Corrective actions continue to diffuse contested bid protests - GAO

The Federal Government Accountability Office has submitted its Bid Protest Annual Report to Congress for Fiscal Year 2014. It indicates corrective actions taken by government agencies is diminishing contested protest outcomes.

The report states, "It is important to note that a significant number of protests filed with our Office do not reach a decision on the merits because agencies voluntarily take corrective action in response to the protest rather than defend the protest on the merits."

The annual statistics show the "Effectiveness rate" of protests has held steady for 5 years at an impressive 43% rate. The Effectiveness rate, expressed as a percentage of all protests closed this fiscal year, is based on a protester's obtaining some form of relief from the agency, either as a result of voluntary agency corrective action or GAO's sustaining the protest.

The ADR Success Rate was similarly productive, at 83%, again line ball with the 5 year record. The ADR Success Rate is the percentage of cases resolved without a formal GAO decision after alternative dispute resolution procedures conducted at the agency level.

As a result of new Congressional requirements, the report included a summary of the most prevalent grounds for "sustaining protests” during the preceding year:

(1) failure to follow the evaluation criteria;
(2) flawed selection decision;
(3) unreasonable technical evaluation; and
(4) unequal treatment.

Jason Miller, posting on Federal News Radio, reported various reactions and comments from experts in and out of government.

"The decrease in sustainment rate is an interesting thing when you look at it with the fact that the effectiveness rate stayed the same. The effectiveness rate is the number of cases sustained and the number of cases where agencies took action and provided relief," said Ralph White, GAO's managing associate general counsel for procurement law, in an interview with Federal News Radio. "The sustainment rate going down means agencies are taking corrective action at a higher rate than last year."

White said GAO gives agencies a preliminary opinion on cases and, many times, acquisition officials decide to act before lawyers potentially rule against them.

Rob Burton, a partner with the Washington law firm, Venable, and a former deputy administrator in the Office of Federal Procurement Policy, said the drop in the sustainment rate also can be attributed to so many incumbents protesting lost contracts as a strategic business decision so they can keep the work for at least another 100 days.

Burton said one thing the numbers don't show is that the increase in protests may be because of the poor job agencies are doing debriefing unsuccessful bidders.

"One thing I've noticed is the poor quality of debriefings where the agency doesn't give the contractor much or any information," Burton said. "If agencies have more dialogue with industry during the post-award debriefing, I think you would see a significant decrease in the number of protest cases. We've had cases where we have recommended a bid protest because the agency showed nothing wrong and was very complementary in the debriefing. We only found out during the protest that there was a fundamental flaw that if the contractor knew about, they wouldn't have filed a protest."

Burton said too often agencies think it's in their best interest to give as little information during a debriefing as possible, when, in fact, the opposite is true.

To procure or not to procure: is that the question?

The U.S. Court of Federal Claims is a court of limited jurisdiction. It can hear some contract disputes, but not all contract disputes, for instance. If a case is brought to the court which is beyond its jurisdiction, however juicy the merits and what it may have to say about the merits, it cannot; it must dismiss the case.

Sometimes, though, the comments it makes in doing so are juicy in their own rights.

The case in this post is one of those, even though the juicy remarks may not be reported in this post.  I have presented it chopped, sliced and diced to my own ends, so do not rely on this rendition as an accurate reproduction of the case.  If you want to know what it really says, read the whole case at the link. 

And if you really want to understand the matter better, read the cases cited in this case. There have been many trying to resolve the simple question, "what is procurement?"  (And while at it, I added a word on "is procurement an inherently governmental action?" whilst reading one of the cases cited.)

In short (read the long version at the link), this is a protest about a decision of the government to use software it had developed and came to own, rather than go to the market to allow other software providers a crack at the work.

VFA, INC. v. USA, U.S. Court of Federal Claims No. 14-173C, (October 2014)

The DoD uses a particular software package in making decisions about sustainment, restoration, and modernization of its facilities. VFA owns and markets a similar software product. The Under Secretary of Defense for Acquisition, Technology, and Logistics issued a memorandum to standardize the use of the
program at all of DoD’s military installations.

VFA filed a bid protest in this Court, alleging that the DoD’s standardization decision excludes VFA and others from competing for contracts to provide facilities management software, in violation of the Competition in Contracting
Act, 10 U.S.C. § 2304 (“CICA”). Simply put, VFA contends that the DoD should be conducting competitive procurements for this software product. The Government argues that an internal standardization decision is not a “procurement” for purposes of the Court’s Tucker Act jurisdiction, and consequently VFA is not an interested party who may challenge such a decision.

In a federal agency as large as DoD, it became increasingly apparent that multiple and different facilities condition assessment tools across DoD installations generated inconsistent and incomparable data. A 2012 Senate Report noted that the DoD “does not have a set of standards or metrics that can be used to inform budget decisions and Congress on the minimal annual levels of funding required to recapitalize the physical plant at a rate that matches the design lives of facilities in the [DoD] inventory.” The report further noted, “[b]udget pressures and other priorities can result in funds appropriated for facility sustainment being used to fund other categories of base operating support. This leads to facilities that do not receive minimal levels of annual preventative maintenance, and are not modernized to current standards for safety, security, and technology.” The report concluded that, “[o]ver the long-term, underfunded maintenance on [DoD]’s facilities costs the Department more in eventual repairs and replacement.”

To address the concerns raised by the consultants and Congress, the DoD made a policy decision to standardize its facility condition assessments. As part of this policy, the DoD chose to standardize the software it developed and owns itself, which was widely used in almost all of its installations, and which had received recognition for cost savings.

The Court must determine whether a plaintiff has established subject matter jurisdiction before proceeding to review the merits of the complaint. The jurisdiction of this Court is limited and extends only as far as prescribed by statute. Where subject matter jurisdiction is challenged, the plaintiff must establish the Court’s jurisdiction by a
preponderance of the evidence. If the Court finds that it lacks subject matter jurisdiction, it must dismiss the claim.

Under the Tucker Act, this Court has “jurisdiction to render judgment on an action by an interested party objecting to . . . any alleged violation of statute or regulation in connection with a procurement or proposed procurement.” In this case, VFA has challenged the government’s actions under CICA and the FAR, but the key phrase for Tucker Act jurisdiction is that Plaintiff’s protest must be “in connection with a procurement or a proposed procurement.” Id. Since neither the Tucker Act nor CICA define the term “procurement,” the Federal Circuit has held that the term “procurement” includes “all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout.” See Distributed Solutions 539 F.3d at 1345-46.

