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Whynot

Elements of the acquisition process require equality and others only require fairness

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On a Locked Topic: FAR 13.106-2 - Discussions

http://www.wifcon.com/discussion/index.php?/topic/2740-far-13106-2-discussions

There was discussion on treating vendors fairly as opposed to treating them equally.

On a recent case posted on WifCon

http://www.wifcon.com/cgen/4113652.pdf

The GAO made this comment - see page 14:

It is a fundamental principle of government procurement that competition must be based on an equal basis; that is, offerors must be treated equally and be provided with a common basis for the preparation of their proposals.

It is creating a bit of confusion for me - there appears to be a distinction that some elements of the acquisition process require equality and others only require fairness.

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It appears to me that they are simply saying that all things being equal offerors should be treated equally. Saying competition must be based on a equal basis suggest to me that offers shouldn't be provided an unfair advantage. On a competitive procurement, all potential offerors are treated equally, at least initially, with a common basis for the preparation of proposals. Perhaps, it's just careless word choice.

I'm sure you'll get some sound advice with references here though.

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The statement says more than that and very clearly:

“offerors must be treated equally”

It is hard to reconcile.

If the GAO left out those words I think the resultant statement would agree strongly with your analysis.

Prior to seeing this statement, I was of the mind that sometimes fairness requires equality and sometimes it doesn’t. Not so sure now.

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Whynot:

Why do you believe the statement says more?

In what context was the statement made, and how should we interpret the statement?

If equality is the standard, it appears inconsistent with or at least limiting the meaning of other rules and decisions. For example FAR 1.602-2( b ) and 1.102-2( c )( 3 ).

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Guest Vern Edwards

On a Locked Topic: FAR 13.106-2 - Discussions

http://www.wifcon.co...6-2-discussions

There was discussion on treating vendors fairly as opposed to treating them equally.

No there wasn't. I checked, and the words "equal" and "equally" do not appear in that thread. Here was the key statement:

In short, what is fair depends on the rules and the circumstances. "Fair" does not necessarily mean that you do the same things with everyone. Fair means, among other things, treating firms the same when they are similarly-situated in the competition.

That statement was made with reference to FAR 1.102-2[c](3):

The Government shall exercise discretion, use sound business judgment, and comply with applicable laws and regulations in dealing with contractors and prospective contractors. All contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same.

The use of the word "equally" in the recent Lockheed Martin GAO decision seems to have discombobulated Whynot. The word appears four times in the decision -- in the digest; on page 3, where it refers to the weighting of subfactors; on page 11, where it says "the protester is correct in asserting that offerors may not be treated unequally, that is, offerors must be afforded equal opportunities to address the portions of their proposal that require revision, explanation, or amplification"; and on page 14, where it says: "It is a fundamental principle of government procurement that competition must be based on an equal basis; that is, offerors must be treated equally and be provided with a common basis for the preparation of their proposals."

Those statements by the GAO have prompted Whynot to ponder:

It is creating a bit of confusion for me - there appears to be a distinction that some elements of the acquisition process require equality and others only require fairness.

Before I spend any more time on this, let me ask: Does anyone else find the Lockheed Martin decision worrisome? Does anyone else see a conflict between FAR 1.102-2[c](3) and the GAO's statements? Does the GAO's use of "equally" worry anyone beside Whynot?

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I have no concerns with the GAO decision. In any case, the protest was denied in its entirety.

On page 11, the GAO writes--

However, the requirement for equal treatment does not mean that discussions with offerors must, or should, be identical. To the contrary, discussions must be tailored to each offeror’s own proposal.

So, equal does not mean identical. I'm fine with this.

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It is creating a bit of confusion for me - there appears to be a distinction that some elements of the acquisition process require equality and others only require fairness.

Whynot has a specific question. If one person asks, surely more share the same concern. In my experience, many believe equal treatment is necessary throughout the entire acquisition process by rule or because it's perceived to be a safer route.

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Guest Vern Edwards
What is a good definition of equal or equally? We know it does not mean identical or identically. Does it mean fair and fairly?

Why not:

See the Comptroller General's letter to the Secretary of the Treasury, June 1, 1972, B-174492:

[Our office} has clearly stated that equal opportunity for additional proposal revision must be extended to all similarly situated offerors....

To paraphrase and generalize: Offerors that have the same problem must be treated in the same way with respect to that problem. For example, you cannot offer a solution to one such offeror that you do not offer to others, and you cannot let one offeror fix the problem, but not the others.

The GAO maintains that position to this day. Treating offerors equally means treating similarly situated offerors in the same way.

Does that help?

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Whynot,

You can get your answer directly from the GAO decision. Above, I quoted a brief excerpt from the decision, and indicated it was from page 11:

However, the requirement for equal treatment does not mean that discussions with offerors must, or should, be identical. To the contrary, discussions must be tailored to each offeror’s own proposal.

