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FAR 15.102:  Oral presentations

Comptroller General - Key Excerpts

Discussions

Finally, CDS asserts that various communications between CMS and the offerors during oral presentations constituted discussions. Accordingly, CDS maintains that, because CMS conducted discussions with one or more of the offerors prior to CDS’s exclusion from the competition, the agency was required to conduct discussions with CDS. We reject CDS’s arguments.

As noted above, this procurement was conducted as a competition between IDIQ contract holders and, as such, was subject to the provisions of FAR § 16.505. In that regard, FAR § 16.505 does not establish specific requirements for conducting discussions; nevertheless, when discussions are conducted, they must be fair and reasonable. Hurricane Consulting, Inc., B-404619 et al., Mar. 17, 2011, 2011 CPD ¶ 70 at 5; CGI Fed. Inc., B-403570 et al., Nov. 5, 2010, 2011 CPD ¶ 32 at 9; see also Imagine One Tech. & Mgmt., Ltd., B-401503.4, Aug. 13, 2010, 2010 CPD ¶ 227 at 7‑8. Where, as here, an agency conducts a task order competition as a negotiated procurement, our analysis regarding fairness will, in large part, reflect the standards applicable to negotiated procurements. See, e.g., TDS, Inc., B‑292674, Nov. 12, 2003, 2003 CPD ¶ 204 at 4; Uniband, Inc., B-289305, Feb. 8, 2002, 2002 CPD ¶ 51 at 3-4. Although the FAR anticipates “dialogue among parties” during the course of oral presentations, see FAR § 15.102, when agency personnel begin speaking, rather than merely listening, the content of that dialogue may ultimately lead to a conclusion that the agency held discussions. As we have long held, the acid test for deciding whether an agency has engaged in discussions is whether the agency has provided an opportunity for proposals to be materially changed. See, e.g., TDS, Inc., supra; Priority One Servs., Inc., B‑288836, B‑288836.2, Dec. 17, 2001, 2002 CPD ¶ 79 at 5. In contrast, clarifications are not used to cure proposal deficiencies or materially alter the technical or cost elements of a proposal, but are limited to enhancing the agency’s understanding and allowing reasonable interpretation of proposals or facilitating the agency’s evaluation process. FAR § 15.306(b)(2). Requesting clarifications from one offeror does not trigger a requirement that the agency seek clarifications from other offerors. Serco Inc., B‑406061.1, B-406061.2, Feb. 1, 2012, 2012 CPD ¶ 61.

Here, we have reviewed the record regarding the oral presentations and conclude that, even applying FAR part 15 standards to this procurement, the agency’s communications constituted clarifications, not discussions. In this regard, the record establishes that the agency made a conscious effort to ask only limited questions and to seek clarification regarding aspects of offerors’ proposals that had been referenced during the presentation; the agency did not seek, nor did the offerors’ responses constitute, proposal revisions.

For example, CDS asserts that one of CMS’s questions to Lockheed regarding additional computing capacity referenced in its proposal constituted discussions. Specifically, Lockheed’s written proposal stated:

[T]he elements of our technical solution infrastructure mirrors the current [Baltimore Data Center] environment and provides enough . . . capacity to meet all current [Baltimore Data Center] workloads, plus [redacted] additional in-place capacity that can be immediately activated through an authorized change request.

AR, Tab 9a, Lockheed Technical Proposal, at I-4.

With reference to this portion of the proposal, the agency asked Lockheed to respond to the following: “[E]xpand on ‘[redacted] additional capacity.’ Is it in the scope and included in firm fixed price?” AR, Tab 11b, CMS Summary of Lockheed Oral Presentation at 8. Lockheed responded, stating, “The additional ‘[redacted]’ is NOT within the proposed FFP but readily available.” Id. In its written follow-up, submitted the next day, Lockheed reiterated that its additional capacity “can be activated with [an] appropriate approved change order for additional price.” AR, Tab 11d, Lockheed Summary of Oral Presentation at 21.