While many courts have cited Distributed Solutions for the proposition that Tucker Act bid protest jurisdiction is broad, the holding remains limited by the facts of the case. Distributed Solutions involved an attempted circumvention of federal procurement law when the Government sought to acquire software for a joint program between the U.S. Agency for International Development (“USAID”) and the State Department. The Government delegated to a contractor the task of selecting private vendors to provide the software. The Government, along with the designated contractor, issued a Request for Information (“RFI”) which stated that the objective of the government’s effort was to “select and implement acquisition and assistance solutions that meet the unique functional requirements of both [USAID and the Department of State].” The RFI specifically stated that it was “for market research purposes only” and would “not result in a contract award.”

After reviewing the responses to the RFI, the Government told the vendors that it had “decided to pursue alternative courses of action.” But, the contractor then issued its own RFI, and used the responses to select the software vendors it wanted. The Government initiated a type of procurement competition without actually committing to award a contract to the best offeror, thereby circumventing applicable federal procurement laws. [NB. My take: The first RFI was used to develop the government's determination of need, an aspect of "procurement". Then, once that was done, the second RFI was used to narrow the field of competition to select the awardee.] Thus, the Federal Circuit concluded that a procurement existed and that a legally compliant competition was required.

The present case is much different in key respects. Here, the DoD never contemplated or initiated a procurement process. The Government did not issue an RFI, did not receive information from vendors, and did not plan to award any contract. From the DoD’s standpoint, it already possessed the SMS program it wanted to use, and there was no reason to acquire anything. VFA is requesting a competitive procurement in order to sell to the Government something it already possesses.

Plaintiff argues for the application of other standardization decisions where this Court has interpreted the breadth of § 1491 jurisdiction broadly. While these cases involved software standardization decisions by the Government, the Court finds that the similarities end there.

In Savantage, the Department of Homeland Security (“DHS”) conducted a solesource procurement for financial systems application software. DHS decided to standardize its software on the Oracle and SAP systems, signing a “Brand Name Justification” instead of conducting a competition. DHS then issued a solicitation for services to migrate to these systems. Plaintiff challenged the underlying standardization decision to use the software of Oracle and SAP, and this Court accepted jurisdiction of the protest. The Court found that DHS expanded its systems contracts with Oracle and
SAP without any competition for the new work. Specifically, the Court ruled that the “expansion of work fits squarely within the congressional definition of ‘procurement’ because it is an acquisition of additional property or services from Oracle and SAP.” The Court rightly held that acquiring new work from a private vendor is, by definition, a procurement action on the part of the Government.

Similarly, in Google, the Department of Interior “restricted competition exclusively to the Microsoft BPOS-Federal and the Microsoft Desktop and Service Software for messaging and collaboration solutions,” in effect standardizing on a single private vendor’s product instead of conducting a competition.

In all of these software standardization cases, the Government attempted to conduct asole-source procurement without any competition. The existence of a procurement triggered this Court’s jurisdiction.

VFA argues in the alternative that the Court should follow the reasoning of recent “insourcing” cases, positing that the DoD’s use of its own software to the exclusion of VFA and others constitutes “insourcing” and grants this Court jurisdiction. In all of the cited insourcing cases, the DoD was obligated to compare cost efficiency between civilian and contractor personnel under 10 U.S.C. § 129a (“The Secretary of Defense shall establish policies and procedures for determining the most appropriate and cost efficient mix of military, civilian, and contractor personnel to perform the mission of the Department of Defense.”).

Each of the cases involved a required cost comparison, and this fact alone distinguishes them from the present case. The fact that the DoD compared the cost of the private contractor to its own hiring of civilian personnel is a significant step in the procurement process, and one that was never taken in this case. Further, each of these cases required the hiring of civilian personnel, not just the use of existing personnel, and thus involved an acquisition process.

VFA has pointed to no regulation or guideline suggesting the DoD was under an obligation to compare the cost of the SMS to the software products offered in the commercial market. Because it was not so required, the Government did not solicit any commercial pricing proposals, did not issue an RFI, and did not conduct an internal review or comparison of products.

Allowing VFA to bring this case, where no procurement or cost comparison process was mandated or undertaken, would so broadly expand this Court’s jurisdiction as to eliminate any restrictions of the Tucker Act. Under VFA’s theory of
jurisdiction, every time the government chooses not to procure a good or service from a private contractor, and instead creates or develops something on its own, the providers of similar products and services would be able to challenge this decision, asking “why don’t you buy from us instead?” The Court is unwilling to open this “Pandora’s box.”

While reviewing the Distributed Solutions decision, I noted another twist on the question of what actions of a government are "inherently governmental" so as to not be delegatable to a non-government entity. Recall from the VFA decision the descriptions of facts in that case: "The Government delegated to a contractor the task of selecting private vendors to provide the software."

In Distributed Solutions, the Government sought

to dismiss the contractors' complaint for lack of jurisdiction, arguing that the protest was not viable, as the contractors were essentially protesting the award of subcontracts by a contractor with a federal agency, and not an award of a contract by an actual federal agency.

On appeal, the contractors contend that the trial court misinterpreted the basis for their complaint. Contrary to the focus of the trial court's analysis, the contractors are not contesting SRA's award of the subcontracts. Rather, they are contesting the government's decision to task SRA with awarding subcontracts for the purchase of software instead of procuring the software itself through a direct competitive process.

We agree, as the contractors' complaint confirms as much. For example, paragraph 8 of the complaint alleges that the government "improperly delegated an inherently governmental function." As another example, paragraph 52 of the complaint alleges that "[b]y initially soliciting information from prospective bidders, improperly inserting SRA into the procedure to do directly what the [government] could not do—select a vendor without being subject to the federal procurement laws—the [government has] attempted to circumvent the federal procurement laws and foreclose any attempt to challenge their actions."

Distributed Solutions is good authority not only for the broad, but limited, reach of the term "procurement", but also for the proposition that government contracting is an inherently governmental activity which cannot be hived off to the private sector.

The responsibility to consider all factors to make a determination of responsibility

It is too often said to hammer the point, but no government contract award should go to a bidder or offeror who is not responsible. The curious thing about the ABA Model Procurement Code and Guam's version of it is that there is no specific requirement that there be a written determination of responsibility. There is, however, a specific obligation to make a written determination of non-responsibility. (See ABA Model Code § 3-401(1) and Guam law 5 GCA 5230(a).)

