A wise man once said, “I am rather inclined to silence, and whether that be wise or not, it is at least more unusual nowadays to find a man who can hold his tongue than to find one who cannot.”
Immigration and Customs Enforcement (“ICE”) recently learned the value of silence the hard way when it accidentally conducted unequal discussions with contractors.
Discussions is government contracts legal jargon for a simple concept—negotiation. Discussions provide fertile ground for protests, so agencies frequently make awards without discussions. That’s why it was surprising when ICE managed to unintentionally conduct discussions during a simplified acquisition.
Academy Leadership, LLC, B-419705.2 et al. (Sept. 30, 2021), involved an ICE procurement for staff rides around Gettysburg. The procurement was conducted using simplified acquisitions procedures, which were indented to make the procurement more streamlined. That efficiency was never realized.
For those that are curious, a staff ride is a guided tour of the Gettysburg battlefield that encourages participants to critically evaluate the strategic decision making and leadership exhibited by commanders. According to GAO, “[t]he training requires the expertise of licensed battlefield guides capable of blending the history surrounding the Gettysburg National Park with relevant leadership-based competencies to further the development of ICE supervisors, managers, and executive staff.”
We pick the story up during a reevaluation. Academy, an unsuccessful offeror, had protested the award to Lincoln (not that one). ICE elected to take corrective action, including reevaluating proposals.
ICE’s reevaluation determined that Lincoln proposal was superior. It received high marks under the non-price evaluation factors. That advantage came at a price—Lincoln’s proposal was also significantly more expensive.
Academy’s proposal was less favorably rated, but still presented a solid solution. It received middle of the road ratings under the non-price factors. Nevertheless, Academy’s proposal did come with an advantage—its proposed price was significantly lower than Lincoln.
ICE contacted both offerors to inquire about pricing. The language ICE used in these communications would ultimately amount to discussions.
In its email to Lincoln, ICE explained “[w]hile evaluating your proposal, your pricing was significantly higher than the other proposals.” It subsequently asked, “[i]s this the best offer that you can provide?”
ICE’s email to Academy was more straight forward: “Is the pricing that you submitted for the Gettysburg program the best offer that you can provide?”
In response, both offerors submitted reduced pricing. Lincoln reduced its pricing to $4,469,450 and Academy reduced its pricing to $2,923,800.
Academy protested. It alleged that ICE conducted discussions. Moreover, those discussions were unfair because Lincoln was notified of issues impacting its awardability and was allowed to revise its proposed price.
GAO agreed. Taking the issues one at a time, GAO first evaluated whether discussions had occurred at all. As GAO explained, “[i]n situations where there is a dispute regarding whether communications between an agency and an offeror constituted discussions, the acid test is whether an offeror has been afforded an opportunity to revise or modify its proposal.” This acid test was met. ICE had communicated with Lincoln and allowed it an opportunity to revise its price. Thus, discussions occurred.
GAO then addressed whether discussions were conducted fairly. In this regard, GAO explained that “discussions, when conducted, must be meaningful; that is, discussions must identify deficiencies and significant weaknesses in an offeror’s proposal that could reasonably be addressed so as to materially enhance the offeror’s potential for receiving award.” Thus, discussions must advise each offeror of the unique features of its proposal that diminish its likelihood of award.
In the case of Lincoln, the only issue with its proposal was price. ICE raised this issue with Lincoln in its email. Academy, however, received lower ratings under its technical proposal but offered a lower price. Nevertheless, Academy was not advised of the issues with its non-price proposal. By instructing Lincoln about its pricing, but not providing Academy with information about its technical approach, ICE engaged in unfair discussions. Thus, GAO sustained the protest.
GAO’s decision in Academy is an example of how imprecise language and cavalier communications can have unintended consequences. ICE wanted to obtain the best pricing, but the language it used gave an unintended advantage to Lincoln. This was unfair.
Unfortunately for ICE, its communication with Lincoln has made this simplified acquisition anything but simple.
By the way, that wise man quoted above ironically gave one of the best speeches of all time at Gettysburg. It was Abraham Lincoln (that one).