On this record, we reject CDS’s assertion that the exchange regarding Lockheed’s additional capacity constituted a revision to Lockheed’s proposal. Specifically, nothing in Lockheed’s written proposal is inconsistent with the response it provided. That is, the portion of Lockheed’s proposal, quoted above, expressly discussed activation of its additional capacity “through an authorized change request”--thereby indicating that the capacity was not within the scope of Lockheed’s fixed price. Wholly consistent with that provision, Lockheed’s response confirmed that the additional capacity was, indeed, not within the scope of its proposed price, and that activation of such capacity would be contingent on receipt of additional compensation. Accordingly, Lockheed’s response to the agency’s request for clarification did not in any way constitute a change to its proposal, and we reject CDS’s assertion that these communications constituted discussions.

By way of another example, CDS complains that, after Lockheed had responded to the uniform series of questions presented to all offerors, one of the agency’s follow‑up questions asked Lockheed about a particular software tool, called [redacted], that Lockheed had referenced. By way of background, Lockheed’s written proposal stated: We will achieve end-to-end automation. . . .We will leverage COTS [commercial of the shelf software], open source software, and our corporate developed scripting and programming solutions to . . . enable productivity improvement, and provide operational cost savings.” Lockheed Technical Proposal at I-19. During its oral presentation Lockheed referenced [redacted], a software modeling tool. Thereafter, the agency asked Lockheed to: “expand on use of [redacted] modeling tool (what is it? Is it in the Proposal?)” AR, Tab 11b, CMS Summary of Lockheed Oral Presentation at 8. Lockheed responded by providing additional information regarding [redacted], describing it as a “COTS product that manages workloads within and across platforms.” AR, Tab 11d, Lockheed Summary of Oral Presentation at 22. Lockheed also noted that its written proposal discussed Lockheed’s intent to introduce efficiencies through automation, and stated that, although [redacted] was not referenced by name in Lockheed’s written proposal, it was an example of automation that “we are investigating.” Id.

Again, nothing in Lockheed’s response to the agency’s question altered its proposal. To the contrary, Lockheed expressly acknowledged that its written proposal had not specifically offered [redacted] and, consistent with that fact, Lockheed’s response to the agency’s question did not commit to provide that tool; rather, Lockheed’s response stated that Lockheed was still “investigating” it. On this record, CDS’s assertion that these communications constituted discussions is without merit.

Finally, CDS asserts that both Lockheed and [redacted] “alter[ed] their [proposed] organizational structure/key personnel” by bringing personnel to the oral presentations who had not been proposed as key personnel or listed on their organizational charts. CDS Comments, Aug. 25, 2014, at 23. In this regard, CDS references the agency’s directions to offerors regarding oral presentations which stated:

Participants

The contractor shall include only those personnel who will participate in the performance of the task order. Corporate Officers/Managers are allowed only if they will participate within and contribute to performance. The Government should therefore be able to match the names in the written proposal’s organization chart to faces attending oral presentations. Marketing and business development personnel will not be allowed to attend. The offeror’s participants shall include the proposed key personnel.

AR, Tab 6a, TORP attach. 4, Instructions for Orals, at 2.

CDS complains that Lockheed and [redacted] each brought one individual to their oral presentations who had not been proposed as key personnel or listed on their respective organization charts. Accordingly, CDS argues that the attendance of these individuals at the oral presentations effectively altered their proposals.

Even were we to conclude that the participation of particular personnel in oral presentations constituted changes to Lockheed’s and [redacted] proposals (which we do not), we would reject CDS’s assertion that such changes were the result of discussions. As established by the FAR, discussions are undertaken by an agency with the intent to obtain proposal revisions and include bargaining, give and take, persuasion, and alteration of assumptions and positions. FAR § 15.306(d). Clearly, the purported “changes” in Lockheed’s and [redacted] personnel were not the result of such give and take between the agency and the offerors. Rather, at most, they reflected changes due to factors completely unrelated to communications between the offerors and the agency. On this record, we reject CDS’s assertion that the participation at oral presentations of Lockheed and [redacted] personnel who had not been proposed as key personnel or listed on the organization charts constituted discussions.

In sum, we do not view any of the communications the agency conducted with any of the offerors during oral presentations to constitute discussions. Accordingly, we reject CDS’s assertion that the agency was required to conduct discussions with CDS.