What's a determination? Well, it's not definitively clear what a determination per se is, but the Regulations to the Model Code describe a written determination (handy to know because only written determinations are specifically required to be kept (Model Code § 1-201). According to R1-201.01.2, "each written determination shall set out sufficient facts, circumstances, and reasoning as will substantiate the specific determination which is made". It seems reasonable to expect, then, that an unwritten determination must be based in sufficient facts, circumstances and reasoning to substantiate the determination made, even if not put to hand or keyboard.

So what's responsibility, since, "before awarding a contract, the Procurement Officer must be satisfied that the prospective contractor is responsible"? (Model Regulation R3-401.04, Guam regulation 2 GAR § 3116(b)(4).) This is where it gets interesting, because finding responsibility is a judgment call, not easily second-guessed by other bidders, administrative tribunals or courts.

The Model Code, and Guam law likewise, define responsibility in their regulations. The relevant regulations describe responsibility in terms of "Standards of Responsibility", including such factors as availability of appropriate resources (plant & equipment, financial, personnel and otherwise), or ability to obtain them; satisfactory records of performance and integrity; qualification to do business (basically, a general business license), and responding to requests for information to corroborate those things.

The thing that has stood out in my interpretation of these standards is that, while they do not usually all come into play in any given case, the must all be considered in every case. The language of the regulation says, "factors to be considered in determining whether the standard of responsibility has been met include whether the prospective contractor has [met those standards]". The phrase "to be considered" is, to my thinking, mandatory, though I have not yet found a case that says precisely that.

But the following story seems to underline my theory. I have put it together from several indirect sources because I cannot yet find the primary source. As I present it, the story is pieced together from the following articles, and you need to read each for full context, and to find which part of any such article, if any, I borrowed:

GAO upholds FCi protest against security contract to USIS unit
USIS suffers another blow as GAO rules for competitor in wake of fraud allegations
GAO sustains protest of DHS contract to USIS
Bid Protest Ruling Deals Blow to Background Check Contractor
GAO questions fitness of USIS

    The U.S. Government Accountability Office (GAO) on Monday upheld portions of a protest filed by vetting firm FCi Federal Inc against a $190 million contract awarded to a unit of U.S. Investigative Services LLC (USIS) earlier this year by the Department of Homeland Security. The matter was released in a statement. GAO has not released the full protest decision because it contains sensitive acquisition information. GAO will release a redacted version in the coming weeks.

     FCi Federal has filed the protest, arguing that federal fraud charges filed against USIS LLC by the U.S. Justice Department for "dumping" 665,000 background check cases without conducting proper reviews should have disqualified it from winning the contract.

     The GAO said the Homeland Security Department should take another look before deciding whether contractor USIS is “presently responsible” enough to receive a field services contract at the United States Citizenship and Immigration Services.

     GAO concluded that “DHS’s affirmative determination of USIS’s responsibility was not reasonable because the agency failed to consider pending allegations of fraud by the awardee’s parent company under another federal contract,” GAO General Counsel for Procurement Law, Ralph O. White, wrote. “GAO recommended that [DHS] reasonably consider whether USIS can be viewed as a responsible contractor, taking into account USIS’s description of its relationship with its parent company, USIS LLC, as well as the specific allegations of fraud raised by the Justice Department against USIS LLC.

     Asked for a comment, a USIS spokesman said, “This ruling flies in the face of the outstanding ratings awarded to US Investigations Services, Professional Services Division Inc. during the contract award process. PSD won this contract from the incumbent contractor after a rigorous two-year competition, which followed long-standing government procurement procedures, and, since the contract award decision, USCIS has graded PSD’s performance on another significant contract as exceptional or very good across the board.”

     The Justice Department has accused USIS of cheating the government out of millions of dollars through a practice called “dumping,” in which the company purportedly claimed it completed background investigations that remained unfinished from 2008 to 2010.

     But USIS has said it has new leadership and has beefed up oversight at the company. It said the accusations involved a “small group of individuals” who are no longer with USIS. The company also said the Homeland Security contract went to USIS’ professional services division, which is separate from the background check operation.

     "GAO sustained FCi Federal's protest after concluding that DHS's affirmative determination of USIS's responsibility was not reasonable because the agency failed to consider pending allegations of fraud by the awardee's parent company under another federal contract," said Ralph White. "An affirmative determination of responsibility is the legal term that describes the threshold finding, inherent in the award of every federal contract, that the company awarded the contract has the capacity, ability, and requisite integrity to perform a contract for the government."

     The GAO ruling highlighted a portion of federal procurement law that says contractors must be “presently responsible” to get hired. In layman’s terms, that means contracting officers must attest to the fact that companies have the integrity, manpower and finances to complete the contract.

Emergency procurement: the last refuge of the sole source scandal

Pearson Lands Common-Core Contract in Mississippi After Testing Standoff

Mississippi officials have approved an "emergency procurement" contract with Pearson to administer common-core tests for the coming academic year—a step taken after a state board questioned the legality of the business arrangement and refused to sign off on it.

The one-year deal, which state officials said is worth $8.3 million, comes on the heels of the state's personal service contract review board telling the state department of education that it would reject a proposed, sole-source, four-year agreement because it believed competing proposals should have been sought from other vendors.

"To be approved as a sole source and awarded without competition, the service must be available from only a single supplier," said Deanne Mosley, executive director of the Mississippi state personnel board, which supports the contract review board, in a statement. "The company selected by New Mexico officials is not the only company which can provide these services."

Because of the board's stance, department of education officials say they had little choice but to approve the one-year contract to ensure that a portion of the state's schools, scheduled to give tests in December, could do so. The other options would have been to put forward competitive sealed bids or proposals, the agency said.

The board's decision angered department officials, who released a timeline of what they described as a lengthy and persistent effort to win approval of the contract.

The dispute in Mississippi has ties to a broader fight over a PARCC contract out of the state of New Mexico, a fracas that Education Week has been following closely.

In April, New Mexico officials approved a contract for PARCC test administration with Pearson, the only bidder on the project. A rival vendor, the American Institutes for Research, protested the bidding process, arguing that it improperly favored Pearson by bundling testing work that company was already providing PARCC with future duties administering the exam. AIR later sued in state court to stop the deal. After its appeal was rejected this summer by New Mexico's state procurement office, the AIR scaled back its legal fight. It is now suing to try to limit the scope of the contract to one year, and to have the remainder of the deal, which it says could last either four or eight years, re-bid.

