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FAR 15.306 (d)(1):  Discussions - held with each offeror within competitive range, disparate treatment, tailored discussions

Comptroller General - Key Excerpts

We need not determine whether CAE’s proposed key personnel approach was properly found to be unacceptable since, as set forth below, we agree with the protester’s related contention that the agency held discussions regarding key personnel with other offerors, but not with CAE. Our review of the record indicates that during the evaluation, the agency contacted the awardee, Jimmy Church, because its proposed alternate contract manager “was initially evaluated as unacceptable” by two members of the evaluation team because it was not clear he had the required minimum 5 years of experience. AR, Tab 12, SSEB Report, at 10 (emphasis added). During its conversation with Jimmy Church, the agency was informed that the proposed alternate contract manager “had six years experience and authority working in the capacity as Alternate Contracting Manager on Federal Contracts for the company when Jim Church was not available.” Id. As a result of this conversation, the “SSEB determined that [the individual proposed] was qualified and acceptable as the Alternate Contract Manager.” Id. Therefore, the evaluators concluded that Jimmy Church’s proposal was “ACCEPTABLE” for Factor B, key personnel, and the overall proposal was evaluated as “ACCEPTABLE.” Id. (emphasis in original).

FAR § 15.306 describes a range of exchanges that may take place when the agency decides to conduct exchanges with offerors during negotiated acquisitions.[2] Res Rei Dev., Inc., B-410466.7, Oct. 16, 2015, 2015 CPD ¶ 320 at 10; Int’l Waste Indus., B-411338, July 7, 2015, 2015 CPD ¶ 196 at 5; ERIE Strayer Co., B-406131, Feb. 21, 2012, 2012 CPD ¶ 101 at 4; see also RFP at 7-8. Clarifications are limited exchanges between an agency and an offeror for the purpose of eliminating minor uncertainties or irregularities in a proposal, and do not give an offeror the opportunity to revise or modify its proposal. FAR § 15.306(a)(2); RFP at 8; Int’l Waste Indus., supra; ERIE Strayer Co., supra. Clarifications are not to be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal, or otherwise revise the proposal. Res Rei Dev., Inc., supra; Int’l Waste Indus., supra.

Discussions, on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. FAR § 15.306(d); RFP at 7-8; Int’l Waste Indus., supra; Alliant Enter. JV, LLC, B-410352.4, Feb. 25, 2015, 2015 CPD ¶ 82 at 5. As a general matter, when an agency conducts discussions with one offeror, it must afford all offerors remaining in the competition an opportunity to engage in meaningful discussions. Int’l Waste Indus., supra; ERIE Strayer Co., supra. Further, it is the actions of the parties that determine whether discussions have been held and not merely the characterization of the communications by the agency. Int’l Waste Indus., supra; Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD ¶ 79 at 5.

Thus, the agency’s communications with the awardee invited a response that was necessary to determine the acceptability of its proposal. This is quintessentially the nature of discussions, not clarifications. Int’l Waste Indus., supra, at 6; Kardex Remstar, LLC, B-409030, Jan. 17, 2014, 2014 CPD ¶ 1 at 4. Although the agency argues that “[n]o revisions were needed for [Jimmy Church] and no revisions were offered, permitted, or considered by the SSEB”, Supp. AR at 4, we find this argument unconvincing since, as the record shows and the agency itself notes, only after the conversation with Jimmy Church was the offeror found to be technically acceptable for the relevant experience factor. AR, Tab 12, SSEB Report, at 10; Supp. AR, at 4.

Likewise, the Army also contacted another offeror because it found that its proposed quality control manager had “no credential demonstrated”; there “was no [site safety and health officer] listed in the Key personnel as required by the solicitation”; and it was confusing as to which individual the offeror proposed as the contract manager. AR, Tab 12, SSEB Report, at 6. Specifically, the proposal listed two people as a project manager, and indicated that one of the project managers would be a contract manager and the other would be a quality control manager. Supp. AR, Offeror Proposal, at 3-4. The proposal further indicated that the alternate contract manager was also the “contract officer”. Id. at 3. As a result, the agency contacted the offeror “in regard to clarification of the key personnel and their proposed role on the project,” and explained that “there was confusion in the roles and responsibilities of the proposed team identified in the proposal.” Id. Thus, as with Jimmy Church, the agency contacted an offeror to obtain information necessary to determine the acceptability of the proposal under the key personnel factor. Accordingly, we conclude that the Army, having conducted discussions with Jimmy Church and another offeror, was required to also conduct discussions with all other offerors in the competition, including CAE, and provide them an opportunity to address deficiencies and significant weaknesses in their proposals.  (Cascadian American Enterprises B-412208.3 ,B-412208.4: Feb 5, 2016)  (pdf)


Finally, the protester asserts that the agency allowed the awardee to revise its quotation after discussions were complete, and that the questions posed to Artel following the submission of revised quotations constituted unequal discussions. Supp. Protest at 10. Specifically, the protester alleges that the agency’s questions provided the awardee with guidance on which aspects of its revised quotation could be materially enhanced to increase the potential for award, and that the agency relied on the awardee’s responses in finding Artel’s revised quotation acceptable. Comments at 2, 7-8. In response, the agency asserts that Artel’s revised quotation was already found acceptable when the challenged exchanges took place, and that the agency merely sought clarification of information already contained in Artel’s revised quotation. The record supports this assertion.

Under Federal Acquisition Regulation (FAR) § 15.306(d), discussions are exchanges with offerors after the establishment of a competitive range. Such exchanges are supposed to be tailored to each offeror’s unique proposal or quotation, with the intent of obtaining revisions through bargaining, give and take, attempts at persuasion, the alteration of assumptions and positions, and negotiations. FAR § 15.306(d). In contrast, clarifications are not used to cure deficiencies or materially alter the technical or cost elements of a proposal or quotation, 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.

On this record, including the questions posed to Artel after the submission of revised quotations as well as Artel’s responses, we conclude that the agency found Artel’s revised quotation acceptable prior to its submission of responses to the agency’s questions. Additionally, the record shows that the questions were intended to enhance the agency’s understanding of information already contained in the quotation. For example, the questions sought additional information to clarify the type of satellites and satellite locations referenced in Artel’s description of its experience in its quotation. Artel did not further revise its quotation in response to the agency’s clarification questions or provide any information that was necessary to make the quotation acceptable. AR, Tab 7, Artel Response to SSEB Questions. Accordingly, we do not view these exchanges as discussions.

The protest is denied.  (Hughes Network Systems, LLC B-409666.5, B-409666.6: Jan 15, 2015)  (pdf)


Improper Exchanges with the Awardee

Next, Staples argues that GSA conducted exchanges that improperly allowed Office Depot to materially revise its proposal after the due date for proposals. Protester Supp. Comments (Oct. 20, 2014) at 13. Staples argues that any communications between a firm and an agency that results in that firm changing its proposal constitutes discussions, and that if GSA held discussions with Office Depot then it was required to hold discussions with the other offerors and, at the conclusion, request revised proposals. Protester Supp. Comments (Oct. 20, 2014) at 14.

GSA responds that Staples was similarly allowed to address the agency’s concerns with its technical approach after the due date for proposals. Supp. AR at 7. The agency states that it allowed all CLIN No. 4 offerors to “clarify their initial submissions” to address, for example, noncompliant items in their market baskets and incomplete subcontracting plans. Id. at 8. Therefore, the agency argues that its actions in this regard did not prejudice the protester.

