Understanding the Difference Between Meaningful Discussions and Unequal Discussions Can Improve Your Chances of Winning Bid Protests
A common misunderstanding in analyzing meaningful discussions as compared to unequal discussions in bid protests is the legal application under the FAR and in a bid protest forum such as the GAO. Without a clear understanding, contractors can find themselves losing out on an opportunity to sustain a contract protest.
What is Meant by Meaningful Discussions?
When a government contracting agency elects to engage in discussions with a bidder it must follow the procurement law that mandates meaningful discussions. Meaningful discussions must be sufficiently detailed so as to lead you into the areas of your proposal requiring amplification or revision in a manner to materially enhance your potential for receiving award.
What are Unequal Discussions?
In conducting discussions with bidders, government contracting should not engage in unequal discussions or engage in what amounts to disparate treatment of the competing offerors.
- Discussions may not be conducted in a manner that favors one contractor over another
- Discussions have to cover identical topics
- Proper discussions during source selection must be tailored to each company’s proposal
The contracting officer has discretionary judgement as to the content of discussions. However, per Federal Acquisition Regulation (FAR) §15.306(d) (3); meaningful discussions must include:
- Significant weaknesses;
- Deficiencies, and
- Adverse past performance information to which you have not yet had an opportunity to respond.
Does an Agency Have to Engage in Discussions Because of Your Higher Price?
Keep in mind the subtle difference between meaningful discussions vs unequal discussions
With respect to discussions about your price, GAO has often ruled in bid protest rulings that the decision to inform you that your price is too high during discussions is discretionary. If the agency determines that your price is fair and reasonable, then there is not a requirement to enter into meaningful discussions simply because your price is higher than the competition. See when bid and proposal costs are recoverable.
When looking at the legal definition of meaningful discussions about price, unless your proposed price is so high as to be unreasonable or unacceptable, an agency is not required to inform you during discussions that your proposed price is high in comparison to your competition’s proposed price.
- This is true even though price is the determinative factor for award.
- If your price was above the government estimate, there could be a case.
- If the agency discussed pricing with your competition, this could be another legal argument.
If you need legal help when looking at meaningful discussions vs unequal discussions in bid protests, call our government contract lawyers for immediate help at 1-866-601-5518.