Why does a deal hatched in New Mexico matter in Mississippi? The New Mexico contract establishes a price agreement with Pearson, which other PARCC states, including Mississippi can latch onto, if they want.

(The overall financial stakes of that Pearson vs. AIR fight could be massive in scale: In court documents, the AIR has said that if other PARCC states procure services for testing through the New Mexico deal, the contract could be worth $1 billion.)

Mississippi department of education officials, in statements, have argued that they have followed the proper process, over a period of several months, in seeking a sole-source contract with Pearson.

In their timeline describing those efforts, department officials said things were rolling along until they began meeting resistance from the contract review board.

Last month, when Mississippi's contract-review board told the department of education that the Pearson contract would not be heard by the board until September, the agency reacted with alarm—fearing the delay would jeopardize tests slated to be given to about 16,000 students in Mississippi schools later this year.

Mosley, in a statement, said that the contract-review board, after evaluating the New Mexico deal, became convinced it did not meet the legal standards of her state. Department officials had not shown that Pearson was the only company that could carry out the testing job, said Mosley, whose office declined further comment to Education Week.

"[I]t could not be approved as a legal and proper expenditure of taxpayer funds as it did not follow Mississippi procurement laws," Mosley said. "The New Mexico officials who selected this vendor to receive the contract did not take that into account and did not follow Mississippi laws in place to protect Mississippi taxpayers."

The department of education, however, disagrees.

A foundational principle of procurement is competition. As the Guam procurement law says (5 GCA § 5001(b)(6)), following ABA Model Procurement Code guidance, the state should "foster" competition. The first rule of Guam law is that the principles of procurement should be construed and applied to give effect to the laws. (§ 5001(a).) Thus, given a choice of 2 ways to assess a situation, the way the that gives effect to competition should be preferred to the way that does not. Giving away a contract by sole source when there is any question of availability of competition violates this first law.

Furthermore, Guam law understands that "emergency" is not a failure of planning, as does Federal law. Under Guam law, "emergency" is defined a "a condition posing an imminent threat to public health, welfare, or safety which could not have been foreseen through the use of reasonable and prudent management procedures...." (§ 5030(x).) Further, the emergency method of source selection requires "emergency procurements shall be made with such competition as is practicable under the circumstances" and limits the scope of the acquisition to "an amount of goods or supplies [not] greater than the amount of such goods and supplies which is necessary to meet an emergency for the thirty (30) day period immediately following the procurement". (§ 5215)

At the federal level, use of sole source, described under the general description as "Other Than Full and Open Competition" (see FAR SubPart 6.3), requires particular scrutiny and written justification. In particular, Subpart 6.301(c)(1), says "Contracting without providing for full and open competition shall not be justified on the basis of— (1) A lack of advance planning by the requiring activity...." Also see Part 7 for a description of planning principles and rules aimed to promote competition and Part 10, which requires market research to, among other goals, "Determine if sources capable of satisfying the agency’s requirements exist" (Subpart 10.001(a)(3)(i)).

None of that seems to have bothered the decision makers in the instances reported above.

Avoiding sole source scandals is such an easy step. Don't use it: just do the planning and market research, put a competitive method of source selection out, actually foster competition, and see what you get.

Oh, and provide incentive to do so.  Guam has an "ENFORCEMENT OF PROPER GOVERNMENT SPENDING" Act.   Under the act, any taxpayer has standing to bring action against any government officer or employee, including the governor, to recover for the government purse, any funds expended "without proper appropriation, without proper authority, illegally, or contrary to law."  (§ 7103.)

Girl talk

No offense intended to anyone, but this post is about confidential discussions, which immediately leads me to recall one of my favorite songs, called Girl Talk (get a taste of it here), by a sweet Hawaiian duet team that call themselves Hula Honeys.

It also happens that the articles cited here are written, in some cases co-written, by Attorney Michelle E. Litteken of the law firm Mayer Brown LLP, and collected on the Lexology website.  Attorney Litteken has produced a very informative collection of articles on the "problems" of engaging in discussions in the solicitation process of negotiated contract formation. I have already posted one such article here, and just came across these others, which add texture and color to this confusing and complex subject. Taken together, they provide a welcome tonic to the headache that comes from trying to sort out the ins and outs of permissible discussion.

Again, the caveat: read the whole article at the link. I cut, paste, leave out important stuff, paraphrase, rearrange and otherwise use great license to present articles on this post, doing them no justice, I am sure, but I do so with the best intention of bringing the subject to you, for you to discover and discern. Here, I have left out all discussions of cited cases, and that must be read to appreciate the nuances the cases deal with.

When does an agency cross the line from clarifications to discussions?

FAR 15.306 defines clarifications as “limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.” The FAR does not expressly define “discussions,” but it explains that “discussions” include negotiations that “are undertaken with the intent of allowing the offeror to revise its proposal.” The FAR used to limit clarifications to communications about relatively small matters, such as eliminating clerical mistakes or minor irregularities. However, the rules were revised in 1997 to allow a free exchange of information without requiring discussions. Decisions from the GAO and CFC reveal that the two protest forums apply the FAR provisions differently, with the CFC appearing to embrace a more substantial exchange of information that can still be characterized as clarifications.

Both GAO and the CFC recognize that, if an offeror is given an opportunity to revise its proposal, the agency has engaged in discussions. Several GAO and CFC cases refer to this as the “acid test.” The tough cases come when either (i) questions (often called “clarifications” by the agency) seek information that is necessary to determine technical acceptability of the proposal, or (2) the agency seeks a substantial amount of “clarify[ing]” information and an offeror’s response approaches (or crosses) the line of changing the proposal.

Don’t be misled: what contractors should know about misleading discussions

Discussions can be useful to contractors because the questions asked and issues raised can direct an offeror to areas of its proposal needing improvement. In some situations, discussions can help a contractor turn an unacceptable proposal into a successful offer. However, information provided by an agency during discussions can also lead an offeror in the wrong direction. If the agency selects another proposal, the disappointed offeror may file a protest and argue that the discussions were misleading. But what qualifies as misleading discussions? How specific does an agency need to be when it engages in discussions? These are issues that contractors should be mindful of as they engage in discussions—and that they must understand to frame potential protest issues when they are not the prevailing offeror.

Although the FAR does not define misleading discussions, decisions from GAO and CFC provide guidance on when discussions are misleading. Both forums have stated: “An agency may not inadvertently mislead an offeror, through the framing of a discussion question, into responding in a manner that does not address the agency’s concerns; or that misinforms the offeror concerning its proposal weaknesses or deficiencies; or the government’s requirements.”

