Once a solicitation has been issued, exchanges between the Government and offerors are subject to strict requirements under the Federal Acquisition Regulation (FAR). Among other restrictions, Government personnel involved in the acquisition are prohibited from favoring one offeror over another, revealing technical solutions proposed, or disclosing an offeror’s proposed price information without permission.[1] In certain situations, however communications between the Government and offerors are allowed, if not encouraged. For example, under FAR 15.306(d), a procuring agency may enter into negotiations to allow the offeror to revise its proposal and allow the Government to obtain the best value for services or products solicited. In a competitive acquisition, these “discussions” take place after the competitive range has been established.
While an agency is not required to conduct discussions in every solicitation, if discussions are conducted, “[t]he law is well-settled that [they] they must be ‘meaningful.’”[2] Discussions are considered to be meaningful if “they generally lead offerors into the areas of their proposals requiring amplification or correction, which means that discussions should be as specific as practical considerations permit.”[3] Certainly, an agency is not required to identify every area that might be improved in an offeror’s proposal.[4] However, “[a]t a minimum, the contracting officer must . . . indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond.”[5]
In a recent bid protest, [nap_names id=”FIRM-NAME-1″] argued that the Government violated these requirements in a solicitation for a $29.8 million service contract. After proposals were submitted, the agency elected to conduct discussions and as part of that process, sent the protestor information identifying certain weaknesses in, and questions regarding, its proposal. Each issue was fully addressed in a timely manner. However, in spite of meeting all the criteria of the RFP and being the lowest, responsive responsible bidder, the contract was awarded to a vendor whose price was greater than 35 percent higher than the protestor’s proposed price.
From the debriefing, it was revealed that the protestor was deemed technically inadequate due to having a proposed staffing level that was too low — less than half the staffing level provided by the incumbent vendor. However, the evidence showed not only that the protestor’s proposed staffing level exceeded all staffing requirements identified in the RFP, but that the protestor was never notified during the discussions that its proposed staffing levels were deemed low, let alone technically inadequate. A protest was then filed with the Government Accountability Office, in which the protestor argued that the discussions conducted by the agency did not meet the requirements of FAR 15.306(d). Before a hearing was held, the agency agreed to rescind the intent to award and resolicit the contract. As a result, the protestor will now have the opportunity to submit a new proposal and then engage in more meaningful discussions with the agency.
For advice or assistance in protecting your rights when contracting with the government, including capturing government contract opportunities through bid protests, please contact any of the government contracts attorneys at Eckland & Blando LLP.
[1] FAR 15.306(e).
[2] Electronic Data Systems, LLC v. United States, 93 Fed. Cl. 416, 432 (2010).
[3] WorldTravelService v. United States, 49 Fed. Cl. 431, 439 (2001).
[4] Dynacs Engineering Co., Inc. v. United States, 48 Fed. Cl. 124, 131 (2000).
[5] FAR 15.306(d)(3) (emphasis added).