Chaedrol GAO Protest Log 20240906: 2TechJV (AI)

2TechJV, LLC - B-420960.7

You should care.

Category: Task order competition

Date: August 27, 2024

URL: https://www.gao.gov/products/b-420960.7

2TechJV, LLC, requested the Department of Labor reimburse protests costs connected RFQ #1605TA-22-Q-00044 awarded to Addx Corporation, claiming that the agency's discussions were misleading and technical evaluation was therefore flawed. Labor unfortunately brought part 15’s discussion rules into a Multiple Award Schedule (subpart 8.4) buy. GAO had indicated to 2TechJV they were likely to win their case, so DOL took corrective action. 2TechJV then filed for reimbursement of its protest costs.

Labor used FAR subpart 8.4 to compete an order for OSHA information system support. GAO has “repeatedly recognized that, when an agency holds discussions and seeks revised proposals in a FAR part 15 procurement, an agency’s discussions are not meaningful if they fail to address proposal flaws.” Why is this relevant? “The underlying principle that offerors or in this case vendors, must be treated fairly, applies equally to both FAR parts 8 and 15.”

Had Labor laid consistent ground rules for postquote negotiation, they would have had as much latitude as they set to engage vendors. Instead they followed the FAR Part 15 process model, with all its flaws, and followed it incorrectly. 2TechJV argued that significant weaknesses were not identified during discussions and that the agency's evaluation of its proposal was unreasonable:

There is no requirement in FAR subpart 8.4 that an agency conduct discussions with vendors. See USGC Inc., supra. However, exchanges that occur with vendors in a FAR subpart 8.4 procurement, like all other aspects of such a procurement, must be fair and equitable; our Office has looked to the standards in FAR part 15 for guidance in making this determination. Id.

…

The protester argued that the agency flagged significant weaknesses or deficiencies in the brief explanation that it had not raised during discussions. After the production of the agency report, the record demonstrated that two issues that 2TechJV identified as unaddressed in discussions were characterized by the agency as significant weaknesses. … The protester argued that both those issues were present in its initial quotation, and, thus, the agency was required to identify those issues in discussions. Because the agency failed to do so, 2TechJV asserted that the discussions were not meaningful.

Ultimately, GAO granted the request for reimbursement of protest costs, “including attorneys’ fees, of pursuing its challenges to the agency’s conduct of discussions” and dismissed other costs.

Digest

Request that GAO recommend reimbursement of protest costs is granted in part where the agency unduly delayed taking corrective action in response to clearly meritorious protest arguments, and denied in part where other protest grounds were not clearly meritorious or where the agency took prompt corrective action.