In our view, Staples’ argument about discussions overlooks the fact that this procurement anticipated award to the lowest-priced, technically acceptable offeror. Where proposals are to be rated acceptable/unacceptable, a proposal rated “acceptable” cannot be further improved. Therefore, we have recognized that in such situations, an agency properly may conduct discussions with only those offerors whose proposals are unacceptable. Presidio Networked Solutions, Inc. et al., B-408128.33 et al., Oct. 31, 2014, 2014 CPD ¶ __ at 8; see also Zodiac of North America, B‑409084 et al., Jan. 17, 2014, 2014 CPD ¶ 79 at 4; Commercial Design Group, Inc., B‑400923.4, Aug. 6, 2009, 2009 CPD ¶ 157 at 3.  (Staples Contract & Commercial, Inc., B-409528.34, B-409528.37: Dec 3, 2014)  (pdf)


The RFP established a two-phase evaluation approach. Under Phase I, offerors would submit two proposal volumes--one which provided an equipment list and identified web-based support capabilities/data and reporting requirements; and a second which provided contractual documents. The Phase I proposals were to be evaluated as acceptable or unacceptable. RFP at 19, 96. Only offerors evaluated as acceptable in Phase I would be invited to submit Phase II proposals. Id. at 19. The solicitation stated that the Army did not intend to hold discussions under Phase I, but reserved the right to engage in discussions and clarifications, if necessary. Id. Under Phase II, the agency planned to conduct discussions after establishing a competitive range. Id. at 238.

(sections deleted)

Presidio and Mercom contend that the agency’s actions at various points in the procurement process constituted discussions. As a result, the protesters contend that the agency conducted discussions with some, but not all, offerors, resulting in competitive prejudice to the offerors who did not receive discussions. We will address these assertions below.

As a general matter, where an agency engages in discussions, it must afford all offerors remaining in the competition an opportunity to engage in meaningful discussions. See Lockheed Martin Simulation, Training & Support, B‑292836.8 et al., Nov. 24, 2004, 2005 CPD ¶ 27 at 8. The FAR requires agencies conducting discussions with offerors to address, “[a]t a minimum ... deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond.” FAR § 15.306(d)(3).

The protesters contend that the agency conducted discussions with some offerors during Phase I of the procurement process, which allowed certain offerors to improve their Phase I proposals to the level of acceptable. The protesters argue that it was improper for the agency to conduct Phase I discussions with some, but not all, offerors. Alternatively, the protesters argue that once discussions were opened in Phase I, the agency was required to conduct discussions regarding Phase I and Phase II proposals.

The agency does not dispute that it conducted discussions with offerors during Phase I, but contends that it was not obligated to conduct discussions with offerors whose Phase I proposals had already been deemed acceptable, since acceptable was the highest available rating in Phase I, and since a proposal rated acceptable could not be further improved. The agency also argues that its Phase I discussions did not obligate it to conduct discussions with offerors regarding their Phase II proposals because the solicitation put offerors on notice that the two phases would be considered separate for purposes of the evaluation and the conduct of discussions.

We find nothing objectionable in the agency’s decision to conduct discussions during Phase I with only those offerors whose Phase I proposals were deemed unacceptable. The scope and extent of discussions are a matter of contracting officer judgment. FAR § 15.306(d)(3); Tritech Field Eng’g, Inc., B‑255336.2, Apr. 13, 1994, 94‑1 CPD ¶ 261 at 5. Where proposals are to be rated acceptable/unacceptable, a proposal rated “acceptable” cannot be further improved. Therefore, we have recognized that in such situations, an agency properly may conduct discussions with only those offerors whose proposals are unacceptable. See Zodiac of North America, B‑409084 et al., Jan. 17, 2014, 2014 CPD ¶ 79 at 4; Commercial Design Group, Inc., B‑400923.4, Aug. 6, 2009, 2009 CPD ¶ 157 at 3. Thus, the agency was not obligated to conduct Phase I discussions with offerors whose proposals had already been rated acceptable, since those proposals could not have been further improved at that point in the competition.

Further, we disagree with the protesters that the conduct of discussions during Phase I obligated the agency to conduct discussions with offerors regarding their Phase II proposals. In this regard, we note that the solicitation put offerors on notice that the agency considered the two phases separate and distinct with regard to discussions. Specifically, the RFP stated the following:

4.2 Phase I - Acceptable/Unacceptable

* * * * *

The Government does not intend to hold discussions under Phase I. However, the Government reserves the right to engage in discussions and clarifications if necessary.

4.3 PHASE II

The Government intends to award contracts after conducting discussions with offerors in the competitive range under Phase II. Only those offerors within the competitive range will be engaged in discussions and be requested to submit a final proposal revision.

RFP at 237, 238.

Given that offerors were informed that the agency “reserve[d] the right to engage in discussions” during Phase I, but planned to conduct discussions during Phase II only after establishment of the competitive range, we find that the offerors were on notice that the agency considered the Phases to be separate and distinct for purposes of conducting discussions. Therefore, we find nothing improper in the agency’s decision to conduct Phase I discussions, without engaging all of the offerors in discussions regarding their Phase II proposals.  (Presidio Networked Solutions, Inc.; Mercom Corporation; MicroTechnologies, LLC, B-408128.33, B-408128.35, B-408128.36, B-408128.50: Oct 31, 2014)  (pdf)


Turning to the merits of Metropolitan’s protest, Metropolitan contends that discussions were unequal because MVM and AllWorld received more extensive and detailed discussions than the protester. In conducting exchanges with offerors, agency personnel also may not “engage in conduct that . . . favors one offeror over another,” Federal Acquisition Regulation (FAR) § 15.306(e)(1); in particular, agencies may not engage in what amounts to disparate treatment of the competing offerors. Front Line Apparel Group, B-295989, June 1, 2005, 2005 CPD ¶ 116 at 3-4. Although discussions may not be conducted in a manner that favors one offeror over another, discussions need not be identical among offerors; rather, discussions are to be tailored to each offeror’s proposal. FAR § 15.306(d)(1), (e)(1); see M. Matt Durand, LLC, B-401793, Nov. 23, 2009, 2009 CPD ¶ 241 at 5.

According to Metropolitan, MVM received more extensive discussion questions than did Metropolitan because MVM’s discussion questions included one question regarding MVM’s technical proposal, whereas none of Metropolitan’s discussion questions concerned Metropolitan’s technical proposal. Second Supp. Protest at 16; Metropolitan Comments at 24. The record, however, reflects that during its initial evaluation of MVM’s proposal, the SEB identified one weakness under one of the technical evaluation factors. AR, Tab 7, SEB Final Report, attach. H. The record also reflects that during its initial evaluation of Metropolitan’s proposal, the SEB identified no weaknesses under any of the technical evaluation factors. Id., attach. G. The MVM discussion question referenced by Metropolitan pertains to the sole technical weakness that the SEB identified for MVM’s proposal. AR, Tab 12, MVM Discussion Questions, at 3. Given that the agency did not identify any technical weaknesses for Metropolitan’s proposal, we see no merit in Metropolitan’s argument that discussions with MVM were unequal as compared to discussions with Metropolitan. See Heritage Garden Center, Inc.; S.C. Jones Servs., Inc., B-248399.4, Oct. 28, 1992, 92-2 CPD ¶ 290 at 5-6.

Metropolitan also asserts that discussions were unequal because AllWorld, pursuant to its pre-award debriefing, received a copy of the SEB’s initial consensus evaluation findings, which Metropolitan argues provided AllWorld with more detailed information than was provided to Metropolitan. Supp. Protest at 7; Metropolitan Comments at 19-20 (referencing AR, Tab 17, AllWorld Pre-Award Debriefing Letter). However, as discussed above, Metropolitan’s proposal received the highest available ratings for each evaluation factor and subfactor. AR, Tab 7, SEB Final Report, at 32-33. Thus, even if Metropolitan, like AllWorld, had received a copy of the SEB’s consensus evaluation findings prior the submission of its FPR, Metropolitan cannot establish that its competitive position would have improved through discussions. Because Metropolitan cannot establish a reasonable possibility of prejudice, we will not sustain Metropolitan’s protest on this basis. See Leisure--Lift, Inc., B-291878.3, B-292448.2, Sept. 25, 2003, 2003 CPD ¶ 189 at 10-11; see also Heritage Garden Center, Inc.; S.C. Jones Servs., Inc., supra (no technical discussions necessary where protesters’ proposals received highest available technical ratings and, thus, there was no opportunity for protesters to improve ratings).

Metropolitan contends that discussions were not meaningful with respect to past performance and price. In a negotiated procurement where the agency conducts discussions, those discussions must be meaningful--that is, they must be sufficiently detailed so as to lead the offeror into the areas of its proposal requiring amplification or revision. Honeywell Tech. Solutions, Inc., B-400771, B-400771.2, Jan. 27, 2009, 2009 CPD ¶ 49 at 10; Smiths Detection, Inc., B-298838, B-298838.2, Dec. 22, 2006, 2007 CPD ¶ 5 at 12.