The protest is denied.  (
Companion Data Services, LLC, B-410022, B-410022.2: Oct 9, 2014)  (pdf)


The RFQ provided for selection of the successful vendor on a "best value" basis applying technical factors and price. RFQ, Attach. 1, at 46-47. The RFQ also provided for vendors to make oral presentations. Id. at 47. Following the receipt and evaluation of initial quotations, oral presentations, discussions, and the submission and evaluation of final quotation revisions, Brooks's quotation was scored lower technically than CMI's and was substantially higher priced. Accordingly, the agency determined that CMI's quotation represented the best value, and issued CMI the task order.

Brooks asserts that the selection decision was unreasonable because it was based in part on consideration of the oral presentations; it claims that, because the oral presentations were not listed in the RFQ as an evaluation factor, it was improper for the agency to include the presentations in the evaluation.

This argument is without merit. Brooks is correct that the solicitation did not include the oral presentations as a separate evaluation factor. However, such an express designation was not required. Where, as here, vendors are specifically advised that the oral presentation will become part of the quotation package, E-mail from Contracting Officer, Feb. 23, 2009, and the solicitation specified that oral presentations were to cover information related to performance of the contract, we think it is implicit that the information presented will be considered in the selection decision. See generally Day & Zimmermann Pantex Corp., B-286016 et al., Nov. 9, 2000, 2001 CPD para. 96 (where RFP provides for evaluation of proposed approach to performance, it is implicit that agency will consider whether the proposed approach will result in improved performance by incumbent). We conclude that the agency properly considered the oral presentation information in the evaluation.  (Brooks Range Contract Services, Inc., B-401231, June 23, 2009)  (pdf)


The agency’s technical evaluation team chairman states in an affidavit that the evaluators considered both the oral and written presentation materials, and there is nothing in the record establishing otherwise. Agency Motion to Dismiss, Oct. 11, 2006, exh. 1, at 2. The fact that the evaluators’ worksheets memorializing their observations from the oral presentations were prepared some time after the presentations--the chairman states that there was a 1 or 2-day delay, id.--does not establish that the agency failed to consider the oral presentations. (Metcalf & Eddy Services, Inc., B-298421.2; B-298421.3, November 29, 2006) (pdf)


The FAR generally anticipates “dialogue among the parties” in the course of an oral presentation, FAR § 15.102(a), and we see nothing improper in agency personnel expressing their view about vendors’ quotations or proposals, in addition to listening to the vendors’ presentations, during those sessions. Once the agency personnel begin speaking, rather than merely listening, in those sessions, however, that dialogue may constitute discussions. As we have long held, the acid test for deciding whether an agency has engaged in discussions is whether the agency has provided an opportunity for quotations or proposals to be revised or modified. See, e.g., TDS, Inc., B-292674, Nov. 12, 2003, 2003 CPD ¶ __ at 6; Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD ¶ 79 at 5. Accordingly, where agency personnel comment on, or raise substantive questions or concerns about, vendors’ quotations or proposals in the course of an oral presentation, and either simultaneously or subsequently afford the vendors an opportunity to make revisions in light of the agency personnel’s comments and concerns, discussions have occurred. TDS, Inc., supra, at 6; see FAR § 15.102(g). (Sierra Military Health Services, Inc.; Aetna Government Health Plans, B-292780; B-292780.2; B-292780.3; B-292780.4; B-292780.5; B-292780.6, December 5, 2003) (pdf)