To succeed in a misleading discussions protest, the protester must show that the allegedly misleading discussions were prejudicial, i.e., made its proposal less competitive. For example, in Tech Systems, Inc., the protester claimed that the agency misled it by focusing on its proposed technical approach, which led the protester to overemphasize management, but refused to discuss pricing, which proved to be the determinative factor in source selection. The court rejected the protester’s argument that the discussions misled it into proposing a high-cost approach because the protester did not show that is costs were higher because of the management-centric approach the agency purportedly encouraged it to propose.

As is the case in challenges to the meaningfulness of discussions, the amount of specificity required to avoid misleading an offeror is highly fact dependent. Contractors should be aware of an agency’s obligation to refrain from misleading offerors as they engage in discussions and litigate bid protests.

What is required for discussions to be meaningful?

It’s basic procurement law that, when an agency engages in discussions with offerors under FAR Part 15, the discussions must be meaningful. FAR 15.306, which provides for exchanges with offerors after receipt of proposals, does not specifically define “meaningful” in the context of discussions. Instead, the FAR states that an agency must discuss “deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond.” GAO and the CFC have based their analyses of what discussions qualify as meaningful on this FAR provision. Issues that arise with respect to whether discussions were sufficiently meaningful include:

• When is a weakness significant?
• Do weaknesses that are discriminators have to be discussed?
• How specific does the agency need to be?
• Does an agency need to discuss a weakness if it first appears in an offeror’s FPR?

Since the FAR only requires that deficiencies and significant weaknesses be discussed, and because there is no obligation to discuss garden-variety weaknesses within a proposal, a protest ground regarding the failure to discuss such issues (absent an unequal discussions issue) would be dead on arrival.

The FAR (15.001) defines a “weakness” as “a flaw in the proposal that increases the risk of unsuccessful contract performance.” A weakness is “significant” when the concern “in the proposal is a flaw that appreciably increases the risk of unsuccessful contract performance.” So the distinction between a weakness and a significant weakness turns on the judgment of whether there is an “appreciable” effect on the risk of unsuccessful contract performance.

There are numerous bid protests in which offerors’ proposals are closely matched and a weakness that was not discussed (or group of such weaknesses) becomes the discriminator. Substantial precedent makes clear that the fact that a weakness eventually becomes the deciding factor does not create an obligation to conduct discussions.

In cases in which there is no dispute about the significance of a weakness, the parties may disagree over whether the discussions directed the offeror to the area of its proposal needing improvement. The boilerplate legal concepts applied by the CFC and GAO are clear. An agency is not required to “spoon feed” offerors during discussions; instead, the agency is merely required to lead offerors into the areas of their proposals requiring amplification or correction. Consistent application of these rules can be tricky.

In sum, although the failure to engage in meaningful discussions is a common protest ground, there are nuances in the law that may add complexity to what seems like a familiar argument.

“That wasn’t fair!”—protests based on unequal discussions

The principles of fair and equal competition drive many aspects of procurement law and policy. These principles are evident in the FAR’s requirement that when an agency engages in discussions with offerors, the agency cannot “engage in conduct that [f]avors one offeror over another.” Discussions often occur as part of the procurement process, and can be beneficial to the agency and offerors. However, discussions have their drawbacks. If an unsuccessful offeror believes that other offerors were given better direction or provided with more information, discussions can provide the basis for a protest based on purportedly unequal discussions.

At first glance, the rule that discussions between the Government and offerors must be equal and not favor one offeror over another seems clear. However, application of the rule can be complicated because agencies are not required to conduct identical discussions with offerors, and because discussions must be tailored to offerors’ different proposals. As such, when GAO or the CFC is faced with a protest alleging unequal discussions, it is not a simple matter of determining how many questions were asked, how long discussions were conducted, or the type and number of issues that were addressed. Instead, the question is whether the agency’s questions or statements made during discussions gave an offeror an unfair advantage.

One difficult aspect of unequal discussions issues is that in most cases, the issues can only be understood by bid protest counsel examining an administrative record released under a protective order (PO), and the issues usually cannot be discussed in any detail with the client (as doing so would be inconsistent with the PO).

When considering pursuing a protest, contractors should be mindful of an agency’s obligation to conduct equal discussions. It is important to remember that the number of questions raised or issues addressed is not decisive regarding whether discussions were unequal. Instead, contractors must consider the substance of the discussions—and whether they have any basis to believe the agency provided another offeror with an unfair advantage.

Finishing off her series is this reported on Mondaq: Discussions Round-up: Recent Protests Challenging Discussions

As this series has shown, disappointed offerors often raise protest allegations related to discussions. Although protesters frequently allege that discussions were unequal, misleading, or not meaningful, challenges based on these allegations can be difficult to win. In researching decisions to include in this round-up, I found only two decisions issued in 2014 sustaining a protest based on a discussions issue: Kardex Remstar LLC, which was discussed in the series' first post, and Marathon Medical Corp.). Of course, although many of the protests discussed didn't result in sustained protests based on the facts presented, they often provide useful insights for contractors in developing new claims and are worth close study.

When Does an Agency Cross the Line from Clarifications into Discussions?

The 2014 Windstream Communications protest followed a 2013 protest in which Windstream challenged the exclusion of its proposal from the competitive range. The agency took corrective action, and during the reevaluation, the agency contacted Windstream about its pricing. After reevaluating Windstream's proposal, the agency assessed two deficiencies under the "technical and management approach" subfactor and determined that Windstream's proposal was unacceptable. Windstream argued that the agency failed to engage in meaningful discussions because it raised concerns about Windtsream's prices but not the technical and management approach deficiencies. The Agency argued that it was not required to address the deficiencies with Windstream because it did not engage in discussions – the exchanges were clarifications. Windstream attempted to bolster its claims that the exchanges were discussions by pointing to the fact that it had submitted new detailed pricing information in response to the agency's questions – thereby revising its proposal – the "acid test" for discussions. However, in its submission to the agency, Windstream wrote: "We did not change any of our prices.". GAO denied the protest, finding that although the format of the pricing information was different, the elements and its proposed price were the same. As such, the exchanges were clarifications – not discussions – and the agency was not required to address the proposal's deficiencies.

What Does It Take for Discussions to Be Meaningful?

