The Nash & Cibinic Report discusses the difficulty for agencies to lose a protest about the conduct of oral presentations due to the broad discretion given to them by Federal Acquisition Regulation 15.102. However, a recent procurement, Sparksoft Corp., proved that it can be done. The winning offeror's oral presentation was evaluated as if it had been a written technical proposal, resulting in a protest granted by the GAO due to a lack of communication within the agency. The report emphasizes the importance of live presentations with the SSA in attendance for effective oral communications.
37 Nash & Cibinic Rep. NL ¶ 45
Nash & Cibinic Report | July 2023
The Nash & Cibinic Report
Competition & Award
Ralph C. Nash
¶ 45. POSTSCRIPT: ORAL PRESENTATIONS
In Oral Presentations: When Are They Discussions?, 36 NCRNL ¶ 69, we reviewed several recent decisions of the Government Accountability Office and concluded that, with the broad discretion given to agencies by Federal Acquisition Regulation 15.102, it was difficult for an agency to lose a protest about the conduct of oral presentations. Nonetheless, Sparksoft Corp., Comp. Gen. Dec. B-421458, 2023 CPD ¶ 122, 2023 WL 3691806, proves that it can be done. In that procurement, the agency conducted a virtual oral presentation where the offerors were directed to respond to a challenge question (disclosed in advance) and an “on-the-spot” challenge. Apparently, there was no question-and-answer period, resulting in the evaluation of the oral presentation as if it had been a written technical proposal. The GAO described the evaluation of the winning offeror’s presentation as follows:
The [technical evaluation panel (TEP)] assessed a negative finding to Softrams’s oral presentation because Softrams’s “response to implementing new types of work focused primarily on onboarding new models but didn’t mention specifics on how they would implement…new programs, a new help desk for customer support, or support additional lines of business.” The TEP characterized the impact of this as: “[t]he [vendor] didn’t effectively communicate their solution for taking on new programs which left the TEP unclear on how they would accomplish this task. This increases the risk that the [vendor] would be able to implement a new program without assistance from [the agency].” The TEP ultimately concluded that the negative finding was “not significant,” and was outweighed by its positive findings regarding Softrams’s oral presentation. The TEP assigned Softrams’s oral presentation a rating of high confidence.
The Source Selection Authority concurred with this finding and added that the failure to address “new programs” was due to a lack of clarity in the challenge question posed by the agency, not to Softrams itself. However, the GAO found that this conclusion was erroneous. It therefore granted the protest, stating:
We find that this error of fact calls into question the reasonableness of the SSA’s evaluation of Softrams’s oral presentation. In this regard, the [Request for Quotations] provided that oral presentations would be evaluated, in part, for the “completeness” and “comprehensiveness” of vendors’ responses to the challenge questions. The SSA’s evaluation of whether Softrams had completely and comprehensively addressed the challenge question was clearly influenced by the SSA’s incorrect understanding that the agency had not directed vendors to address the implementation of new programs.
This seems to indicate that there was a lack of communication within the agency. Oral communications are a team sport and there is a lot to be said for having a live presentation with the SSA in attendance. RCN
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