Metropolitan contends that discussions were not meaningful because the agency did not give the firm an opportunity to comment on adverse past performance information. Protest at 19. As described above, in connection with the evaluation of Metropolitan’s past performance, the SEB documented that Metropolitan’s past performance surveys initially included two relatively low ratings, but that those ratings were determined to have resulted from a mistake. AR, Tab 7, SEB Final Report, at 36. As also described above, Metropolitan’s proposal received a rating of low risk under the past performance factor, and low risk was the highest available rating for the past performance factor. Id. at 32-33. Finally, notwithstanding a reference to adverse past performance that appeared in Metropolitan’s written debriefing, we see nothing in the record to suggest that the agency considered Metropolitan’s past performance as indicative of a risk during performance. See id. at 33, 36. Consequently, this basis of protest is denied.

Metropolitan also argues that discussions were not meaningful because, after AllWorld’s proposal was included in the competitive range, the price range of the competitive proposals changed, and Metropolitan’s pricing was considerably less competitive. Metropolitan Comments at 9-11. Along the same line, Metropolitan argues that discussions were not meaningful because the agency failed to inform the firm that its pricing was high in relation to MVM’s and AllWorld’s pricing. Id. at 16. These arguments are untimely because they were raised more than 10 days after Metropolitan’s receipt of the pricing information in the agency report. Bid Protest Regulations, 4 C.F.R. § 21.2(a)(2). In any event, we see nothing in the record to suggest that discussions regarding Metropolitan’s pricing were not meaningful; Metropolitan was advised during discussions that its overall pricing was high and that its pricing for numerous, specified labor categories also was high. AR, Tab 11, Metropolitan Discussion Questions, at 3.

Metropolitan contends that discussions were misleading. In this regard Metropolitan argues that the agency provided Metropolitan with guidance during discussions that allegedly limited the firm’s ability to reduce its pricing, which, in turn, rendered the firm’s proposal noncompetitive. Protest at 17-18; Metropolitan Comments at 15-17. Metropolitan acknowledges that it was informed during discussions that the firm’s overall pricing was high and that its pricing for numerous labor categories also was high. Protest at 17. But the firm was misled, Metropolitan claims, when the agency purportedly encouraged Metropolitan to increase its linguist compensation rates. Id. at 18.

An agency may not mislead an offeror--through the framing of a discussion question or a response to a question--into responding in a manner that does not address the agency’s concerns, or misinform the offeror concerning a problem with its proposal or about the government’s requirements. Academy Facilities Mgmt.--Advisory Opinion, B-401094.3, May 21, 2009, 2009 CPD ¶139 at 6; Multimax, Inc., et al., B-298249.6 et al., Oct. 24, 2006, 2006 CPD ¶ 165 at 12. In the context of discussions relating to cost or price, an agency may not coerce or mislead an offeror during discussions into raising its prices. Academy Facilities Mgmt.--Advisory Opinion, supra.

Here, we see nothing misleading about the discussions that occurred. The record reflects that the agency asked Metropolitan--and MVM and AllWorld--whether the disclosed linguist compensation rates were the best rates that each firm could offer its linguists. AR, Tab 11, Metropolitan Discussion Questions, at 3; AR, Tab 12, MVM Discussion Questions, at 3; AR, Tab 13, AllWorld Discussion Questions, at 3. This question was in each case followed by the statement that “[i]n order to develop and maintain an infrastructure of quality linguists, it is imperative that linguists be paid commensurate with their professional status.” E.g., AR, Tab 11, Metropolitan Discussion Questions, at 3. Contrary to what Metropolitan claims, the notion that an offeror should consider increasing its personnel compensation rates is not suggestive that the pricing offered to the government is competitive where, as here, the agency also notifies the offeror that its overall pricing is high, and that the rates offered for numerous specified labor categories are high. Further, the discussions here did not preclude Metropolitan from making a business decision to increase its linguist compensation rates while at the same time decreasing the rates offered to the government, such that its pricing would have been more competitive.[5] Metropolitan’s decision not to take this course does not render the discussions misleading. This ground of protest is denied.

Finally, Metropolitan asserts that once the agency decided to include AllWorld’s proposal in the competitive range, the agency was obligated to reopen discussions with the other competitive range offerors, and to establish a new, common cut-off date for the receipt of all offerors’ FPRs. Protest at 11; Metropolitan Comments at 17-18. The agency responds that AllWorld was afforded the same number of days to prepare and submit its FPR as the other offerors. Contracting Officer’s Statement at 8-9. The agency also responds that reopening discussions and allowing the original competitive range offerors to submit a second FPR would have been redundant and would have conferred an unfair advantage to those offerors. Id. at 8-9.

The FAR requires that when an agency conducts discussions with one offeror, it must conduct discussions with all offerors whose proposals are determined to be in the competitive range, and it must then allow them to submit revised proposals. FAR §§ 15.306(d)(1), 15.307(b); WorldTravelService, B-284155.3, Mar. 26, 2001, 2001 CPD ¶ 68 at 5-6. The FAR also requires the contracting officer to establish a common cut-off date for receipt of FPRs. FAR § 15.307(b). In the context of discussions, the FAR specifically prohibits agency conduct that favors one offeror over another. FAR § 15.306(e)(1); WorldTravelService, supra.

Although it is true that here, the sequence of events led to differing cut-off dates for the submission of FPRs, we fail to see how Metropolitan was prejudiced. All of the competitive range offerors had the same amount of time to prepare their FPRs following discussions. Further, notwithstanding the differing cut-off dates, Metropolitan’s proposal received the highest available ratings under all of the evaluation factors and subfactors. Thus, given the circumstances here, the occurrence of differing cut-off dates for the submission of FPRs does not provide a basis for our Office to sustain the protest. See Gas Turbine Corp., B-251265.2, May 24, 1993, 93-1 CPD ¶ 400 at 5-6.  (Metropolitan Interpreters and Translators, Inc., B-403912.4, B-403912.5, B-403912.6, B-403912.9, May 31, 2011)  (pdf)


Turning to the merits of the case, discussions occur where a firm is afforded an opportunity to make material revisions to its quote or proposal. The Analysis Group, LLC, B-401726, B-401726.2, Nov. 13, 2009, 2009 CPD ¶ 237 at 2. It is axiomatic that, if a concern makes a revision to its quote or proposal that has the effect of converting it from one that is unacceptable to one that is acceptable and eligible for award, the revision is material and discussions have occurred. Id.

Here, as noted, the record shows that the agency found ASI’s quote and the third vendor’s quote technically unacceptable as submitted. AR, exh. 19, Memorandum from Agency’s Program Manager, Nov. 2, 2011, at 1-2. With respect to ASI’s quote, the agency explains that there were six major questions that, without a revision from ASI, rendered its quotation technically unacceptable. Id.; AR, exh. 16. Similarly, with respect to the third vendor, the record shows that there were seven questions relating to the acceptability of its quote that, without a revision, rendered it technically unacceptable. AR, exh. 19, Memorandum from Agency’s Program Manager, Nov. 2, 2011, at 2; AR, exh. 18.

In response to the agency’s questions, the record shows that both vendors submitted material revisions to their quotations that had the effect of rendering their quotations technically acceptable. AR, exhs. 16, 18. For example, in the case of ASI, the record shows that, among other things, it submitted a number of detailed drawings, a resume for its program manager and details about its proposed training that were absent from its original quote. AR, exh. 16. Since the information submitted was necessary for the agency to find ASI’s (and the third vendor’s) quote technically acceptable, it follows that, in providing the two firms an opportunity to submit these quotation revisions, the agency engaged in discussions. The Analysis Group, LLC, supra at 3.

In contrast, SCI’s responses to the agency’s clarification questions did not revise its quotation. Instead, the responses stated that the initial quote was complete, and included a narrative explanation regarding why its initial quote was complete, along with verbatim quotes from the original submission. For example, the agency sent SCI a clarification request stating that, as understood by the agency, SCI was offering [deleted]. In response to the agency’s request, SCI explained that its original quote was complete, and that [deleted]. SCI then included a verbatim quotation from its original submission relating to [deleted] to demonstrate that, in fact, the agency’s understanding was incorrect. AR, exh. 17, at unnumbered pages 10-11.