In our What Is Required for Discussions to Be Meaningful? post, we discussed Sentrillion Corp., a decision in which GAO sustained the protest because the agency failed to raise its concerns about the completeness of some of Sentrillion's business license applications. Based on GAO's recommendation, the agency reopened the competition and issued discussion letters. In its letter to Sentrillion, the agency stated that if Sentrillion was proposing to partner with other companies to perform the work, it must submit evidence of a partnership agreement along with any business licenses or applications. During the reevaluation, the agency deemed Sentrillion's proposal technically unacceptable because the teaming agreements it had submitted—which provided that the parties would negotiate a subcontract if Sentrillion was awarded the contract—were not binding partnership agreements. Sentrillion protested at the CFC, asserting (among other protest grounds) that the discussions were not meaningful because the agency never told Sentrillion to submit binding subcontract agreements or that teaming agreements were unacceptable. The court denied the protest, finding that the discussion letter adequately conveyed the need for finalized agreements.

What Constitutes Unequal Discussions?

In Bannum Inc., the agency determined that because the awardee was rated slightly better for past performance and technical/management, the benefits of its proposal justified paying a three percent price premium. During discussions, the agency had told the awardee that its proposed price was high but did not comment on the protester's pricing, and the protester asserted that discussions were unequal. GAO denied the protest, stating: "unless an offeror's proposed price is so high as to be unreasonable or unacceptable, an agency is not required to inform an offeror during discussions that its proposed price is high in comparison to a competitor's proposed price, even where price is the determinative factor for award." GAO stated that the requirement to conduct discussions does not depend on how an offeror's proposed price compares to the Independent Government Estimate (IGE). However, in support of its decision, GAO noted that the protester's price was the lowest received and less than the IGE–and the awardee's initial proposed price had been above the IGE.

No Matter What, a Protester Must Show Prejudice

As is the case in all bid protests, prejudice is a central requirement in challenging the way in which an agency conducted discussions. In some instances, GAO or the CFC may not address whether the agency violated the FAR provisions governing discussions because the protester failed to demonstrate how it was prejudiced by the alleged violation. For example, in Inchape Shipping Services, the protester argued that the agency engaged in unequal discussions because it allowed the awardee to revise its proposal by replacing the individual proposed for a key personnel role with another employee after the individual it initially proposed was placed on leave. GAO determined that it need not decide whether the change in key personnel constituted discussions because the protester had not demonstrated competitive prejudice.

On that last sentence about no competitive prejudice, I note that the notion of competitive prejudice is hard in the first instance to get hands around.  But it is easier once the concept is grasped. 

In this case, for instance, the protestor's competitor was allowed to change the name of a person with a key role to play in the performance of the contract. Whether a bidder or offeror has the capability to perform is an issue of "responsibility". In the framework of ABA Model Procurement Code law, such as is Guam's, "capability" is one of the standards of responsibility and need not be finally determined until just before award.

Bidder or offeror capability is not an issue that determines whether the bid or offer is responsive. Only issues concerning responsiveness affect bidder prejudice, and only if the matter is material. As the Guam regulations state, "Minor informalities are matters of form ... or insignificant mistakes that can be waived or corrected without prejudice to other bidders; that is, the effect on price, quantity, quality, delivery, or contractual conditions is negligible." (2 GAR § 3109(m)(4)(B).) 

Thus, when the government determines responsibility, it is given great deference to make that judgment call about the person it wants to do business with; but, when it is determining whether a bid or offer proposes to provide the very thing or performance specified, to make sure everyone is proposing, say, apples if it is apples the government wants, the government must reject a bid or offer that proposes oranges, and it prejudices the other bidders if the government goes ahead and chooses an orange.   

Matters of responsiveness are scrutinized more carefully and early in the game, by the time bids and offers are opened or considered, and cannot be waived or altered unless the matter is immaterial or negligible.

Issues dealing with whether the government wants to or should deal with a particular bidder or offeror relate to responsibility.  Issues dealing with price, quantity, quality, delivery or contractual terms or other specifications describing the product or service required to be delivered are issues of responsiveness.  Prospective contractor responsibility must be distinguished from product or service accepetability and responsiveness.

Creating new ideas with a few old ones: competition, market research, planning

New Pentagon Procurement Rules Seek to Create Culture of Innovation

The U.S. military is in a technology rut. and although the Pentagon has far and away the world's biggest arms budget, military equipment is showing its age and efforts to modernize are sluggish at best.

The "better buying power" procurement rulebook the Pentagon unveiled, BBP 3.0, is a call to arms to engineers, researchers and technologists. "It's motivated in part by my continuing concern with technological superiority and the fact that our capabilities in the world are being contested by others — people developing, modernizing, and building systems that threaten our superiority," said Undersecretary of Defense for Acquisition, Technology and Logistics Frank Kendall.

Kendall has been sounding alarms about the U.S. technology slump for years, and believes the Pentagon must rev up the innovation engine so it can deploy more advanced weaponry in the coming years. Also behind this new emphasis on technological achievement is Deputy Defense Secretary Robert Work, who is leading a separate study on military technology gaps that will shape future budgets.

BBP 3.0 is less about how the Pentagon acquires products and services, and more about what it needs to buy. In that vein, the Pentagon will more closely monitor the military services' research-and-development programs to ensure they are investing wisely, said Kendall.

One of the reasons the military is falling behind the technology curve is that weapons systems are not engineered for easy upgrades. So what might be cutting-edge technology at the outset of a program becomes outdated by the time it gets in the hands of military service members. Kendall does not see weapon development cycles getting much shorter, but he wants to be able to update weapon systems in response to emerging threats, without having to start over with new a design. He will direct procurement officials to stay in touch with the intelligence community and keep up with technology advances around the world that could potentially undermine U.S. weapons systems. Kendall will ask intelligence analysts to help Pentagon program managers understand what enemies might be doing to counter U.S. technology, "so we can anticipate that and account for that in our designs."

Some of the buzzwords in BBP 3.0, such as “technology insertion” and “refresh,” are not new, but “need to be emphasized,” said Kendall. “We have pushed for modular, open systems for a long time. We've had mixed success with that,” he said. “I think a lot of it has to do with successful management of intellectual property and managing design interfaces.”

Productivity has to increase both in industry and government, he said. The Pentagon believes that competitive market forces motivate suppliers to improve products and lower prices. "We're going to continue to emphasize incentive-type contracts," said Kendall. "Whether they're cost-plus or fixed-price, you tend to get the same type of improved results in either case."

