Academy Leadership, LLC

The procurement

Leadership-focused Gettysburg staff ride training for ICE employees, bought as a fixed-price IDIQ contract through a total small business set-aside under FAR subpart 13.5 simplified procedures. Award was a best-value tradeoff, with non-price factors significantly more important than price.

The protest

Academy argued that ICE's post-evaluation emails were discussions. ICE told the eventual awardee that its price was significantly higher than the other proposals and asked whether that was its best offer. Academy said that once ICE opened discussions, it had to tell Academy about the significant weaknesses in its technical proposal, but ICE only asked Academy whether its price was its best offer.

The agency’s answer

ICE said its emails were requests for price reductions, not discussions. It argued that simplified acquisition procedures do not require discussions and that the solicitation reserved the right to ask offerors for information. It also noted that, unlike FAR subpart 8.4, FAR part 13 has no specific rule on seeking price reductions.

What decided it

Telling one offeror its price was significantly higher and asking for its best offer was discussions, and they had to be meaningful.

GAO concluded that ICE's email to the awardee conveyed information tailored to that proposal, involved bargaining, and gave the awardee a chance to revise, so it was discussions. Because ICE did not raise Academy's significant weaknesses and only asked for a price reduction, the discussions were not meaningful. GAO recommended reopening the procurement, holding appropriate discussions with the phase-two offerors, requesting revised proposals, making a new selection decision, and reimbursing Academy's protest costs.