Negotiated acquisitions

Army Lawyer, Jan, 2007 by Andrew S. Kantner

In looking at Cogent's proposal, the GAO focused on the Army's evaluation of a proposed scanner that the Army evaluated as too slow for the requirement. Cogent's initial proposal involved a critique of the Army's minimum requirements for the scanner. (40) After the Army reopened the competition, Cogent substituted another scanner which met the Army's requirements but did not change the overall unsatisfactory rating. Subsequent discussion letters did not mention the scanner problem. (41)

The proposal evaluation board (PEB), in its evaluation of Cogent's proposal, seemed to focus on the delay caused by Cogent's protests, (42) noting that the board found it odd that Cogent's initial protest stated that a scanner could not be found, but the revised proposal contained an allegedly compliant product. (43) Unfortunately for the Army, the hearing testimony indicated that the Army failed to realize that Cogent had substituted a scanner which met the Army's requirements. Since the Army had labeled this area as a significant weakness, yet the Army never raised the issue in discussions, the GAO opined that the Army had not conducted meaningful discussions with Cogent. (44)

Reopening Discussions

Ford Tough

In Al Long Ford, (45) the GAO informed the Army that it must reopen discussions if the agency realizes, while reviewing an offeror's final proposal revision that a problem in the initial proposal was vital to the source selection decision but not raised with the offeror during discussions. The U.S. Army Tank-Automotive and Armaments Command (TACOM) issued a RFP for light utility trucks and accompanying spare parts and manuals to be delivered in Iraq. (46) The solicitation informed offerors that this was an urgent requirement and that timely delivery and performance was of the essence. (47) The RFP indicated that timeliness would be based on delivering the minimum guaranteed quantity within one hundred twenty days after receipt of the order. The agency would conduct a risk assessment on whether an offeror could meet the proposed delivery schedule. (48)

The TACOM conducted discussions and received final revised proposals (FRP) for seven offerors. Al Long Ford proposed a delivery period of one hundred and ten days and its total price was $207,824,347. The Army evaluated the proposed schedule as a "very high risk." (49) The source selection evaluation board contacted Ford's regional marketing manager who informed the Army that Ford would need ninety days of production lead time for any truck deliveries. The Army then added thirty-seven days to Al Long Ford's one hundred and ten-day delivery schedule. (50)

American Equipment Company, the winning proposal, proposed one hundred and fifty days and its total price was $191,443,169. The source selection authority, in its cost-technical tradeoff, determined that three earlier days of delivery did not warrant's Al Long Ford's additional price. (51)

Al Long Ford filed a protest arguing that its delivery schedule should not have been recalculated since it intended to comply with its proffered schedule. In addition, the company should have been given a chance to validate its schedule before the Army conducted its recalculation. (52)