The Defense Department is often criticized for favoring a handful of top prime contractors and not opening up the market to outsiders. Kendall said one of the goals of BBP 3.0 is to "lower the barriers" to competitors. This is imperative as most of the R&D investment now comes from the private sector. "There are a lot of technologies that are moving more quickly in the commercial world than they are in the military-unique technology world," Kendall said. "We want to be able to capitalize on them as much as we can." He suggested it would benefit the Pentagon to seek sources of technology globally and not just in domestic markets.

Many of the initiatives in BBP 3.0 aim to motivate the private sector to invest in military-relevant R&D and to help the Pentagon avoid costly procurement fiascos.
A long-standing gripe of defense contractors is that they have little time to respond to DoD solicitations, particularly those for complex systems. Kendall will be directing program officials to release requirements in draft form to industry early, to give contractors a chance to start to prepare for future acquisitions, “and also to give us some feedback on those requirements from the point of view of costs and technical feasibility and risk.”

Kendall insists that financial incentives are what ultimately influence contractor behavior. He insists the Pentagon will increase contract awards based on “best value,” as opposed to picking the lowest cost bid. “We're going to continue the practice of letting industry know what we're willing to pay for better performance so they can bid intelligently.”

The Defense Department has over the years wasted billions of dollars on programs that, from the outset, were doomed because the technology promised by the contractors was out of reach. Under the current system, contractors are rewarded for gee whiz Powerpoint slides rather than for being straight about the art of the possible. Kendall wants to change that by involving contractors earlier in the cycle and getting candid assessments of what is realistic and financially doable.

Analysts and industry insiders are skeptical that documents like BBP 3.0 will substantially change the status quo. The tenets of BBP 3.0 are motherhood and apple pie, but turning them into actionable policies will be a tall order, they contend. The highly bureaucratic procurement system — which emphasizes oversight, monitoring, reporting and top-down direction — is a hindrance to innovation, said military analyst Daniel Gouré, of the Lexington Institute, a think tank funded by top defense contractors.

“Russia and China are catching up technologically not because they are smarter or more inventive but because they are unencumbered by an archaic acquisition system,” he wrote in a blog post. “The real game changer would be if the Pentagon could acquire and field new capabilities in half the time and at reduced cost. Of equal significance would be using commercial best practices in maintenance, sustainment and supply chain management to lower the life cycle costs for military systems.”

He credits BBP 3.0 for promoting greater use of modular and open systems architectures and for suggesting contractors should be informed about military requirements earlier in the acquisition process. Gouré also gives Kendall kudos for seeking to remove obstacles to procuring commercial items from the global market.

Industry insiders have argued for years that, to be more nimble, the Pentagon should take a page from the book of one of its own organizations, the Defense Advanced Research Projects Agency. DARPA has been ahead of the rest of the Defense Department in recruiting new vendors and pushing the technology envelope, industry analysts point out. Its productivity also is significantly higher. With a $3 billion budget, DARPA can do the job with 1,000 people. The military’s major laboratories have smaller budgets but much larger workforces. Until the Pentagon tackles its bloated overhead, analysts said, it will be financially difficult to invest in equipment modernization.

Experts also question the Pentagon’s avowed commitment to market competition as the ticket to lower costs and better technology. Most of the Pentagon’s technology dollars are captured by a small group of prime contractors, and these firms likely will continue to have a stranglehold on the available budget. That puts greater pressure on the rest of the industry and on smaller firms that generate much of the innovative technology the Pentagon wants. Having the preponderance of defense R&D dollars concentrated in a handful of firms with huge overhead costs is unproductive, one executive noted.

Small businesses are now a hotbed of innovation, but getting their foot in the door is a Sisyphean climb. It is not clear how BBP 3.0 will change that reality.

Dealing with the defense procurement system is a “battle we face every day,” said Sean Varah, CEO of MotionDSP. The Silicon Valley firm develops image processing software used by military and intelligence analysts across the government. MotionDSP’s software is an example of a product the government didn’t know it needed until it saw it.

There are thousands of technologies funded by the private sector that might be of use to the military, if only government buyers knew where to look. “They need to be able to buy more readily available commercial products,” Varah said. The Defense Department pays contractors hundreds of millions of dollars to write government-owned software from scratch that becomes obsolete within months, while better and cheaper products already exist, he said. “Private funding is investing in commercial R&D and creating products, at no taxpayer cost.”

The key personnel difference between responsiveness and responsibility

Sometimes the difference between contractor responsibility and bid responsiveness can be slippery to catch. This is particularly true when services rather than things are being procured.

Under the ABA Model Procurement Code regime, as adopted on Guam, the determination of responsibility is made by examining certain standards of responsibility. Among relevant inquiries is the judgement of the prospective contractor's ability to perform the contract, or the ability to obtain the necessary requirements to perform when performance comes due. Capability is to be determined before award of contract, and can be assessed through an inquiry process after bids or offers are opened.

Responsiveness, however, means submitting all material requirements to provide the government the exact thing or service that the solicitation demands. Responsiveness is answered from data submitted in the bid or offer, and is not curable by submission of revised bids or offers after opening.

It is fundamental that matters of responsibility cannot be transformed into issues of responsiveness by requiring submission of evidence of responsibility in the bid or offer.

These general principles are often reflected in procurement regimes other than the ABA Model Code, such as the US federal acquisition rules for request for task order proposals ("RTOP"), as the following decision of the GAO indicates. Again, I remind readers to read the original material at the link; that which follows is edited in ways that may distort the actual case, and often excludes additional issues of interest.

Matter of: Paradigm Technologies, Inc., File: B-409221.2; B-409221.3, August 1, 2014

The RTOP was issued pursuant to Federal Acquisition Regulation (FAR) § 16.505 to holders of MDA Engineering and Support Services multiple award contracts. The solicitation provided for the issuance of a cost-plus-fixed-fee task order for various strategic planning and financial support services for a base year and two option years.

Offerors were informed that the task order would be issued on a best-value basis, considering technical, past performance, small business utilization past performance, cost, and small business utilization. The technical factor was considered to be significantly more important than all other factors, and consisted of four, equally-weighted subfactors: approach, labor mix, key personnel, and transition.

As relevant here, with respect to the key personnel subfactor, offerors were required to propose as key personnel a contract program manager and a task order lead. In this regard, offerors were instructed to submit resumes for these two key personnel, as well as for any subject matter experts that were proposed.