The record thus shows that, in the case of ASI and the third vendor, the agency solicited and obtained material proposal revisions that ultimately led the agency to find that these two quotes were technically acceptable; in so doing, the agency engaged in discussions with these two firms. In contrast, the agency solicited and obtained only clarifications from SCI, and SCI, in responding to the agency’s requests, did not make any revisions to its quotation. In other words, the record shows that the agency afforded only two of the three competitors an opportunity to revise their quotes. Under such circumstances, in order to treat all of the competitors equally, the agency was obligated to afford the protester an opportunity to revise its quote as well. The Analysis Group, LLC, supra at 3-4. We therefore sustain SCI’s protest.  (Standard Communications, Inc., B-406021, Jan 24, 2012)  (pdf)


As a final related matter, Cahaba argues that the exchanges between CMS and AdvanceMed regarding AdvanceMed's OCI mitigation plan constituted discussions, which, therefore, should have been held with Cahaba as well. We disagree.

Where an agency holds exchanges with an offeror regarding the offeror's plan to mitigate identified conflicts of interest, we have held that such exchanges do not constitute discussions and, as a consequence, they do not trigger the requirement to hold discussions with other offerors. See Overlook Systems Technologies, Inc., B‑298099.4, B-298099.5, Nov. 28, 2006, 2006 CPD para. 185. Rather, such exchanges are more closely related to matters concerning the offeror's responsibility. Id. at 20.

In this regard, the FAR states as follows:

The contracting officer shall award the contract to the apparent successful offeror unless a conflict of interest is determined to exist that cannot be avoided or mitigated. Before determining to withhold award based on conflict of interest considerations, the contracting officer shall notify the contractor, provide the reasons, therefore, and allow the contractor a reasonable opportunity to respond.

FAR sect. 9.504(e).

As explained in Overlook, this provision contemplates a review after evaluations are completed and after an apparent awardee has been identified--it does not suggest reopening discussions with all offerors.

Here, after identifying AdvanceMed as the apparently successful offeror but for concerns regarding unmitigated conflicts, the agency gave AdvanceMed an opportunity to respond to the concerns in this regard. CMS's actions, while ultimately flawed, were consistent with the process outlined in FAR sect. 9.504(e). To the extent the protester argues that the agency provided AdvanceMed with additional information regarding the timing of the agency's issuance of future task orders (specifically, when it intended to issue task orders for Medicare Parts C and D work) during its exchanges, which necessitated opening discussions with all offerors, this information related solely to the need for and viability of AdvanceMed's amended mitigation strategy, and did not result in AdvanceMed making any changes to its proposal in terms of its technical approach or price.[8] Accordingly, we conclude that CMS's exchanges with AdvanceMed regarding its OCI plan, did not constitute discussions.  (Cahaba Safeguard Administrators, LLC, B-401842.2, January 25, 2010.)  (pdf)


Durand asserts that the discussions following evaluation of offerors' technical proposals were unequal, contrary to the requirements of Federal Acquisition Regulation (FAR) sect. 15.306(a), since the Corps discussed CRIR deficiencies with three offerors, but failed to discuss similar issues with Durand. Protester's Comments at 12, 14.

The scope and extent of discussions with offerors in the competitive range are a matter of the contracting officer's judgment. FAR sect. 15.306(d)(3); Biospherics, Inc., B‑285065, July 13, 2000, 2000 CPD para. 118 at 5. Although discussions may not be conducted in a manner that favors one offeror over another, FAR sect. 15.306(e)(1); see Chemonics Int'l, Inc., B-282555, July 23, 1999, 99-2 CPD para. 61, and offerors must be given an equal opportunity to revise their proposals, discussions need not be identical among offerors; rather, discussions are to be tailored to each offeror's proposal. FAR sections 15.306(d)(1), (e)(1); WorldTravelService, B‑284155.3, Mar. 26, 2001, 2001 CPD para. 68 at 5-6.

The discussions here were unobjectionable. While, as noted, three offerors were advised during discussions that their CRIRs contained weaknesses and deficiencies, Durand's proposal was found acceptable with regard to its CRIR, so the agency determined that there was nothing in that area to discuss with Durand. AR Tabs 8, 9. Durand does not assert that its CRIR included information that should have put the Corps on notice of a problem with its proposed borrow site, and we find nothing in the record showing that the agency otherwise was or should have been aware, at the time of discussions, of the problems that came to light months later. Indeed, as noted above, in providing the Indian and Mississippi State entities an opportunity to comment on Durand's proposed borrow site, the EPCB advised that it did not appear that the site would be problematic. AR Tab 16. Under these circumstances, where the objections to the proposed site were unknown by the agency--from Durand's proposal or otherwise--at the time of discussions, there is no basis for us to find that the discussions with Durand were unequal or otherwise deficient. See Metcalf Constr. Co., Inc., B-289100, Jan. 14, 2002, 2002 CPD para. 31 at 5 (although agency informed other offerors during discussions that their prices exceeded applicable budget ceilings, agency was not required to discuss budget ceilings with protester, whose prices did not exceed ceilings at time of discussions); KBM Group, Inc., B‑281919, B-281919.2, May 3, 1999, 99-1 CPD para. 118 at 10 (agency did not conduct unequal discussions with awardee and protester where agency conducted technical discussions with awardee, whose technical proposal was initially evaluated as containing a number of weaknesses, while conducting no technical discussions with protester, whose initial proposal was evaluated as containing no weaknesses).  (M. Matt Durand, LLC, B-401793, November 23, 2009) (pdf)


It is a fundamental precept of negotiated procurements that discussions, when conducted, must be meaningful; that is, discussions must identify deficiencies and significant weaknesses in each offeror’s proposal that could reasonably be addressed so as to materially enhance the offeror’s potential for receiving award. See Federal Acquisition Regulation (FAR) sect. 15.306(d)(3); PAI Corp., B‑298349, Aug. 18, 2006, 2006 CPD para. 124 at 8; Spherix, Inc., B‑294572, B‑294572.2, Dec. 1, 2004, 2005 CPD para. 3 at 13. Discussions are to be tailored to each offeror’s proposal. FAR sect. 15.306(d)(1). An agency fails to conduct meaningful discussions where it fails to apprise an offeror that its prices were viewed as unreasonably high. Price Waterhouse, B‑220049, Jan. 16, 1986, 86-1 CPD para. 54 at 6-7. Further, an agency may not mislead an offeror--through the framing of a discussion question or a response to a question--into responding in a manner that does not address the agency’s concerns; misinform the offeror concerning a problem with its proposal; or misinform the offeror about the government's requirements. Metro Mach. Corp., B‑281872 et al., Apr. 22, 1999, 99-1 CPD para. 101 at 6.

Here, we find that the Army failed to conduct meaningful discussions with GTE. The record shows that the Army considered GTE’s proposed price to be unreasonably high. In this regard, the contracting officer stated that GTE’s proposed price was never competitive and, in fact, was “unreasonably high when compared to past procurements in 2000 and 2005 of the same services.”[3] Contracting Officer’s Statement at 2. The agency, however, included GTE’s unreasonably high-priced proposal in the competitive range and conducted discussions with the firm, but never informed GTE that the agency viewed GTE’s price to be noncompetitive and unreasonably high, despite the fact that the RFP provided for award to the firm with the low priced, technical acceptable proposal. Instead, as noted above, the Army sent an identical discussions letter to all the competitive range offerors, including GTE, and therefore the Army also failed to tailor its discussions to address areas of concern or weakness in each of the firm’s proposals, as required by FAR sect. 15.306(d)(1).  (Gas Turbine Engines, Inc., B-401868.2, December 14, 2009) (pdf)


Ashbury maintains that the agency failed to engage in adequate discussions with it. As noted, the agency assigned the Ashbury proposal a moderate risk rating based on the firm's failure to include various management plans in its proposal. Noting that the RFP did not require offerors to include such plans in their proposals, Ashbury asserts that the agency should have advised it during discussions that the plans were required. The protester notes further that the agency raised this specific concern with Horus.

