When filing a GAO protest for contracting by negotiation there is a difference between FAR 15 discussions and clarifications. A successful bid protest can hinge upon your thorough understanding of the subtle differences.
As its defense, the government will sometimes try to characterize a situation that would legally require meaningful discussions as a mere clarification.
The GAO, however, looks at details and actions of the parties when deciding bid protest cases.
Difference Between Clarifications and FAR 15 Discussions in GAO Protests
Clarifications: After bid submission, when the Agency engages in clarifications, they must follow the plain meaning of FAR 15.
- Clarifications are “limited exchanges” between an agency and your company for clarifying certain aspects of your proposal.
- Clarifications do not give you the opportunity to revise or change your proposal.
Discussions: When contracting by negotiation FAR 15 discussions occur when an agency communicates with you for the purpose of obtaining information essential to decide your proposal’s acceptability or to provide you with an opportunity to revise or modify your proposal in some material respect.
Court’s Legal Test in FAR Protest: When there is a bid protest and the dispute is about whether an exchange between an agency and a bidder constituted FAR 15 discussions, the legal test is whether you have been afforded an opportunity to revise or modify your bid.
- If the issue concerns a material aspect of your proposal, then discussions are warranted;
- The agency does not have to give you a point-by-point lecture on everything that is wrong with your proposal;
- Contracting by negotiation discussions are not necessary to allow you to improve a neutral or already positive evaluation score.
If no clarification, the government must conduct meaningful discussions. The contracting agency cannot lead you in a direction that steers your off course.
If there is a material problem with your technical proposal evaluation, the Agency should let you know about it. In a GAO bid protest, GAO will typically look to the standards in FAR 15 discussions for guidance in reaching its decisions.
Differences in FAR Part 15 and FAR 8.4 Clarifications and Discussions
In Government contracting by negotiation, one important distinction in the difference between FAR 15 discussions and clarifications when filing a GAO protest is that when competition is under Federal Supply Schedules under FAR 8.404(a), evaluation requirements do not use the same rules as required by Regulation FAR 15 governing contracting by negotiation. See also difference between FAR part 12 and FAR part 15.
- You should always look to see how the Agency is conducting the procurement.
There is no requirement in FAR 8.4 that an agency conduct discussions with Federal Supply Schedule vendors.
- If the agency chooses to, exchanges that do occur with vendors in a FAR 8.4 procurement, like all other aspects of such a procurement, must be fair and equitable.
Additional FAR Protest Requirements
If you decide to a file a GAO FAR protest challenging an agency’s clarifications or discussions process in contracting by negotiation, you may also have to show that the agency acted unfairly because it did not afford you the same opportunities to address the critical aspects of your proposal for acceptability when compared to other bidders.
In addition to the above information, keep in mind that you still have to meet the protest rules for interested party and prejudice.
For contracting by negotiation questions or for help with filing a protest about FAR 15 discussions and clarifications, call our GAO protest lawyers at 1-866-601-5518.