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But what about from the perspective of the offeror? Is it unfair to the offeror that its offer will be judge using very old data? What if the offeror has had significant experience in the last two years that would make the past performance section of its offer far more competitive? Does their ever come a time when the agency just has to issue a new RFP and accept new bids? Thanks, www

For nearly two years since an offeror submitted its offer, the agency has periodically requested that the offeror confirm that its offer remains available. And the offeor has so confirmed. Now that a significant length of time since passed since the offer was submitted, the offeror would like to update its offer with revised information, especially past performance data. Is offeror ever able to revise its offer with new data? How long can the agency continue to hold the offeror to this stale data? Thanks in advance. www

Thank you. To clarify: What does "discuss" mean? What, specifically, have they discussed and to what end? Why are they discussing pricing? The affiliates have not discussed anything yet, because they want to make sure they are not violating any regulations. The solicitation contains multiple requirements and each affiliate has strengths that respond to different requirements. Because each is 100% owned by a parent, they and the parent are trying to determine whether it would be better to bid as a team or separately, if they bid at all. The parent, as much as is permitted, would like to make sure the pricing is consistent and practical. In such case, it seems like a legitimate business interest to discuss pricing – if only to answer the basic questions of “at what pricing can we meet the requirements and make it financially worthwhile?” and “how much resources should we put into bidding on this work?” The discussions about pricing would not be “for the purpose of restricting competition,” as referenced in 52.203-2(a)(1). In addition, neither affiliate would make any attempt “to induce any other concern to submit or not to submit an offer for the purpose of restricting competition,” as referenced in 52.203-2(a)(3). That leaves 52.203-2(a)(2): “The prices in this offer have not been and will not be knowingly disclosed by the offeror, directly or indirectly, to any other offeror or competitor before bid opening (in the case of a sealed bid solicitation) or contract award (in the case of a negotiated solicitation) unless otherwise required by law.” If the parent and affiliates discuss pricing, then such prices could arguably be “knowingly disclosed by the offeror, directly or indirectly, to another offeror/competitor,” to the extent that the affiliate is a “competitor,” despite the general principle that affiliates are not competitors as stated in the Supreme Court decision in Copperweld. Nonetheless, both affiliates would be offerors. However, 52.203-2© appears to allow an offeror to delete or modify 52.203-2(a)(2) , as long as it explains why. 52.203-2© states “If the offeror deletes or modifies paragraph (a)(2) of this provision, the offeror must furnish with its offer a signed statement setting forth in detail the circumstances of the disclosure.” What does the statement say? There is not statement yet. Any discussions of the affiliates and parents – and thus any statement - will be guided by what is permitted by the regulations. If it is permitted for affiliates to discuss pricing frankly, then the statement could say “Offeror A developed its pricing in conjunction with its 100% affiliate, Offeror B.” If developing pricing in conjunction with another offeror, even an affiliate, is forbidden, then they might simply disclose the pricing to each other, in which case the statement might say “Offeror A disclosed its pricing to its 100% affiliate, Offeror B.” If making such disclosure and the subsequent statement will cause trouble for the affiliated offerors , then they won’t even do that. In any case, it seems that because each has the same parent, then there is the chance for “indirect” disclosure by one affiliate to the other. In such case, the statement might say ““Offeror A disclosed its pricing to its parent company, which is the sole shareholder of Offeror B, and thus could be considered to have indirectly disclosed its pricing to Offeror B.” In each case, the goal is to make a full explanation to the CO and allow the CO to determine that the disclosure was not “made for the purpose of had the effect of restricting competition” under 3.103-2( (2). It would be helpful to know what standards the COs follow in making that determination. Thanks! www

Does FAR 52.203-2 permit affiliated companies to discuss pricing with each other and then each submit bids to the same solicitation? If the affiliates struck (a)(2), could the affiliates prepare a signed statement explaining their reasons in line with 52.203-2©? If you have any experience making or reviewing such statements, I'd greatly appreciate your thoughts on what must be included in order to satisfy the CO. Thanks, www

Thanks - but what about after the request for reconsideration? Say the recon decision still comes back unfavorably; is there in avenue into federal court?

What is the next step for a carrier that wants to further appeal an Appeal Decision by the Defense Office of Hearings and Appeals (DOHA)? I undertsand that this is the final agency action by DOD--is there another avenue available for a carrier in this situation? The Court of Federal Claims? The Armed Services Contract Board of Appeals? Thanks!