What are meaningful discussions? When competing for government contracts small business clients are often confused about the difference between meaningful discussions and "clarifications." The Federal Acquisition Regulations (FAR) differentiate between clarifications and meaningful discussions.
What is the Difference?
A clarification occurs after a bid is submitted when the government has a “limited exchange” with an offeror. A clarification does not revise or change a submitted proposal. Meaningful discussions occurs when the government communicates with offerors to obtain information essential to deciding if a proposal is acceptable or to provide an offeror with an opportunity to revise or materially modify a proposal.
The government can seek clarifications from selected offerors, but unless it has indicated in its solicitation that it intends to conduct negotiations, the government cannot undertake discussions with selected offerors – it has to hold discussions with all offerors.
FAR Part 15
If a solicitation references FAR Part 15 and there is a material problem with an offerors' technical proposal, the government tell the offeror what the problem is and seek discussions with the offeror. But, if the government holds a discussion with one offeror, it must hold discussions with all offerors. It is wrong for the government to attempt to avoid discussions with all offerors under the guise of seeking a clarification. The government must act fairly and afford all offerors the same opportunity to address critical aspects of their proposals for acceptability when compared to other offerors.
This issue was addressed in the Matter of Cascadian American Enterprises (File: B-412208.3; B-412208.4, Dated: February 5, 2016). In this case the GAO sustained a small business protest because the Army engaged in discussions with the awardee, but failed to provide the same opportunity to the protester.
The protestor was a small business that protested an Army Corps of Engineers’ award for the removal of vegetation at Joint Base Lewis-McChord, Washington. The protestor successfully argued that the Army acted unreasonably. The Army found its proposal was technically unacceptable without seeking a discussion even though the Army was improperly holding discussions with other offerors.
The case began in August 2015, when the Army posted a commercial item solicitation (FAR subpart 12.6). The solicitation (a small business set aside) sought the removal of vegetation from Joint Base Lewis-McChord to allow for soldier and unit maneuverability. The solicitation provided for the award of a fixed-price contract, with a base period of 12 months, to the lowest-priced offeror whose proposal was technically acceptable considering three technical evaluation factors: (1) relevant experience, (2) key personnel, and (3) past performance.
With respect to the experience factor, offerors were to provide at least one example of a relevant project that demonstrated experience performing vegetation removal on the four terrain types specified in the RFP.
With respect to the key personnel factor, offerors were to submit one individual for the following positions: contract manager, alternate contract manager, quality control manager, and site safety and health officer. The RFP stated that the quality control manager and the site safety and health officer could be the same individual as long as that person was qualified. The RFP required the contract manager and alternate contract manager to have at least five years of experience in managing work for the government.
The solicitation stated that the Army intended to make award based on initial offers and without meaningful discussions, which were defined as “the opportunity to resolve deficiencies or weaknesses in the proposals, based on the requirement and the evaluation factors set forth in the solicitation.” However, the solicitation reserved the right to initiate discussions and seek revised proposals. The solicitation also set forth definitions of discussions, communications, and clarifications. The solicitation defined clarifications as:
a limited exchange with an Offeror for the sole purpose of eliminating minor irregularities, informalities, or apparent clerical mistakes . . . [and which] do not give an Offeror the opportunity to revise or modify its proposal and are used, as necessary, when not opening discussions.
The Army received proposals from six offerors. The Army contacted two of the offerors with requests for further information which the Army termed "clarifications." The Army then concluded that all proposals except one were technically unacceptable. The proposal submitted by the protestor (which was priced lower than the awardees' proposal) was deemed to be technically unacceptable under the relevant experience and key personnel factors.
Two protests were immediately filed and were subsequently dismissed after the Army indicated it was taking "corrective action." After reevaluating the proposals, the Army again concluded that its previous awardee submitted the only acceptable proposal. This award decision was protested.
The protestor challenged the Army's determination that its proposal was unacceptable under the key personnel and relevant experience factors, and asserted that the Army improperly failed to conduct discussions. The GAO found that it was not necessary to look at the key personnel issue because the Army improperly held discussions regarding key personnel with other offerors, but not with the protestor. The GAO's review of the evidence highlighted that during the evaluation process the Army contacted the awardee regarding key personnel. This discussion resulted in the awardee being found qualified and acceptable.
The GAO's decision lays out the range of exchanges that may take place when an agency decides to conduct exchanges with offerors during negotiated acquisitions.
The decision contrasts FAR Part 15 clarifications and discussions. It properly describes clarifications as limited exchanges between an agency and an offeror for the purpose of eliminating minor uncertainties or irregularities in a proposal, and does not give an offeror the opportunity to revise or modify its proposal. Clarifications are not to be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal, or otherwise revise the proposal.
Discussions, on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. When an agency conducts discussions with one offeror, it must afford all offerors remaining in the competition an opportunity to engage in meaningful discussions.
Sometimes the difference between a clarification and a discussion are found in an agency’s communications with the awardee. Does the communication invite a response that is necessary to determine the acceptability of a proposal? This is the nature of discussions, not clarifications. In this case, the Army's communications revealed that it contacted an offeror to obtain information necessary to determine the acceptability of the proposal under the key personnel factor. Accordingly, the GAO concluded that the Army conducted discussions with the awardee and was required to also conduct discussions with all other offerors to provide them an opportunity to address deficiencies and significant weaknesses in their proposals.
Meaningful Discussions Must Occur With All Offerors
As a result of its findings, the GAO recommended that the Army should conduct discussions with all offerors. These discussions should allow offerors to address any evaluated deficiencies and significant weaknesses in their proposals. The Army should then reevaluate the proposals and make a new selection decision. The GAO also recommended that the protestor be reimbursed the reasonable costs of filing and pursuing its award protest by submitting a certified claim, detailing the time expended and costs incurred, directly to the Army within 60 days of receiving the decision.
If you are a government contractor and have concerns about the bidding process of an RFP, the experienced attorneys at Whitcomb, Selinsky Law PC may be of assistance. Please call (303) 534-1958 or complete an online contact form.