Contractors often have questions about meaningful discussions in the agency source selection process. With many GAO bid protests being filed for lack of meaningful discussions between the Government and offerors, it is important to understand the rules. Meaningful discussions have been seen consistently in GAO protest decisions where proposals are evaluated on the lowest priced technically acceptable (LPTA) standard.
When the Government evaluates your proposal based on the lowest-priced, technically acceptable standard, it must first follow the criteria as set forth in the solicitation; whether it be technical and past performance or some other basis.
GAO Protest Rules for Meaningful Discussions
It is a fundamental principle of negotiated procurements that agencies must conduct meaningful discussions. Under GAO protest rules, discussions must identify deficiencies and significant weaknesses in each offeror’s proposal that could reasonably be addressed to materially enhance the offeror’s potential for receiving the award. See Federal Acquisition Regulation. FAR 15.306 (d)(3).
Meaningful discussions are to be tailored to each offeror’s proposal. FAR 15.306 (d)(1). For example, a government contracting agency fails to conduct meaningful discussions where it does not tell you that your prices were viewed as unreasonably high.
Furthermore, when conducting meaningful discussions, an agency may not mislead you–through the framing of a discussion question or a response to a question–into responding in a way that does not address the agency’s concerns, misinform you about a problem with your proposal, or misinform you about the government’s requirements.
- As GAO protest lawyers, we often suggest that you take detailed notes about the context of the discussions and even push by asking more questions about the government’s requirements.
- Your protest would be stronger if your lawyer can show the agency misled you during discussions about the requirements.
Clarifications vs. Meaningful Discussions
FAR 15.306 describes a range of exchanges that may take place when an agency decides to conduct discussions with offerors during negotiated procurements. Clarifications , on the other hand, are limited exchanges between an agency and an offeror that may occur where, as here, contract award without discussions is contemplated. FAR 15.306(a).
Under government contract law, agencies may, but are not required to, engage in clarifications that give you an opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. However, clarifications may not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or revise the proposal.
Meaningful discussions, however, occur when an agency substantively communicates with you either to obtain information essential to decide the acceptability of your proposal or to give you an opportunity to revise or change your proposal in some material respect.
- When an agency conducts discussions with you, it must also conduct discussions with all bidders in the competitive range.
- At the conclusion of meaningful discussions, the agency must request final proposal revisions. FAR 15.307(b).
Actions Determine Whether Meaningful Discussions Occurred
GAO protest decisions focus on the actions of the parties to decide whether meaningful discussions have been held, regardless of what the Government calls the communication. In situations where there is a dispute about whether communications between an agency and an offeror constituted discussions, the key is for a bid protest lawyer to assess whether you have been afforded an opportunity to revise or change your proposal.
In situations where there is a dispute about whether communications between an agency and an offeror constituted discussions, the key is for a bid protest lawyer to assess whether you have been afforded an opportunity to revise or change your proposal.
Communications that do not let you to revise or change your proposal, but ask that you confirm what you have already committed to do, are clarifications and not meaningful discussions.
Under GAO Protest Rules You Still Have to Show Prejudice
When filing a GAO bid protest alleging lack of meaningful discussions, GAO protest rules require that you still show that the Agency’s error prejudiced you. For example, if you would have changed your proposal when the Government conducted discussions, you must expressly say so in your protest. In other words, if you are not harmed by
For example, if you would have changed your proposal when the Government conducted discussions, you must expressly say so in your protest. In other words, if you are not harmed by lack of meaningful discussions, you will still lose the bid protest.
If you are in need help in a protest alleging lack of meaningful discussions, call a bid protest lawyer at 1-866-601-5518 for a free initial consultation.