The agency concedes that the RFP did not require the management plans and that it raised the matter in discussions with Horus, but maintains that it was not required to discuss the matter with Ashbury because the firm's risk rating did not amount to a weakness assessed against its proposal.

Again, we agree with Ashbury. Ashbury's proposal's moderate risk rating, and the reasons underlying it, were specifically referenced in the agency's source selection decision as the sole technical discriminator for selecting Horus's proposal (rated low risk). Third Business Clearance Memorandum, Jan. 2, 2009, at 12. There is no indication that the agency ever determined that this lower rating was considered only a minor matter; indeed, it was the only evaluated difference in the technical proposals, and, based on the record, appears to have been a material concern to the agency. We thus find no merit in the agency's contention that Ashbury's lower risk rating did not have to be raised during discussions because it was not a significant proposal weakness.

In any case, since the RFP did not call for the management plans in question, it was unreasonable for the agency to downgrade Ashbury's proposal for failing to include them. The agency either should have amended the RFP to include a requirement for the detailed management plans, or informed both firms of the added requirement during discussions. See Hines/Mortenson, B-256543.4, Aug. 10, 1994, 94-2 CPD para. 67 at 5. Because the agency did not amend the solicitation, and downgraded Ashbury's proposal without otherwise informing it of the requirement during discussions, we sustain the protest on this ground.  (Ashbury International Group, Inc., B-401123; B-401123.2, June 1, 2009)  (pdf)


AK-9 challenges the agency's decision to limit discussions to the KM/PM,1 arguing that this resulted in the discussions being unfair and not meaningful. We agree.

The exchanges with EODT regarding its KM/PM were undeniably discussions, given that the agency indicated that this was a "deficiency" and does not deny that without EODT's modification to its proposal its proposed KM/PM did not comply with the RFP requirements. See J.A. Jones/IBC Joint Venture; Black Constr. Co., B-285627, B‑285627.2, Sept 18, 2000, 2000 CPD ¶ 161 at 5. When an agency conducts discussions with one offeror, it must conduct discussions with all other offerors whose proposals have been found in the competitive range. Federal Acquisition Regulation (FAR) § 15.306(d)(1); Global Assocs. Ltd., B-271693, B-271693.2, Aug. 2, 1996, 96-2 CPD ¶ 100 at 4. Moreover, discussions should be meaningful, equitable, and not misleading. The Boeing Co., B-311344 et al., June 18, 2008, 2008 CPD ¶ 114 at 49. That is, discussions, at a minimum, must be in sufficient detail to indicate to each offeror whose proposal remains in the competitive range deficiencies, significant weaknesses, or adverse past performance information to which the offeror has not yet had an opportunity to respond. FAR § 15.306(d)(3). At the conclusion of discussions, each offeror still in the competitive range shall be provided an opportunity to submit a final proposal revision. FAR § 15.307(b). In this regard, offerors, in response to an agency request that discussions be opened or reopened, generally may revise any aspect of their proposals they see fit--including portions of their proposals which were not the subject of discussions. Partnership for Response and Recovery, B-298443.4, Dec. 18, 2006, 2007 CPD ¶ 3 at 3.

As noted by the agency, as a general matter, the details of a corrective action are within the sound discretion and judgment of the contracting agency. Rockwell Elec. Commerce Corp., B-286201.6, Aug. 30, 2001, 2001 CPD ¶ 162 at 4. Moreover, in appropriate circumstances where the agency has established a reasonable basis for doing so, our Office has not objected to an agency's decision to limit discussions under a negotiated procurement in implementing corrective action in response to a protest. See Rel-Tek Sys. & Design, Inc.--Modification of Remedy, B-280463.7, July 1, 1999, 99-2 CPD ¶ 1 at 3.

Here, the agency states that the "discovery of two identical weaknesses in EODT's and AK-9's proposals prompted the contracting officer to enter into discussions with both offerors to address those concerns." AR at 16-17. The agency went on to state that it did not allow "broader revisions" because EODT's prices had been disclosed, and the agency did not want to give one offeror an unfair competitive advantage over another. AR at 20.

We find that the agency's limitation on discussions was unreasonable and inappropriate. This limitation failed to account for other significant weaknesses or deficiencies found in the proposals and thus constituted unequal, not meaningful, discussions. Specifically, the record indicates that the limited discussions were primarily to allow EODT to fix its otherwise unacceptable proposal and did not similarly provide AK-9 with the opportunity to become more competitive through meaningful discussions. See Ridoc Enters., Inc./Myers Investigative & Security Servs., Inc., B-293045.2, July 26, 2004, 2004 CPD ¶ 153 at 3; Rockwell Elec. Commerce Corp., supra, at 4-5.

For example, as quoted in part above, the revised source selection decision document found that AK‑9's price structure represented "performance risk" that "ha[d] the potential for straining [AK-9's] ability to perform the contract in the [REDACTED] option years" and referenced this as one of the discriminators in making the source selection decision. AR, Tab 51, Revised Source Selection Decision (Jan. 24, 2009), at 2. This was not a subject of discussions with AK-9. As noted above, discussions cannot be meaningful if an offeror is not advised of the significant weaknesses or deficiencies that must be addressed in order for its offer to be in line for award. Tiger Truck, LLC, B-400685, Jan. 14, 2009, 2009 CPD ¶ 19 at 8. In our view, this issue was a significant weakness or deficiency that was required to be brought to AK-9's attention during discussions, so that it could be given the opportunity to submit a revised proposal.

AK-9 submitted, with its protest, a declaration from the firm's president that summarized the proposal revisions that AK-9 would have submitted had it been notified by the agency of an opportunity to submit final proposal revisions. For instance, AK-9 states that if discussions had been opened it would have made a "change in [REDACTED]" that would have made its prices [REDACTED]. AK-9's president also declared that if discussions had been opened and revised proposals submitted, AK-9 would have made numerous changes/improvements in its technical and price proposals, for example, [REDACTED]. Protest, exh. HH, Declaration of AK-9 President (Jan. 27, 2009).

In sum, the agency's limitation of discussions here was inappropriate and resulted in the discussions being unfair and not meaningful. The disclosure of EODT's contract price alone does not provide a compelling basis for the failure to provide for meaningful discussions. The possibility that the contract may not have been awarded based on the most advantageous proposal because, for example, discussions are not meaningful, has a more harmful effect on the integrity of the competitive procurement system than the fear of an auction; generally the statutory requirements for competition take priority over any possible concern regarding auction techniques. RS Info. Sys., Inc., B‑287185.2, B-287185.3, May 16, 2001, 2001 CPD ¶ 98 at 4.

Because the discussions were not meaningful, we sustain the protest. However, before we make our recommendation, we discuss a number of concerns we have identified in the record that the agency may wish to address as part of its implementation of our recommendation.

Specifically, the protester asserts that the agency relied upon unstated evaluation subfactors that were not consistent with section M of the RFP. In this regard, as noted above, the agency separately evaluated 10 categories under the technical capability factor that were not stated in section M. While it could be argued that these categories are reasonably contemplated in the evaluation of the technical capability factor, see Avogadro Energy Sys., B-244106, Sept. 9, 1991, 91‑2 CPD ¶ 229 at 4, the Competition in Contracting Act of 1984 requires solicitations to include a statement of all significant factors and significant subfactors that will be considered in the evaluation, as well as their relative importance. 10 U.S.C. § 2305(a)(2)(A) (2006), as implemented by FAR § 15.304(d). The categories here would seem to be significant subfactors, even though they are not specifically labeled as such, and they were not disclosed in the solicitation, nor was their relative weight disclosed. The agency may wish to amend the RFP to address this.

The protester also asserts that the solicitation limited past performance references to five contracts, but that the agency considered far more than five contracts in evaluating EODT's past performance. The agency responds by stating, among other things, that the letter requesting past performance information from the offerors in the competitive range (quoted above) put no limit on contract references. However, as noted by the protester, this letter also expressly referenced sections L and M of the RFP, which contained the five contract limitation. AR, Tab 20, Reevaluation Notice-Contractor Past Performance (Sept. 14, 2008). This is another matter that the agency may wish to address in implementing corrective action.