MDA received proposals from Paradigm (the incumbent) and Booz Allen, which were evaluated by the agency’s technical evaluation team, past performance evaluator, and cost/price evaluation team. The technical evaluation and past performance teams assigned adjectival ratings under the evaluation factors for each proposal, supported by a narrative that identified strengths, significant strengths, and weaknesses. MDA conducted several rounds of discussions with the offerors, and requested final proposal revisions (FPR). Booz Allen submitted its FPR on July 22, 2013, in which it provided resumes for the contract program manager (Ms. G) and the task order lead.

On August 5, Booz Allen’s proposed contract program manager, Ms. G, notified Booz Allen that she had accepted a position with another firm. On October 23, MDA selected Booz Allen for issuance of the task order, and on October 28, Booz Allen notified the contracting officer of Ms. G’s departure and proposed to provide Mr. H as the new contracts program manager.

Following a debriefing, Paradigm protested to our Office on November 4, arguing, among other things, that Booz Allen proposed a key person, Ms. G, that Booz Allen knew would be unavailable. MDA informed our Office that it would reevaluate proposals and make a new selection decision. We dismissed the protest as academic.

In the reevaluation of FPRs, as relevant here with respect to the evaluation of Booz Allen’s proposal under the key personnel subfactor, the technical evaluation team noted that, “on information and belief,” Booz Allen’s proposed contract program manager, Ms. G, was no longer employed by Booz Allen.

Although the evaluation team did not change Booz Allen’s satisfactory subfactor rating, it assigned a weakness for Booz Allen’s failure to provide one of the two required key personnel. In this regard, the evaluators stated that the risk regarding Booz Allen’s ability to satisfy key personnel requirements “is mitigated to some degree by the fact that [Booz Allen] has the demonstrated ability to recruit and hire qualified personnel to fulfill the Key Personnel ([contract program manager] in this case) duties.”

The selection authority recognized that Paradigm’s proposal was rated higher than Booz Allen’s under the technical and past performance factors, and that the technical factor was significantly more important than any other factor. The selection authority, however, concluded that the difference between the two technical proposals was not as significant as the adjectival ratings implied. In this regard, he also noted that, although Paradigm’s proposal presented virtually no performance risk to the government, Booz Allen’s proposal presented a low to moderate performance risk. The selection authority acknowledged that Paradigm’s highly-rated proposal was worth paying some amount of cost premium, but concluded that the merit of Paradigm’s proposal was not worth the substantial cost premium.

The selection authority again selected Booz Allen to receive the task order. After a debriefing, Paradigm protested to our Office.

As explained below, we sustain Paradigm’s challenge to the agency’s evaluation of Booz Allen’s contract program manager.

Paradigm argues that Booz Allen’s FPR was technically unacceptable, complaining that MDA in its reevaluation of proposals knew that Booz Allen’s proposed contract program manager, Ms. G, was no longer employed by the firm and would not be available to perform under the task order. Protest at 22. Paradigm contends that, because offerors were required to propose a contract program manager as a key person, Booz Allen’s lack of a contract program manager failed to satisfy a material solicitation requirement. Paradigm also argues, in the alternative, that MDA allowed Paradigm after the submission of FPRs to substitute a new contract program manager, in effect reopening discussions with only Booz Allen.

It is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award.

The proposal of a contract program manager is a material solicitation requirement, as offerors were required to identify a specific individual for this key position by submitting a resume. When Ms. G left Booz Allen’s employment, Booz Allen’s FPR no longer satisfied this material requirement.

Although MDA considered this failure to be a weakness [affecting responsibility], it was in fact a deficiency. A weakness generally reflects a proposal flaw that increases the risk of unsuccessful performance, while a deficiency reflects the failure of a proposal to meet a material requirement.

Our concern here is with MDA’s failure to recognize that Booz Allen’s revised proposal could not be viewed as satisfying the solicitation’s key personnel requirements. That is, having been informed prior to its reevaluation of proposals and making a new selection decision that Booz Allen’s FPR no longer satisfied requirements concerning a key person, MDA could not simply accept Booz Allen’s revised proposal and consider the matter a weakness.

We recommend that MDA either reject Booz Allen’s proposal as unacceptable or reopen discussions, obtain revised proposals, and make a new selection decision. If Booz Allen’s proposal is rejected or Paradigm’s proposal is found to offer the best value to the government, the agency should terminate Booz Allen’s task order for the convenience of the government and issue a task order to Paradigm. We also recommend that the protester be reimbursed its reasonable costs of filing and pursuing the protest, including attorneys’ fees.

This case reflects that, just as a solicitation cannot convert a matter of responsibility into an issue of responsiveness, nor can an evaluator convert a material specification factor into a matter of responsibility.

The key to understanding this case is to focus first on what it was that the government demanded to receive. Here, the government demanded a particular service. It sought to acquire "various strategic planning and financial support services." Having sought services, it set parameters for the services it specifically wanted. This was not a case where the services were merely incidental to what was required. These services were precisely what the government wanted to acquire. Responsiveness speaks to the question, does this bid or offer give the government what it wants. Responsibility speaks to the question, does this bidder or offeror have the capability and integrity to give the government what it wants under the contract terms required for performance.

Thus, when the government described the specific services it wanted, it wanted to know who that service provider was and the qualifications of that person. When that person was not identified in the request for final proposals, the proposal was unacceptable, which is to say nonresponsive. 

The award was then made to the nonresponsive offeror anyway, because the agency changed focus, saying that while the offeror failed to have the thing needed at the time of submission of final proposals (the functional equivalent to bid opening), the offeror had the ability to obtain that requirement later.  

Having the ability to become capable of performance when it is required is an element of responsibility, however, not responsiveness.  It was error to treat an issue of responsiveness in the manner of determining responsibility. Weaknesses in evidence of responsibility can be cured after bid opening, up to time of award, or even required performance in some cases, whereas acceptability, that is responsiveness, is determined at bid opening and cannot be cured afterwards.

The GAO stated the obvious (but perhaps not so obviously): that a nonresponsive bid cannot be cured with a responsibility analysis.

"The proposal of a contract program manager is a material solicitation requirement [in a solicitation for "for various strategic planning and financial support services"], as offerors were required to identify a specific individual for this key position by submitting a resume. ... Although MDA considered this failure to be a weakness [affecting responsibility], it was in fact a deficiency. A weakness generally reflects a proposal flaw that increases the risk of unsuccessful performance, while a deficiency reflects the failure of a proposal to meet a material requirement."