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GAO decision underscores importance of taking notes during negotiations

In June 2018, CACI, Inc., challenged the award of a $56 million task order to another offeror. CACI argued in part that the procuring agency, the General Services Administration (GSA), had engaged in unfair and misleading oral discussions with the protestor as compared with the eventual awardee, Digital Management, Inc. (DMI).

CACI’s position

CACI argued to the Government Accountability Office (GAO) that GSA directed CACI to provide limited revisions to its proposal whereas GSA solicited from DMI broader proposal revisions.

The protester asserted that the only area of its proposal where GSA asked CACI to submit anything beyond “confirmation” or “clarification” of its proposal was additional price discounts for option years 3 and 4. The protester argued that by contrast GSA invited the awardee to provide broader revisions to its proposal, including a rationale for its staffing hours and substantiation for its discounts across all of its rates.

CACI alleged that had it been specifically advised that it, too, could broadly revise its proposal, it would have reduced its final price.

GAO’s conclusion

GAO concluded that the agency did not engage in unfair or misleading discussions. GAO noted that the procurement record did not evidence that the agency limited the scope of CACI’s final proposal revisions to those proposal areas expressly addressed during discussions. Although the protester broadly averred that this was the case, the agency’s contemporaneous notes of the discussions did not reflect the agency had conveyed such a restriction to the protester. In denying the contention, GAO concluded that CACI had no independent evidence GSA had expressly limited the extent of CACI’s permissible proposal revisions.

Observations

When agencies engage offeror in pre-award discussions, especially oral exchanges, they commonly do so under tight deadlines where the exchange can be as short as a few minutes. In telephone discussions, offerors are frequently pressed for time and so focused on the content of discussions that they can overlook the essential step of taking notes. In this case, GSA had taken notes but CACI had not. Thus, relying on the agency’s contemporaneous notes, and faced with no contrary proof, GAO correctly ruled in GSA’s favor.

Offerors during oral discussions must be prepared for the prospect that agencies and offerors might have different recollections (almost always in good faith) of what transpired during oral discussions (be they face-to-face or telephonic). As happened in CACI, Inc.-Federal, the success or failure of the protest can ride on the seemingly mundane issue of note taking.

Recommendations

To avoid such issues, the following process is recommended:

  1. A member of the offeror’s team should be the designated note taker.
  2. Before the oral discussion session concludes, the offeror team should go off line from the call and collectively review the notes for accuracy and completeness.
  3. Read back to the government the team’s notes and ask the agency for confirmation of the issues.

For more information, see CACI, Inc.-Federal, Comp. Gen. Dec. B-416549, decided on September 13, 2018.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

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Friday, 23 August 2019

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