Petrillo, Smith Pachter McWhorter procurement attorney.

Tom Temin: Joe, tell us more about this case, because this one was a significant number of dollars involved.

Joseph Petrillo: Right. Well, this case arose because Air Force Northern, which is responsible for the aerospace control and defense of the continental U.S. needed IT support services. And they turn to the [General Services Administration] and ask them to acquire that under its Alliant 2 governmentwide acquisition contract. So GSA issued a solicitation for those services. It was best value acquisition and the non-price factors — the two of them were technical approach and past performance — were significantly more important than the price factors. Three offerors stepped up to compete. And ultimately Booz Allen Hamilton was the successful awardee. It had the highest priced offer, but also the highest rated proposal. And under the evaluation criteria, as the biggest thing shook out, they got the award. Now, as you mentioned, there was an enhanced debriefing and that included a question and answer process. And while GSA went through that debriefing process, it realized they’d made a mistake. They somehow had not evaluated the entire proposal submitted by another offeror: General Dynamics Information Technology. So GSA pause the debriefing, went back and completed the evaluation. Lo and behold to the final evaluation results changed. Booz Allen continued to have the highest rating for both technical approach and past performance. Its price was $73.5 million, the highest.

Tom Temin: Right and that was $9 million more than GDIT’s bid of $64.8 million.

Joseph Petrillo: Exactly. So there was a significant difference there. But GDIT’s technical evaluation rating jumped from little confidence to significant confidence, the next highest rating. It’s past performance rating was also high confidence. The third offeror had the lowest price but also the weakest evaluation and wasn’t considered for award. Given the new results, GSA made a new award decision, and GDIT turned out to be the awardee instead of Booz Allen, which was understandably perplexed by this and filed a protest with the Government Accountability Office.

Tom Temin: So therefore, what we can infer so far before this case completely whelmed out is that because GDIT’s past performance and technical approach went up so much that even though it was slightly below that of Booz Allen, that price difference is probably what mitigated in favor of GDIT.

Joseph Petrillo: Well, we’ll find out. What happened after the Booz Allen protest was filed, the parties filed their documents with GAO and GAO decided to hold an alternative dispute resolution conference. As a result of that conference, it said that the protest would succeed, the GAO attorney assigned to the protests that she saw flaws in the documentation supporting the award decision. And so GSA got the message and decided to take corrective action. So GAO dismissed the protest as academic because it was going to result in a new award decision. GSA went back and amended its source selection decision, reconsidered things, but it’s still selected GDIT as the awardee and so Booz Allen again filed a protest.

Tom Temin: We’re speaking with procurement attorney Joe Petrillo of Smith, Pachter, McWhorter. So second protest, what happened then?

Joseph Petrillo: Okay, that protest also went to GAO. And the two main issues were first of all, Booz Allen protested the improvement of GDIT’s rating which had jumped up from little confidence to significant confidence. But GSA was able to defend that change, because it related back to the parts of the proposal that it had not initially evaluated. Once it looked at the evaluation, and found that things considered as significant flaws or weaknesses weren’t. After all, they had been addressed in the proposal adequately. So at that point, the second issue became relevant, which is what about the source selection decision, which GAO had decided in the first protest or heading, opined in the first protest, probably would have led to the protests being sustained. Originally, GSA had said, well, the proposals are essentially equal and technically and so we’ll go with a lower price, but the record really didn’t support that. And when it went back, GSA reconsidered and fixed that problem by acknowledging that the Booz Allen proposal was superior, which the technical evaluation showed it was. But it reviewed the significance of those aspects in which they were superior. And it determined that, in the judgment of the source selection official, it wasn’t worth a 13%. higher price, which is what was associated with that higher rated proposal.

Tom Temin: Right. The implication here is that even though price is not the most important criterion, at some point, when things are so close, then it does enter into the thinking process of source selection, because of how significant the price difference really was.

Joseph Petrillo: Exactly. And here, what we’ve got is a decision that falls within the judgment, the reasonable judgment of the procuring agency, and in this instance, GAO, as it ordinarily won’t, won’t overturn that decision. Won’t second guess that decision. If it’s within the judgment of the source selection official, that judgment is reasonably based.

Tom Temin: Alright, so what’s the big lesson learned here for Booz Allen and for people that are attending enhanced debriefings in the first place, which again, is something contractors have repeatedly called for and now DoD has — and I guess, via GSA — has started regularly offering enhanced debriefings?

Joseph Petrillo: Well, I think this shows that the enhanced debriefing process and indeed, the protest process through the ADR conference is one that can enable an agency to correct errors in its acquisition. And to do that more quickly than if it fights a protest to the end, loses and then has to redo things again and again. It also raises an interesting question about what it means to be significantly more important than price. Because at some point, this falls into a judgement zone, whether the technical evaluation criteria are equal to price or significantly more important than than price. And at that point, it’s a decision that probably in many instances can go either way, and do so legally.

Tom Temin: Because there’s no real way to peg it. I mean, if the Booz Allen bid had been 10 times as much instead of 13% more, it would have been very clear cut. But 13% more, you’re still talking $8-9 million over the life of the contract. Is that significant or not? Over something that’s $60, $70, $80 million? That is definitely a judgment call?

Joseph Petrillo: Yeah. And what’s key here is that the agency convincingly showed from the evaluation that it had very high confidence that either offeror could perform the contract successfully. One offeror had even more confidence than the other. But the difference, again, fell into that range of judgment that the agency has.

Tom Temin: Yes, if you’re talking Booz Allen and GDIT. Either case, you’re not talking about fly-by-night small businesses. These are both large, capable outfits.

Joseph Petrillo: And they both had very high ratings and past performance. So they had a good track record as evaluated by the agency.

Tom Temin: And just as an aside, did anyone ever delve into what the heck the GSA source selection board overlooked when they were doing the evaluation? Were pages fell into a drawer or something that they missed, or what?

Joseph Petrillo: Yeah, that’s a juicy detail that GAO did not put in their in their decision, unfortunately. So you wonder how it happened, but at least it was fixed after it was discovered.

Tom Temin: Well, lesson learned there somehow. Joe Petrillo is a procurement attorney with Smith, Pachter McWhorter. Thanks so much.

Joseph Petrillo: Thank you, Tom.



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