If you will read the entire paragraph from which the excerpt was taken, you will find the answer to your question:

With respect to Lockheed’s related contention that the agency conducted more meaningful and detailed discussions with Raytheon, the protester is correct in asserting that offerors may not be treated unequally; that is, offerors must be afforded equal opportunities to address the portions of their proposals that require revision, explanation, or amplification. Unisys Corp., B-406326 et al., Apr. 18, 2012, 2012 CPD ¶ 153 at 7. However, the requirement for equal treatment does not mean that discussions with offerors must, or should, be identical. To the contrary, discussions must be tailored to each offeror’s own proposal. FAR §§ 15.306(d)(1), (e)(1); Metro. Interpreters & Translators, Inc., B-403912.4 et al., May 31, 2011, 2012 CPD ¶ 130 at 7.

A contracting officer who understands FAR 1.102-2( c )( 3 ) doesn't need any more answer than has already been provided by the GAO and Vern's summary. You should not insist on a definition of "equal" that you will inflexibly use in every circumstance -- that is antithetically opposed to the principle of FAR 1.102-2( c )( 3 ).

In your original posting, you quoted one sentence (without the context of the paragraph from which it was extracted) and imagined a conundrum. But there is no conundrum. The sentence makes perfect sense within the context of the paragraph in which it belongs:

It is a fundamental principle of government procurement that competition must be based on an equal basis; that is, offerors must be treated equally and be provided with a common basis for the preparation of their proposals. An agency may waive compliance with a material solicitation requirement in awarding a contract only if the award will meet the agency's actual needs without prejudice to other offerors. Safety-Kleen (TS), Inc., B-284125, Feb. 23, 2000, 2000 CPD ¶ 30 at 2-3. Competitive prejudice is an essential element of a viable protest; and where the protester fails to demonstrate that, but for the agency’s actions, it would have had a substantial chance of receiving the award, there is no basis for finding prejudice, and our Office will not sustain the protest. See, e.g., SunGard Data Systems, Inc., B-410025, Oct. 10, 2014, 2014 CPD ¶ 304 at 7-8. Unfair competitive prejudice from a waiver or relaxation of the terms and conditions of the RFP for one offeror exists where the protester would have altered its proposal to its competitive advantage had it been given the opportunity to respond to the altered requirements. Vocus Inc., B-402391, Mar. 25, 2010, 2010 CPD ¶ 80 at 6.

Even here, where the GAO affirms that offerors must be treated equally, the GAO also in the same prargraph allows the Government to waive compliance with a material solicitation requirement provided there is no prejudice to other offerors.

To me, the GAO's decision makes good sense. There is no conundrum. There is no conflict with FAR 1.102-2( c )( 3 ). You must not over-fixate on one word. Maybe you can think of it this way -- should a parent treat his or her children equally? Yes, if one interprets "equal" broadly and fairly, with appreciation for context -- No, if one interprets "equal" inflexibly and harshly, with no appreciation for context. The GAO tries to look broadly and fairly, with appreciation for context.

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Yes. Thank you.

I appreciate your patience, and I know you paraphrased and generalized, and I am not trying to be deliberately stupid.

As I understand it, you can not simply substitute the word "equally" for the word "same" in the statement at 1.102(c )(3). Equal Treatment starts and ends with only those offerors that are similarly situated .It is not appropriate to infer that offerors that are not similarly situated do not have to be treated equally. Only that offerors that are not similarly situated do not have be treated the same. This is not the same as saying that offerors that are not similarly situated do not have be treated equally. Because the concept of equality and inequality does not extend to offerors that are not similarly situated.

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I agree.

However, I am not so much concerned on what constitutes equal treatment, which is the crux of the case, but identifying those situations that do not require equal treatment. Not just the degree of sameness or being identical. The GAO statement seemed to me to state that equal treatment is required at all times.

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Let’s create two groups:

Similarly Situated and Not Similarly Situated

For the Similarly Situated Group

All Offerors must be treated fairly and impartially

All offerors must be treated the same (not identically)

All offerors must be treated equally (not identically)

For the Not Similarly Situated Group

All Offerors must be treated fairly and impartially

All offerors need not be treated the same ?

All offerors need not be treated equally ?

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I think you're making this way too hard.

Definitely. All you have to understand is you cannot act with prejudice. If you understand what it means to act with prejudice, then it is very simple to understand when you are treating all offerors equally, and when you are discriminating between the merits of offerors fairly.

For example, you have allowed oral presentations of a technical approach. All offerors receive the same instructions, and present before the same panel in the same location. They have been given an equal chance to present their technical approach.

Offeror #1 begins with a description of their approach. You refer to the RFP and its stated requirements for an acceptable approach and ask the offeror to expound. He does, and the information meets the government's needs, so you allow a brief question and answer with the panel.

Offeror #2 begins with a description of their approach. You refer to the RFP and its stated requirements for an acceptable approach and ask the offeror to expound. The offeror cannot respond, and it is clear without any further discussion the technical approach is unacceptable. There is no follow up Q&A with the panel.

The offerors have been treated fairly, but not equally.

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