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On September 30, 2021, the Government Accountability Office (GAO) sustained a protest in the matter of Academy Leadership, LLC, B-419705.2 when it found that the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE), did not conduct meaningful discussions in its request for proposals (RFP) process. This decision is a reminder that communications are discussions when agencies give offerors the opportunity to materially revise proposals, and discussions must be meaningful and available to all offerors.

Authors: Liza V. Craig Joshuah R. Turner Kirsten Lowell, Jordan Rose, Eryn Terry

Background

ICE solicited quotations for the provision of a formal historic battlefield staff ride program focused on leadership training. The solicitation contemplated the award of a single fixed-price, indefinite-delivery, indefinite-quantity contract with a five-year ordering period, to be made on a best-value trade-off basis. The evaluation factors included (1) technical capability, (2) sample training presentation, (3) past performance, and (4) price. ICE informed offerors that the non-price factors, when combined, were significantly more important than price. The RFP stated that the agency did not intend to establish a competitive range, conduct discussions, or request proposal revisions. However, the RFP also stated that the agency reserved the right to hold discussions if the contracting officer deemed it necessary and to contact any offeror to request additional information.

The evaluation was conducted under the simplified procedures for the evaluation of commercial items in two phases using an advisory down-select process. In phase one, the offerors were evaluated under technical capability, past performance, and price factors. They were then notified of their likelihood of success. The most highly rated offerors were advised to move on to phase two and provide their sample training presentations. Two out of six offerors provided their sample training presentations: Academy Leadership LLC (Academy) and Gettysburg Addresses, Inc. d/b/a The Lincoln Leadership Institute (Lincoln). ICE made an initial award to Lincoln on March 16, 2021. On March 26, 2021, Academy timely protested the award, prompting ICE’s reevaluation.

ICE’s reevaluation resulted in a rating of “some confidence” for Academy in all of the non-price factors and a rating of “high confidence” for Lincoln in two of the three non-price factors. However, Lincoln’s quoted price surpassed Academy’s by nearly $2 million. The source selection authority found that Lincoln’s higher-rated proposal warranted the 53 percent price premium because of Lincoln’s superiority in the two heaviest-weighted factors: technical capability and sample training presentation, and the greater risk Academy’s approach held.

Protest grounds

Academy once again protested the award to Lincoln arguing that: (1) the agency’s communication with the offerors requesting a price reduction constituted discussions, and (2) these discussions were neither meaningful, nor fair and equitable. First, ICE maintained that its request did not constitute discussions. ICE argued that its requests fell within the category of clarifications, which are other exchanges that can take place between agency and offeror. Second, ICE argued that even if its request for a price reduction constituted discussions, the GAO should consider that the discussions were fair and equitable because ICE made the same request of all offerors. Finally, ICE argued that it did not ultimately allow offerors to submit revisions to their technical proposals. The GAO found these arguments unconvincing and agreed with Academy.