Finally, the protester asserts that the agency did not properly account for EODT's allegedly adverse performance under the previously awarded CWD contract, which had been protested by AK-9 before the services were obtained from AK-9 on a sole‑source basis. The record shows that as part of the corrective action addressing past performance the agency questioned EODT regarding adverse performance under this contract. In its evaluation documentation, the agency states that EODT responded, "We were forwarded a Stop Work order, therefore, could not perform." The agency evaluators concluded, "The committee considers the concern adequately addressed as the Stop Work order would naturally have precluded contractor performance," and did not negatively consider this past performance in its evaluation of EODT. AR, Tab, 24, Past Performance Re-evaluation Report (Oct. 3, 2008), at 6. However, in an earlier agency report on the EODT protest of the noncompetitive award to AK-9 (and in pleadings filed with the Court of Federal Claims), the agency referenced various instances of [REDACTED] in justifying the sole source award to AK-9. E.g., Protest, exh. O, Agency Report (B‑311349.2), at 9-10. Based on our review of the record the agency has not reconciled its conflicting positions regarding EODT's past performance on this contract.  (American K-9 Detection Services, Inc., B-400464.6, May 5, 2009) (pdf)

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1.  kennel master/project manager


IBTCI argues that the agency held disparate discussions with it and QED because it pointed out weaknesses or deficiencies to QED that were in its proposal during the second round of discussions, but did not similarly point out any weaknesses or deficiencies to IBTCI.

We find that the discussions were not objectionable. Following the first round of discussions, although the scores of both the awardee (62.69) and the protester (57.14) remained relatively low, the agency considered both proposals technically acceptable for award. Negotiation Memorandum at 10. This being the case, the agency was under no obligation to revisit the issues that had already been addressed when it reopened discussions. See Professional Perf. Dev. Group, B-279561.2 et al., supra. At 5 n.3 (when agency reopens discussions it is not required to advise offerors of continuing concerns in areas that have already been subject of adequate discussions).

In its January 28 letter to QED, the agency asked four questions related to two cost issues. The first three questions concerned a new negotiated indirect cost rate agreement (NICRA) that had not been finalized when QED submitted its revised proposal. Discussion Letter, January 28, 2008. Since these questions concerned changed circumstances unique to QED’s proposal--QED’s new NICRA--and were tailored to those unique concerns, raising these questions did not trigger any obligation on the agency’s part to ask IBTCI similar questions, or to reiterate questions raised with the protester during the initial discussions. FAR sect. 15.306(d)(1); see also The H.J. Osterfeld Co., B-257630, Oct. 24, 1994, 94-2 CPD para. 150 at 5 (agency should tailor discussions based on specific deficiencies or weaknesses in each offeror’s proposal).

The fourth question raised with QED, which stated that “Your proposed U.S. fixed daily rates appear high at the Junior Level. Please address this issue,” reiterated a concern raised by the agency during initial discussions. Discussion Letters, September 18, 2007 and January 28, 2008. However, while an agency may not have continuing discussions with only one offeror regarding a certain concern where it has the same concern with other proposals, The Boeing Co., B‑311344 et al., June 18, 2008, 2008 CPD para. 114, an agency properly may reiterate a cost concern with one offeror--where that concern applies only to that offeror, and the agency has no remaining concerns for the other offeror. Portfolio Disposition Mgmt. Group, LLC,supra, at 2.  (International Business & Technical Consultants, Inc., B-310424.2; B-310424.3; B-310424.4, September 23, 2008) (pdf)


It is the actions of the parties that determine whether discussions have been held and not merely the characterization of the exchanges by the agency. Gulf Copper Ship Repair, Inc., B-293706.5, Sept. 10, 2004, 2005 CPD para. 108 at 6. In this regard, we have found that the acid test for deciding whether an agency has engaged in discussions is whether the agency has provided an opportunity for proposals to be revised or modified. See, e.g., Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001.  Here, the record shows that the majority of the small business subcontracting plans submitted by the offerors were found to be unacceptable by the agency, and that, as a result of the agency’s exchanges on this subject with the 10 highest rated offerors (including the awardees), those firms revised their proposals, such that the proposals became acceptable. It is true that in each of the cases cited by DISA we found that exchanges concerning an offeror’s small business subcontracting plan were not discussions because those plans were only evaluated as part of the agency’s responsibility determination. See, e.g., General Dynamics-Ordnance & Tactical Sys., Inc., supra, at 10 (“A request for, or providing of, information that relates to offeror responsibility, rather than proposal evaluation, does not constitute discussions and thus does not trigger the requirement to hold discussions with other competitive range offerors. ”) (footnote omitted). However, in each of these cases, unlike the RFP at issue here, the solicitation did not include a technical evaluation factor under which the comparative merits of offerors’ small business subcontracting plans would be considered to determine which proposal represented the best value to the government and thus entitled to award. Thus, under the circumstances of each of these cases, the assessment of offerors’ small business subcontracting plans could only be done as part of the agency’s responsibility determination.  In contrast, the RFP here provided for a comparative assessment of the offerors’ small business subcontracting plans as part of the agency’s technical evaluation to determine which proposal represented the best value to the government.8 See RFP amend. 12, sect. M.5.2.a.(2)(ii)(6) (“For large businesses, the Government will evaluate the feasibility and comprehensiveness of the Offeror’s planned approach to meeting the established subcontracting goals of . . . .”). In accordance with this evaluation scheme, the agency’s TMAT performed a comparative evaluation of the offerors’ proposed small business subcontracting plans that were provided as part of the offerors’ technical/management approach proposals, assigning strengths and weaknesses for each proposal. See, e.g., AR, Tab 881, SSAC Evaluation Report, app. 4, Technical/Management Approach Factor Evaluation, at 103 (SRA’s proposal was evaluated as exceeding the small business subcontracting plan requirements, with a number of strengths, including that the firm had committed to exceeding the small business goal); see also id. at 189, 212 ([Deleted]’s and [Deleted]’s proposals were evaluated as exceeding the small business subcontracting plan requirements, with a number of strengths and no weaknesses). In contrast, [Deleted]’s proposed small business subcontracting plan was evaluated as failing to satisfy the solicitation requirements and a number of weaknesses were assigned, including that the proposal did not adequately address how the firm would meet small business goals. Id. at 279. The SSA, in her selection decision, specifically recognized the relative strengths and weaknesses assessed in the offerors’ proposed small business subcontracting plans. See, e.g., AR, Tab 894x, Source Selection Decision, at 15 (“[Deleted] has committed to exceeding goals for [small businesses and other small business entities identified in the RFP for which goals were identified]”), and at 20 (“CSC did not provide details on how they were going to meet or exceed small business goals”).

DISA also contends that these exchanges do not constitute discussions because they relate only to the small business subcontracting plan that was submitted as part of the general contract information proposal and not to the plan that was submitted as part of the technical/management approach proposal. DISA and the intervenors argue that the solicitation informed offerors that the small business subcontracting plans submitted with the firms’ general contract information proposals would not be considered in the agency’s technical evaluation, and that the RFP informed offerors that the agency would not conduct discussions with regard to the small business subcontracting plans. See RFP amend. 12, sect. L.3.c. DISA also states in this regard that offerors’ revisions to their small business subcontracting plans were not provided to the agency’s TMAT and therefore did not affect the firms’ technical/management approach factor evaluations. See Agency Legal Memorandum at 15.  We do not agree that the solicitation provided that offerors’ small business subcontracting plans (and more specifically their promises to satisfy or exceed the small business subcontracting goals) would not be evaluated by the agency in its consideration of the firms’ proposals under the technical/management approach factor. Rather, as noted above, the RFP specifically stated that the firms’ promises to satisfy the solicitation’s mandatory subcontracting goals would be considered under this factor.9 See RFP amend. 12, sect. M.5.2.a.(2)(ii)(6). In fact, these promises were specifically considered by the TMAT, the SSAC, and the SSA in their consideration of the relative merits of the firms’ technical/management approach proposals. See, e.g., AR, Tab 894x, Source Selection Decision, at 15, where the SSA recognized that SAIC had committed to exceeding the small business subcontracting goals.  In conclusion, we find that the agency’s exchanges with the offerors, which allowed a majority of the highest rated offerors to revise their proposals in a material way, were not clarifications but were discussions. As noted above, when an agency conducts discussions with one offeror, it must conduct discussions with all other offerors whose proposals are in the competitive range, and those discussions must be meaningful; that is, the discussions must identify deficiencies and significant weaknesses in each offeror’s proposal. See Spherix, Inc., supra, at 13-14. Here, the record establishes that the protesters were prejudiced, because, although the agency conducted discussions with CSC, NGIT, and IBM concerning their subcontracting plans, the discussions with the protesters were not meaningful, given that there were a number of significant weaknesses identified in each of the protesters’ proposals, and considered by the SSA in her selection decision, which the protesters were never given an opportunity to address, but which could have been altered or explained to materially enhance the proposals’ potential for award. See, e.g., AR, Tab 894x, Source Selection Decision, at 19-21, 24, and 27-28 (identifying numerous weaknesses in the protesters’ proposals).  Computer Sciences Corporation; Unisys Corporation; Northrop Grumman Information Technology, Inc.; IBM Business Consulting Services--Federal, B-298494.2; B-298494.3; B-298494.4; B-298494.5; B-298494.6; B-298494.7; B-298494.8; B-298494.9; B-298494.10; B-298494.11; B-298494.12; B-298494.13; B-298494.14, May 10, 2007.  (pdf)


