Litigating bid protest for lack of meaningful discussions when bidding with the federal government is still an ongoing problem. When contractors receive debriefings, they sometimes find that discussions held were far from meaningful.
A bid protest alleging lack of meaningful discussions must be approached carefully since many agencies attempt to cloud discussions with clarifications.
GAO can sustain a bid protest where, notwithstanding an agency’s characterization of its exchanges with the protester as clarifications, the agency failed to conduct meaningful discussions but failed to identify a deficiency associated with your proposal. This was the case in Kardex Remstar, LLC, B-409030 (Jan. 17, 2014)
One lesson from this protest is that government contractors must be aware of discussion requirements in FSS bids. GAO noted that the procedures of Federal Acquisition Regulation (FAR) part 15 governing contracting by negotiation–including those concerning exchanges with offerors after receipt of proposals–do not govern competitive procurements under the FSS program. FAR 8.404(a)
GAO reaffirmed that there is no requirement in FAR Part 8.4 that an agency conduct discussions with vendors. Conversely, exchanges that do occur with vendors in FAR Part 8.4 procurement, like all other aspects of such a procurement, must be fair and equitable. In this FAR protest, GAO looked to the standards in FAR part 15 for guidance in making this determination.
What are Clarifications Versus Meaningful Discussions Under GAO Protest Rules?
FAR 15 suggests that clarifications are as “limited exchanges” that agencies may use to allow offerors to clarify certain aspects of their proposals or to resolve minor or clerical mistakes. See FAR § 15.306(a)(2).
Meaningful discussions, on the other hand, under GAO protest rules, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal or quotations, or provides the vendor with an opportunity to revise or modify its proposal.
GAO also reemphasized that an Agency’s characterization of a communication as clarifications or meaningful discussions is not controlling; it is the actions of the parties that determine whether discussions have been held and not merely the characterization of the communications by the agency.
In FAR protest, the agency attempted to argue that the communications it conducted were clarifications and not meaningful discussions. However, GAO did not buy it. Agencies must conduct meaningful discussions in order to allow you to adjust the critical parts of the proposal that would give you a fair chance of consideration. With that said, the agency is not required to spell out every detail of your proposal.
Meaningful Discussion Regarding Staffing Levels
Oftentimes, during discussions, government agencies pose questions that may lead you to increase or decrease your proposed staffing. Under GAO protest rules, you will have to show that you were led to propose more or less staffing than was necessary to perform the contract. You also have to show prejudice.
- When you get a debriefing, you want to carefully, analyze the agency discussion and link to your previous discussions before award.
It is a fundamental principle of negotiated procurements 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. See FAR § 15.306(d). In addition, government contracting agencies may not mislead you through the framing of a discussion question into responding in a manner that does not address the agency’s actual concerns, or otherwise misinform you concerning a problem with its proposal.
For example, if the Agency asks about a specific part of your technical proposal, it must show during a GAO protest that there was actually a point of discussing that portion of your proposal and not later surprise you with a problem in another part of the proposal.
If you believe that a federal agency did not conduct meaningful discussions during the evaluation stage, and you are considering filing a FAR protest, call our Washington, DC bid protest lawyers at 1-866-601-6618.