When filing a GAO protest to challenge the award a contract for negotiated contract there is a difference between Federal Acquisition Regulation FAR Part 15 (FAR 15 discussions and clarifications). A successful bid protest can hinge upon your thorough understanding of the subtle differences in the federal acquisition procedures.
As its defense, the government will sometimes try to characterize a situation that would legally require meaningful discussions as a mere clarification. Keep in mind that the government choose to award without discussions or giving oral presentations.
The GAO, however, looks at details and actions of the parties when deciding bid protest cases.
Difference Between Clarifications and FAR Part 15 Discussions in GAO Protests
What are Discussions During the Proposal Evaluation Stage
When you submit your proposal for evaluation, the government sometimes engages in communications with you, the contractor. This commonly referred to as having discussions with the contractor.
After the competitive range is met, the government can invite or permit bidders to revise their proposals. Do you have to? No. However, the general rule is that if the agency mentions revising price, then it may very well be a government concern.
When contracting by negotiation FAR 15 compliance occurs 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. See also, Urgent and Compelling Circumstances in Government Contracting.
- The government cannot have improper or unfair discussions. An example would be to have a concern about two offerors’ pricing but only mention the issue to one company.
- The general rule is that if offerors were not given an opportunity to revise proposals, then the agency has conducted clarifications and not discussions. SeeRaytheon Co., B‑404998, July 25, 2011, 2011 CPD ¶ 232 at 5.
What are FAR Clarifications During the Proposal Evaluation Stage?
Agency clarifications under the FAR are considered to be “limited exchanges.” See FAR Part 15.306(a)(1). During a bid protest, arguing that the government should have engaged in more clarification exchanges will probably be a losing argument.
On the other hand, if there are more discussions with another bidder on the same issue but clarifications on the same issue with your company, the court may very well scrutinize the level of communications when the government has a concern with both contractors.
FAR clarifications may not permit bidders to revise their proposals but could allow them to clarify certain aspects of their proposals or resolve what the court would consider minor clerical errors. See FAR 15.306(a)(2).
- Although the solicitation may not contemplate discussions, the agency can still allow clarifications.
- A successful argument in a bid protest could be that the government’s use of clarifications was used to Clarifications “ to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the offeror’s bid proposal.” STG, Inc., B-411415; B-411415.2, July 22, 2015, 2015 CPD ¶ 240 at 9. Of course, you will have to provide evidence in the agency record to substantiate the allegation.
- After bid submission, when the Agency engages in clarifications, they must follow the plain meaning of the regulations.
- 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. See 13 CFR 125.6 Understanding Rules of Prime Contractor’s Limitations on Subcontracting FAR 52.219 14.
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 Part 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 Part 15 discussions for guidance in reaching its decisions. See also, SBA Certificate of Competency COC Program & Bid Protests
Understanding the Differences Between Clarifications and FAR 15 Discussions Compliance Are Critical to Winning a Bid Protest
In Government contracting by negotiation, one important distinction is the difference between FAR 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.
- 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 Bid Protest Requirements
If you decide to file a bid 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. See also, FAR Best Value Trade Off Analysis Definition & Application.
In addition to the above information, keep in mind that you still have to meet the protest rules for, intervenors, interested party and prejudice.
For contracting by negotiation questions, FAR compliance by the contracting officer or for help with filing a protest about FAR Part 15 discussions and FAR clarifications, call our GAO protest lawyers at 1-866-601-5518.