In our view, the corrective action here is well within the broad discretion afforded to contracting agencies in these circumstances. As described above, during the course of defending the previous protest, it came to the agency’s attention that there were various errors in this procurement that warranted reopening discussions; as indicated above, the agency is not required to limit the scope of discussions in such circumstances. To the extent that PaRR argues that because offerors were informed of its low price, rescinding the original award and reopening the competition will foster an auction and put PaRR at a competitive disadvantage, we have previously noted that the Federal Acquisition Regulation does not prohibit auctions, and agencies are not otherwise prohibited from taking corrective action in the form of requesting revised price proposals where the original awardee’s price has been disclosed. In this regard, we have repeatedly observed that the possibility that the contract may not have been awarded based on a fair determination of the most advantageous proposal has a more harmful effect on the integrity of the competitive procurement system than does the possibility that the original awardee will be at a disadvantage in the reopened competition. PCA Aerospace, Inc., B-293042.3, Feb. 17, 2004, 2004 CPD para. 65 at 4. Moreover, as described above, significant new requirements of HSPD-12 that have been added to the solicitation will require revised technical proposals and prices. Under the circumstances, the agency can choose not to limit discussions and revised proposals. (Partnership for Response and Recovery, B-298443.4, December 18, 2006) (pdf)


GIV first protests that it was improper for CDC to seek additional information from McKesson regarding its information technology system security plans, thereby permitting McKesson to revise its initially unacceptable responses. Specifically, GIV argues that CDC’s March 7 inquiry to McKesson constituted prohibited discussions. CDC responds that nothing prohibited exchanges with McKesson in this regard. We agree that CDC’s exchanges with McKesson seeking additional information about its security systems constituted discussions, rather than clarifications, because CDC needed this information to conclude that McKesson’s proposal was acceptable. See Nu‑Way, Inc., B-296435.5, B-296435.10, Sept. 28, 2005, 2005 CPD para. 195 at 7. However, GIV was not competitively prejudiced by these discussions. As noted, GIV was similarly provided discussions and an opportunity to revise its proposal prior to CDC’s final competitive range determination. GIV places significant emphasis on the RFP provision that “proposals that do not pass this first level of screening will not be further considered in the Source Selection process.” RFP amend. 5, at 22. To the extent that GIV is reading this provision as precluding CDC from conducting discussions with offerors in connection with the “pre-screening” process, GIV has failed to identify a persuasive rationale for its interpretation. Accordingly, we decline to sustain its protest of the agency’s determination that McKesson ultimately met the go/no-go security plan requirements. (General Injectables & Vaccines, Inc., B-298590; B-298590.2; B-298590.3, November 15, 2006) (pdf)


Communications between a procuring agency and an offeror that permit the offeror to materially revise or modify its proposal generally constitute discussions. FAR sect. 15.306(d); Lockheed Martin Simulation, Training & Support, B-292836.8 et al., Nov. 4, 2004, 2005 CPD para. 27; 4th Dimension Software, Inc.; Computer Assocs. Int’l, Inc., B‑251936, B-251936.2, May 13, 1993, 93-1 CPD para. 420. In this regard, communications that permit an offeror to correct a mistake constitute discussions unless the mistake is minor and both the existence of the mistake and what was actually intended are clearly apparent from the face of the proposal. Matrix Int’l Logistics, Inc., B-272388, B-272388.2, Dec. 9, 1996, 97-2 CPD para. 89; Stacor Corp., B‑231095, July 5, 1988, 88-2 CPD para. 9. If an agency does conduct discussions with one offeror, it must conduct discussions with all competitive range offerors, and provide all such offerors an opportunity to submit revised proposals. KPMG Peat Marwick, LLP, B‑259479, May 9, 1995, 95-2 CPD para. 13; Paramax Sys. Corp., B-253098.4 et al., Oct. 27, 1993, 93-2 CPD para. 282. Here, it is clear the agency conducted discussions with Palmetto following submission of FRPs. As discussed above, the agency’s FRP specifically provided that the LOE templates were a required part of the offerors’ cost/price proposals. AR, Tab 37, FRP Request (Nov. 30, 2005), at 2-3. With regard to the materiality of the error in the LOE template, Palmetto itself characterizes its FRP submission as reflecting a “gross[] overstate[ment]” of its intended level of effort, and the agency’s contemporaneous documents establish that the agency relied on Palmetto’s post‑FRP revisions regarding the proposed level of effort in making the contracting officer’s and SSB’s award recommendations, and the SSA’s source selection decision. AR, Tab 41, at 21; Tab 45, at 6, 16. Finally, as acknowledged by the BEP chair during the GAO hearing, the agency could not discern Palmetto’s intent with regard to the final proposed level of effort from the face of Palmetto’s FRP without the additional post-FRP submissions. On this record alone, it is clear the post-FRP communications constituted discussions. In addition, Palmetto’s post-FRP submission of various other changes to its cost/price proposal support the conclusion that discussions were conducted. With regard to Palmetto’s December 13 e-mail referencing “Revised DMAC Schedules,” and including the table listing various errors in its FRP, it is clear that neither the existence of the errors identified in that table, nor what Palmetto’s actual intentions were with regard to the errors, was apparent from the face of Palmetto’s FRP. Specifically, it is clear that Palmetto’s proposed rate of [deleted] for the “[deleted] cost pool,” was not an obvious error apparent from the face of Palmetto’s proposal, nor was there any way for the agency to determine that the rate “should have been” [deleted]. Similarly, since Palmetto testified that the errata table itself contains an error, there can be no suggestion that the face of Palmetto’s FRP clearly established what Palmetto intended in this regard. On this record, we reject the agency’s and Palmetto’s assertions that the post-FRP communications, during which the agency permitted Palmetto to make significant revisions to its proposal, should be considered as merely minor corrections. Rather, the communications clearly constituted discussions concerning material aspects of Palmetto’s proposal, which triggered the agency’s obligation to give CIGNA a similar opportunity to revise its proposal. (CIGNA Government Services, B-297915.2, LLC, May 4, 2006) (pdf)