We find, despite the agency's characterization of the exchanges, that discussions occurred here. The FAR anticipates “dialogue among the parties” in the course of an oral presentation, FAR § 15.102(a), and we see nothing improper in agency personnel expressing their view about vendors' quotations or proposals, in addition to listening to the vendors' presentations, during those sessions. Once the agency personnel begin speaking, rather than merely listening, in those sessions, however, that dialogue may constitute discussions. As we have long held, the acid test for deciding whether an agency has engaged in discussions is whether the agency has provided an opportunity for quotations or proposals to be revised or modified. See, e.g., Priority One Servs., Inc., B‑288836, B-288836.2, Dec. 17, 2001, 2002 CPD ¶ 79 at 5. Accordingly, where agency personnel comment on, or raise substantive questions or concerns about, vendors' quotations or proposals in the course of an oral presentation, and either simultaneously or subsequently afford the vendors an opportunity to make revisions in light of the agency personnel's comments and concerns, discussions have occurred. See FAR § 15.102(g). That plainly is the case here. Following the oral presentations, the agency specifically advised the firms: Technical revisions may only be made, at your selection where you feel necessary, to the questions presented in Oral Presentations, along with those specifically requested, such as the percent of discount offered from the GSA Schedule rates, Performance Evaluation Questionnaire. AR, exh. 24, at 7. The record thus shows that the agency afforded the firms an opportunity to revise their quotations, in particular in the areas raised by agency personnel during the oral presentations, and the record further shows that the firms in fact made revisions to their submissions, both as to technical matters and as to price. AR, exh. 8, TDS Final Submission, June 19, 2003; AR, exh. 9, Northrop Final Submission, June 19, 2003. Based on these considerations, we conclude that the agency engaged in discussions. (TDS, Inc., B-292674, November 12, 2003) (pdf)


In sum, we cannot find reasonable the agency’s evaluation of Sankaty’s proposal/oral presentation as “blue/excellent in all respects” under the phase-in plan and safety plan evaluation subfactors, and thus “blue/excellent in all respects” overall, where the record demonstrates that Sankaty did not specifically address either of these subfactors during its oral presentation, and did not adequately address the requirements of these subfactors while presenting its response to the conformance to the SOW, management approach and administrative plan, or quality control subfactors.5 Given that Sankaty’s higher-priced proposal was selected as the best value to the agency in part because of its higher overall technical rating of “blue/excellent in all respects,” the agency’s selection lacks a reasonable basis.  (T Square Logistics Services Corporation, B-291851, April 15, 2003) (pdf)


Finally, RVJ complains of irregularities in the conduct of the oral presentations. For example, RVJ contends that the contracting officer, who signed the Summary of Procurement Action, did not attend all of RVJ's oral presentation. However, we are unaware of any requirement that a source selection official attend the presentation. John Carlo, Inc., B-289202, Jan. 23, 2002, 2002 CPD ¶ 23 at 8 n.3. While RVJ also complains that its oral presentation was not adequately considered, as noted in the TET Report, the evaluators fully considered the vendors' oral presentations, AR, Tab 12, TET Report, at 1, and in any event, RVJ has not explained how further consideration of its oral presentation would have had any effect on the award decision.  (RVJ International, Inc., B-292161; B-292161.2, July 2, 2003)  (pdf)


Although the FAR thus does not require a particular method of establishing a record of what was said or occurred during oral presentations, the fundamental principle of government acountability dictates that an agency maintain a record adequate to permit meaningful review. J&J Maintenance, Inc., supra; see Delta Int'l, Inc., B-284364.2, May 11, 2000, 2000 CPD para. 78 at 4; Telos Field Eng'g, B-253492.6, Dec. 15, 1994, 94-2 CPD para. 240 at 9.  (Checchi and Company Consulting, Inc., B-285777, October 10, 2000)

Comptroller General - Listing of Decisions

For the Government For the Protester
Companion Data Services, LLC, B-410022, B-410022.2: Oct 9, 2014  (pdf) TDS, Inc., B-292674, November 12, 2003 (pdf)
Brooks Range Contract Services, Inc., B-401231, June 23, 2009  (pdf) T Square Logistics Services Corporation, B-291851, April 15, 2003 (pdf)
Metcalf & Eddy Services, Inc., B-298421.2; B-298421.3, November 29, 2006 (pdf) Checchi and Company Consulting, Inc., B-285777, October 10, 2000
Sierra Military Health Services, Inc.; Aetna Government Health Plans, B-292780; B-292780.2; B-292780.3; B-292780.4; B-292780.5; B-292780.6, December 5, 2003 (pdf) J&J Maintenance, Inc., B-284708.2; B-284708.3, June 5, 2000
RVJ International, Inc., B-292161; B-292161.2, July 2, 2003  (pdf)  
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