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Opinions, please. See 10 USC § 3303(a); 41 USC § 3703(a); FAR 15.306(a)(3); FAR 52.215-1(f)(4); and FAR 52.215-1 (Alt. I) (f)(4).

QUESTION: Given those USC and FAR provisions, may an agency state in a FAR Part 15 RFP that it intends to conduct discussions but reserves the right to change its mind after receipt and evaluation of proposals and award without discussions?

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I brought it up because of something described in a new Court of Federal Claims bid protest decision, ENGlobal Government Services, Inc. v. U. S. and KBR Services, LLC, No. 21-2317C, May 12, 2022.  (May 13, 2022):

Quote

The government intended to conduct discussions. AR 629 (§ M.1.2) (“The Government intends to hold discussions but reserves the right to make awards without discussion.”).

That was not an issue in the protest, but it caught my attention. It was inconsistent with long-standing practice, which is that if you say you are going to conduct discussions you cannot change your mind after receipt of proposals and decide to award without discussions. But inconsistency with practice would not make it improper. The issue is whether the above sentence in the RFP is inconsistent with statute or regulation.

Don't get me wrong. I don't think it would be unreasonable. In fact, I think it makes sense. But is it consistent with law and regulation?

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Interesting, Vern.  The issue is still lingering with IAP, but I don't know that we'll get a final answer on this particular issue, because they were arguing DFARS 215.306, vice FAR 15.306.

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The following document from 2015 indicates it has been a practice and upheld as such:  https://www.dm.usda.gov/procurement/toolkit/VAONegotiations.pdf

Specifically, starting on the bottom of page 5 and continuing into 6: 

"If the solicitation indicates there will be discussions, but does not reserve the right to award without discussions (see FAR 52.215-1, Alt 1), then discussions are required.  We also have seen tailored solicitation provisions in which the government indicated that holding discussions was more likely than not, often due to the complexity of the specific requirement, and yet it explicitly reserved he right to award without discussions.  Numerous GAO decisions have upheld the government's right to award without discussions, so long as the government has explicitly reserved that right in the terms of the solicitations.

[Quote from Matter of:  L.W. Milby, Inc., Inc. (B-219388), Aug 27, 1985, omitted]

...

"Thus, in a negotiated procurement, holding discussions after evaluation of initial offers is required unless the right to award without discussions 'based on initial offers as received' is explicitly reserved in the solicitation."

The GAO digest of the above cited opinion does not indicate if the facts are entirely on point, nor does the quote from it, so I omitted it.  The language of the article, however, seems pretty sure of itself that it can be done.

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It is unorthodox and inconsistent with regular practices as you said Vern.  But I don’t see it as counter to statue or regulations.  However an agency must have sound rational for doing to and document a solid case.  The background of the ENGlobal and KBR decision seems to support that action.

I’m trying to come up with a situation supporting that - offerers are clear with fair and reasonable pricing, or a clear and convincing winner that doesn’t require revision, but it’s difficult.  How long would it take to briefly allow time for changes, establish a cutoff, and re-evaluate any changes?

Edit:  If any agency wanted to do this they probably have some special rational upfront, the solicitation really needs to highlight and emphasize the point.   Because it’s unusual, the approach description needs to standout so offerors are clearly aware of the facts and understand proposals need to be submitted on the most favorable terms (even though that’s routinely stated). 
 

 

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On 5/16/2022 at 6:07 AM, Vern Edwards said:

QUESTION:

No doubt a matter for the GAO/Court to decide on whether such an approach is statutorily allowed.   Regulation wise, I say yes.

My position for putting the reservation in the solicitation (and applying it) would be that the ground rules of the procurement were laid out to all.  Applying the reservation would then be a judgement of the agency and the judgement (as substantiated by the agency) would be not be subject to protest review.   

How would I do it?  I would do an individual deviation to 52.215-1 as I see nothing in statute that does not allow such a deviation.

 

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Here’s another great example of why our procurement system sets up acquisition failures.  Say there’s a valid reason for this situation.  Then you decide a FAR waiver is needed for 52.215-1.  How long does it take to write that up, get reviews and approvals along the way, make all the necessary edits, and obtain a signature.  It’s simpler and easier to just conduct brief discussions.

Our process is doomed.  

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Here is FAR 52.215-1, Alt I, (f)(4):

Quote

     (f)(4) The Government intends to evaluate proposals and award a contract after conducting discussions with offerors whose proposals have been determined to be within the competitive range. If the Contracting Officer determines that the number of proposals that would otherwise be in the competitive range exceeds the number at which an efficient competition can be conducted, the Contracting Officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals. Therefore, the offeror's initial proposal should contain the offeror's best terms from a price and technical standpoint.

Emphasis added.

According to The American Heritage Dictionary, 5th ed., intend means:

"To have in mind; plan."

I don't think "intends" states a firm and unswerving commitment.

After pondering for a while, I think that an agency can say that it intends to conduct discussions and then, after evaluating proposals, decide that discussions would not result in improvement that would be worth the additional time and expense of discussions and final proposal revisions. It could then award without discussions. I think that including a notice to that effect in an RFP would not constitute a deviation from FAR 52.215-1, Alt. I, (f)(4).

Of course, one can effectively do the same thing using the basic provision instead of the alternate.

Thanks for your responses.

 

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11 hours ago, C Culham said:

My position for putting the reservation in the solicitation (and applying it) would be that the ground rules of the procurement were laid out to all.  Applying the reservation would then be a judgement of the agency and the judgement (as substantiated by the agency) would be not be subject to protest review.   

How would I do it?  I would do an individual deviation to 52.215-1 as I see nothing in statute that does not allow such a deviation.

 

Couldn’t an interested party make a protest challenging the provision’s reservation prior to the offer due date?

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11 hours ago, Vern Edwards said:

After pondering for a while,

Me as well.....two additional comments.

I had this thought that it is a two way street is it not, after all an offeror can change their mind and withdraw their proposal at anytime.  Of sorts aligned with your thoughts the government can change its intention as well.

10 hours ago, Jamaal Valentine said:

Couldn’t an interested party make a protest challenging the provision’s reservation prior to the offer due date?

My wording may have been to definite, protest could occur just wonder if sustaining the protest would occur if the government expressed their approach in the RFP and documented the reasoning for doing so and followed the deviation process. 

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12 hours ago, Jamaal Valentine said:

Couldn’t an interested party make a protest challenging the provision’s reservation prior to the offer due date?

Yes. They could protest the terms of the solicitation prior to the proposal due date. 

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6 hours ago, C Culham said:

My wording may have been to definite, protest could occur just wonder if sustaining the protest would occur if the government expressed their approach in the RFP and documented the reasoning for doing so and followed the deviation process.

I may be hurting my reputation as "The Deviation Guy", but I don't think what Vern is proposing would constitute a deviation. He would just be notifying offerors of a possibility despite the Government's intent.

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