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FAR 15.306 (b):  Communications with offerors before establishment of the competitive range

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New 2. Application of FAR Definitions

In applying the definitions set forth in the FAR, “the ‘acid test for deciding whether discussions have been held is whether it can be said that an offeror was provided the opportunity to revise or modify its proposal.’” Davis Boat Works, Inc. v. United States, 111 Fed. Cl. 342, 353 (2013) (quoting Linc Gov’t Servs., 96 Fed. Cl. at 717); see also Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1322 (Fed. Cir. 2003) (“[W]hen discussions are opened, bidders have the opportunity to revise their proposals.”). Rivada contends that the exchanges that took place before the competitive range was established in this case, including the oral presentations, amounted to discussions because the exchanges were “extensive” and because, according to Rivada, the agency “allowed the offerors to offer changes to their proposals.” See Pl.’s Mem. at 22. The Court finds Rivada’s arguments unpersuasive.

First, the extensive nature of the exchanges does not, in the Court’s view, transform them into discussions. The procurement itself was complex and involved technical matters. Indeed, the government’s acquisition plan described the procurement as “unique” and “unprecedented.” AR Tab 28 at 678, 685. Further, the multi-phased evaluation process clearly contemplated that the evaluation would include a series of exchanges before the agency established a competitive range. Thus, the government informed offerors that it would provide them with “feedback” when it evaluated their capability statements in the procurement’s first phase, and that the feedback would “identif[y] [the] strengths and/or weaknesses” noted in those statements. Id. Tab 30 at 1436. Further, as part of its detailed evaluation of the proposals, the government stated that it might consider “oral presentations and/or technical demonstrations or other discussions.” Id. at 1437. Therefore, given the unusual nature of the procurement, the large volume of exchanges does not indicate that the agency engaged in discussions.13

Second, the exchanges were not intended to, and in fact did not provide the offerors an opportunity to revise their proposals. Indeed, the record shows that the agency’s intent—to which the Court grants weight in determining how the oral presentations should be characterized—was to not accept revisions until after it established a competitive range. Thus, when it requested information from the parties, the government consistently disclaimed any intent to accept revised proposals. See, e.g., id. Tab 63 at 9010, 9022, 9056, 9077, 9232, 9298, 9423; id. Tab 64 at 9671, 9734, 9797, 9920. The government’s internal communications also show that it sought to ensure that the oral presentations would not stray beyond the bounds of communications under FAR 15.306(b) and into discussions. See id. Tab 63 at 9220–23 (email stating that the agency “need[ed] to ensure that any documentation that [Rivada] submit[s]” in the course of the oral presentation “does not amend, update, or revise their original proposal submission,” and quoting FAR 15.306(b)).

Further, as AT&T points out, language in the agency’s instructions regarding the oral presentations closely tracked the language of FAR 15.306(b). See id. at 9216; id. Tab 64 at 9717 (informing the parties that “communications [would] be necessary in order to enhance FirstNet’s understanding of the proposal[s], allow reasonable interpretation of the proposed solution[s], and facilitate the evaluation process”; and that the communications “may be considered in rating the proposal[s] for the purpose of establishing the competitive range,” but would not “be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements, impact the overall value proposition of the proposal, and/or revise the proposal”). Thus, the agency clearly did not intend to allow the offerors to revise their proposals through the exchanges and oral communications that occurred during the detailed evaluation phase.

The content of the exchanges also shows that the agency used the exchanges only in service of performing a baseline assessment of the proposals as received, against which future, targeted revisions might occur. As the government points out, the vast majority of the agency’s questions were straightforward requests for technical information about ambiguities or gaps in the offerors’ proposals. See Def.’s Resp. at 31. Rivada, however, points to isolated questions that asked the offerors to “talk about” certain aspects of their proposals. See Pl.’s Mem. at 22 (citing AR Tab 58 at 8685, 8700, and AR Tab 62 at 8965, 8968). Despite this locution, the questions Rivada identifies all sought information about the parties’ proposals as they existed. That is, the agency did not ask the offerors to supply new information from outside the four corners of their proposals. See AR Tab 58 at 8685 (“[T]alk about the proposed sequence and timing . . . pursuant to Rivada’s proposed Integrated Master Schedule[.]”); id. at 8700 (“Based on your proposed solution, talk about . . . . :”); id. Tab 62 at 8965 (“Please talk about your current rationale . . . .”); id. at 8968 (“[T]alk about AT&T’s proposed resource strategy . . . .”) (all emphasis added).

Rivada also charges the agency with allowing AT&T to revise its proposal in response to two questions related to its proposed Band 14 coverage. See Pl.’s Mem. at 22–23. It is apparent to the Court, however, that the agency asked these questions to permit it to resolve an ambiguity in AT&T’s proposal about the geographic extent of AT&T’s proposed network. See AR Tab 62 at 8936–37 (requesting a clarification regarding how AT&T calculated the land area that would be covered by Band 14); id. at 8956 (noting a discrepancy between AT&T’s Band 14 map and its description of the extent of its Band 14 coverage). Specifically, the ESRI and MapInfo files AT&T submitted with its proposal showed that AT&T’s Band 14 coverage would extend to [ . . . ]. See id. at 8936–38. In its technical response, however, AT&T stated that figure at [ . . . ]. See id.

AT&T responses to the agency’s questions explained that the discrepancy resulted from its inadvertent failure to account in its technical response for [ . . . ] that were included in its maps. See id.; see also id. at 8956. Rivada contends that AT&T’s responses “reflect[ed] changes to its proposal to add information it failed to include in its proposal originally.” Pl.’s Mem. at 23 (emphasis omitted). But as the Federal Circuit has observed, “[a]ny meaningful clarification . . . . require[s] the provision of information,” and there is “no requirement” that the information provided “not be essential for evaluation of the proposal.” Info. Tech., 316 F.3d at 1323; see also Office Depot, Inc. v. United States, 95 Fed. Cl. 517, 543–44 (2010). Here, AT&T’s responses simply made clear that the omission of the [ . . . ] from one part of its proposal caused the internal inconsistency identified by the agency. The agency thus did not seek a proposal revision; nor did AT&T provide one.

Finally, Rivada claims that the agency also permitted it to revise its own proposal before establishing the competitive range. Pl.’s Mem. at 24–25. Specifically, it contends that the agency’s evaluators changed their initial determinations about two aspects of Rivada’s proposal following its oral presentation: its proposed Local Control solution and its proposed Public Safety Entity Home Page. See id. The record shows, however, that the information Rivada provided clarified the intent of its original proposal, rather than revising it. See AR Tab 56 at 2:10:13–2:11:25 (Rivada explaining during its oral presentation that [ . . . ]); id. Tab 67 at 10113 (noting that Rivada’s oral presentation clarified that it had proposed [ . . . ]).

Because the agency neither intended to accept proposal revisions nor permitted the offerors to revise their proposals, its exchanges with the offerors did not amount to discussions. Accordingly, the Court concludes that the agency engaged only in communications with the offerors, not discussions.  (Rivada Mercury, LLC v. U. S. and AT&T Corp., No. 16-1559C, March 31, 2017)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
New Rivada Mercury, LLC v. U. S. and AT&T Corp., No. 16-1559C, March 31, 2017  
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