During those interchanges, the agency told MCR that only 5 of its 58.5 full-time equivalents (“FTEs”) had the desired level of experience. It also told MCR that its reliance on contingent hires created a risk that it would not be fully-staffed in time to perform.
The agency then gave MCR just two days to submit a FPR addressing these issues. MCR protested, arguing that it needed at least 30 days to respond, otherwise it would not have a fair opportunity to improve its proposed labor mix.
In response, the agency offered to give MCR eight days to respond, and asked GAO to dismiss based on that proposed corrective action. GAO, however, denied the agency’s request for dismissal, because the proposed corrective action did not address MCR’s core concern — i.e., that it needed at least 30 days to improve its staffing matrix.
GAO then sustained MCR’s protest. GAO explained that FAR 16.505 requires that each IDIQ holder have a “fair opportunity” to be considered, and this includes a “reasonable response period.” Because FAR 16.505 does not include specific guidance for an agency’s conduct of discussions with offerors, GAO looked to FAR Part 15, which explains that the purpose of such exchanges is to “afford offerors the opportunity to improve their proposals and to maximize the government’s ability to obtain the best value.”
The agency argued that, under GAO precedent, the response period for an FPR submission is “committed to the discretion of the contracting officer,” and GAO will not object to that decision unless it is shown to be unreasonable.
But GAO concluded that, in this case, the period was objectively unreasonable:
In order to be responsive to the agency’s experience concerns, and to remain competitive in the procurement, MCR could not simply confirm its staffing proposal. Instead, it would have had to successfully recruit and negotiate employment agreements . . . with a substantial number of highly-skilled personnel that have senior-level experience[.] To address the agency’s concern about contingent-hire personnel, MCR would need to propose non-contingent-hire personnel, which would affect the firm’s pricing, or alternatively required substantial revisions to its transition plan.
This was not something MCR could do in eight days (let alone two days).
The key takeaway? When agencies engage in discussions, they must afford offerors a meaningful opportunity to improve their proposals. Agencies will continue to have a large amount of discretion, but if an agency imposes a deadline that cannot be met, a protest may be worthwhile.