One reason why bid protests are successful is when the contractor shows that the failed to conduct lawful discussions. GAO looks at these issues very carefully. The underlying principle of having meaningful discussions is the Competition in Contracting Act (CICA).
Each bidder is entitled to its proposal being evaluated on equal footing with other offerors. Experts say the GAO will pay close attention to arguments contending discussions weren’t held on a level playing field.
What Are Discussions? When contracting agencies opt to enter discussions with bidders, those contractor communications must be meaningful. It is also important to remember that agencies are not required to enter into discussions. However, if they choose to then they must raise material proposal concerns to all offerors with competitive range.
The definition of meaningful means that the communication about the proposal must be sufficiently detailed that it can lead the bidder to specific areas in its proposal that needs serious attention. See Southeastern Kidney Council, B‑412538, March 17, 2016, 2016 CPD ¶ 90 at 4.
Problems in a bid protest alleging lack or meaningful discussions arise when the source selection board documents that a proposal lacks an essential element called out in the solicitation but never brings it up during contractor discussions.
Not only is this level of communication violating FAR 15.306 but GAO may also consider it to be misleading discussions if the conversation tends to steer the contractor to a part of its proposal where there are no serious concerns.
The government may but does not have to, discuss the fact that your price is high when compared to other proposals or the independent government cost estimate. See IAP World Services, Inc. B-297084, November 1, 2005, 2005 CPD ¶ 199 at 4. If the price is of serious concern where there is heavy documentation in the record, then there could be an argument in protest litigation that the government should have raised the issue during discussions.
Clarifications Versus Discussions
FAR Part 15.306 provides information that can clarify the meaning of discussions as compared to clarifications. The primary focus in on the level of agency and contractor communications.
The definition of clarifications in government contracting refer to limited exchanges between the agency and offerors that may occur when contract award without discussions is contemplated. Contracting agencies do not have to engage in clarification. If minor errors are in your proposal, then the agency can clarify its contents. See FAR 15.306(a); Satellite Servs., Inc., B-295866, B‑295866.2, Apr. 20, 2005, 2005 CPD ¶ 84 at 2 n.2.
The definition of discussions, alternatively, arise when the contracting office communicates about information that is essential to the acceptability of your proposal. Discussions also occur when such agency communication allows you to revise your proposal. See Diversified Collection Services, Inc., B-406958.3, B‑406958.4, Jan. 8, 2013, 2013 CPD ¶ 23 at 11-12; Also see FAR 15.306(d).
- The agency’s characterization of its actions does not finalize a dispute about whether clarifications or discussions have taken place.
- GAO or another court will make that decision in a bid protest.
Advantage of Raising Lack of Meaningful Discussions Under FAR 15.306
Not only is this a good area to raise source selection arguments but a bid protest alleged lack of meaningful discussions or misleading discussion can cause the agency to have to reopen discussions. This may give the extra advantage of your company being able to revise its proposal. However, the agency could avoid this by limiting revisions to certain parts of the proposal.
For help litigating a bid protest about lack of meaningful discussions under FAR 15.306, call a government contracts attorney at 1-866-601-5518.