Here, the agency conducted discussions with FLAG in the areas of past performance and surge and sustainment, after which it rated the firm's proposal [deleted] in both areas. Had the agency done nothing further, we would have no basis to object to its actions, since agencies are not required to afford offerors multiple rounds of discussions in areas that have been the subject of prior discussions where the agency's concerns remain unresolved. Portfolio Mgmt. Disposition Group , B-293105.7, Nov. 12, 2004, 2005 CPD paragraph __ at 2. However, as FLAG alleges, the agency afforded two of the competitive range offerors additional discussions in areas that had previously been discussed with those firms, but did not extend the same opportunity to FLAG. Specifically, the record shows that the agency provided AC Fabricated initial discussion questions in the areas of [deleted], but the firm apparently did not submit a timely reply to the agency's initial questions. Consequently, the agency afforded AC Fabricators a second opportunity to revise its proposal in these areas. AR, exh. 16. This second round of discussions resulted in AC Fabricators' proposal being upgraded from [deleted] to [deleted] under the [deleted] criterion, which in turn resulted in the firm's overall rating being upgraded from [deleted] to [deleted]. AR, exh. 13, at 9-10; AR, exh. 37, at 23. With regard to Tullahoma, the record shows that the agency initially discussed [deleted] with the firm, and then afforded it a second opportunity to provide additional information in the area of [deleted]. AR, exh. 17. While the additional information did not result in a change in the firm's adjectival rating under the [deleted] criterion, the record shows that it did result in the agency's source selection official distinguishing Tullahoma's proposal from FLAG's under that criterion; Tullahoma's proposal ultimately was rated [deleted] to FLAG's based, in part, on the additional information submitted by Tullahoma during the second round of discussions. AR, exh. 43, at 44. In view of the foregoing considerations, we find that the agency's actions amounted to disparate treatment of the competing offerors. Since there is no way to determine how FLAG's proposal would have been evaluated had the firm been afforded additional discussions in the areas of [deleted], we further find that FLAG was prejudiced by the disparate treatment. We sustain FLAG's protest on this basis. (Front Line Apparel Group, B-295989, June 1, 2005) (pdf)


We sustain the protest on the basis that the agency's action in engaging in discussions only with Anteon was improper, and improperly favored Anteon over Gulf Copper. We recommend that the agency reopen discussions with all offerors whose proposals are within the competitive range, obtain revised proposals, evaluate the revised proposals in a manner consistent with the solicitation requirements, and make a new source selection decision. In the event that the Navy determines that an offeror or offerors other than Anteon and Southwest have submitted the best value proposals, the agency should terminate the contract(s) of the offeror(s) no longer in line for award. We also recommend that the agency reimburse the protester its cost of pursuing this protest, including reasonable attorney's fees. 4 C.F.R Section21.8(d) (2004). The protester should submit its certified claim for costs, detailing the time expended and the costs incurred, directly to the contracting agency within 60 days of receipt of this decision. 4 C.F.R. Section 21.6(f)(1). (Gulf Copper Ship Repair, Inc., B-293706.5, September 10, 2004)  (pdf)


This argument is without merit. DIY never received discussion questions simply because, as discussed above, DIYs proposal was not included in the competitive range. The purpose of a competitive range determination is to select those offerors with which the agency will hold written or oral discussions. PeopleWorks, Inc. , B257296, Sept. 2, 1994, 94-2CPD 89 at 3. Contracting agencies are not required to retain a proposal in the competitive range where the proposal is not among the most highly rated or where the agency otherwise reasonably concludes that the proposal has no realistic prospect of being selected for award. Federal Acquisition Regulation 15.306(c)(1); Americom Govt Servs., Inc. , B292242, Aug. 1, 2003, 2003 CPD 163 at 3. Once an offerors proposal has been excluded from the competitive range, the agency has no obligation to conduct discussions with the offeror. SOS Interpreting, Ltd. , B-287505, June 12, 2001, 2001 CPD 104 at 12. Since DIYs proposal was not in the competitive range, DIY was not entitled to discussions; there thus is no basis for concluding that the agency accorded DIY unequal treatment, or otherwise acted improperly. (DIY, Inc., B-293105.9, December 20, 2004) (pdf)


The Federal Acquisition Regulation (FAR) provides that, when an agency conducts discussions with one offeror, it must conduct discussions with all offerors whose proposals are determined to be in the competitive range, and it must then allow them to submit revised proposals. FAR 15.306(d)(1), 15.307(b); World Travel Serv. , B284155.3, Mar. 26, 2001, 2001 CPD 68 at 5-6. The EPA's corrective action here--a complete reevaluation of proposals by a new TEP--led to a determination that all three offerors' proposals should have been included in the competitive range. If the agency had not conducted further discussions with any offeror, the agency's corrective action might have been adequate. As explained above, however, the agency, based on the earlier determination that Eagle's proposal was the only one in the competition range, had conducted an additional round of discussions solely with that firm. Once the agency decided to revise the competitive range determination by including two more proposals, the fact that the additional round of discussions had been limited to Eagle had to be addressed as part of the agency's corrective action. Specifically, after the EPA determined that the proposals of Ridoc and Offeror A should have been included in the competitive range, the agency's failure to conduct another round of discussions with those firms and to afford them the same opportunity to submit a second revised proposal as had been afforded to Eagle was inconsistent with the government's obligation to give all offerors whose proposals were in the competitive range the same opportunity to learn about the government's concerns regarding their proposals and to revise those proposals. See Rockwell Elec. Commerce Corp. , B-286201.6, Aug. 30, 2001, 2001 CPD 162 at 5. (Ridoc Enterprises, Inc./Myers Investigative & Security Services, Inc., B-293045.2, July 26, 2004) (PDF)


Warden asserts that its quote was included in the competitive range--as evidenced by its receipt of the two RFQ amendments--and that it therefore was entitled to meaningful discussions before submitting its revised quote.  Federal Acquisition Regulation (FAR) § 15.306(c).  Warden's assertions are without merit and are based on a misunderstanding of the circumstances of this procurement.  Contrary to Warden's expressed understanding, its quote was not included in a "competitive range" either before or after the amendments were issued.  Rather, as discussed above, both its initial and revised quotes were evaluated as unacceptable.  Agency Report (AR), exh. 12, at 3, 5.  Where a quote is eliminated from the competition as unacceptable, the vendor is not entitled to discussions.  See Drytech, Inc., B‑246276.2, Apr. 28, 1992, 92‑1 CPD ¶ 398 at 7‑8.  The agency provided the amendments to Warden despite the unacceptability of its original quote only after determining that the amendments made significant revisions to the RFQ; the agency concluded that Warden should be given the opportunity to respond to the agency's actual requirements.  Providing this opportunity did not reverse the prior evaluation and place Warden's unacceptable proposal in a competitive range for discussion purposes; rather, it merely returned the procurement to the quotation submission/evaluation stage.  Accordingly, Warden was not entitled to discussions based on the agency's actions.  (Warden Associates, Inc., B-291238, December 9, 2002.)  (pdf)


Since discussions were reopened with MCI to advise MCI of the defect in its proposal, and MCI was permitted to revise its proposal, SSA was required to conduct discussions with all offerors whose proposals had been found in the competitive range and allow those offerors to submit proposal revisions.  (Rockwell Electronic Commerce Corporation, B-286201.6, August 30, 2001)


Similarly, if discussions are reopened with one offeror after receipt of final revised proposals, they must be reopened with all offerors in the competitive range. Patriot Contract Servs., LLC et al., B-278276 et al., Sept. 22, 1998, 98-2 CPD para. 77 at 5 n.3. Discussions occur when an offeror is given the opportunity to revise or modify its proposal, or when information requested from and provided by an offeror is essential for determining the acceptability of its proposal. FAR sect. 15.306(d); J. A. Jones/ IBC Joint Venture; Black Constr. Co., B-285627.2, Sept. 18, 2000, 2000 CPD para. 161 at 5.  (International Resources Group, B-286663, January 31, 2001)

Comptroller General - Listing of Decisions

For the Government For the Protester
Hughes Network Systems, LLC B-409666.5, B-409666.6: Jan 15, 2015  (pdf) Cascadian American Enterprises B-412208.3 ,B-412208.4: Feb 5, 2016  (pdf)
Staples Contract & Commercial, Inc., B-409528.34, B-409528.37: Dec 3, 2014  (pdf) Standard Communications, Inc., B-406021, Jan 24, 2012  (pdf)
Presidio Networked Solutions, Inc.; Mercom Corporation; MicroTechnologies, LLC, B-408128.33, B-408128.35, B-408128.36, B-408128.50: Oct 31, 2014  (pdf) Gas Turbine Engines, Inc., B-401868.2, December 14, 2009 (pdf)
Metropolitan Interpreters and Translators, Inc., B-403912.4, B-403912.5, B-403912.6, B-403912.9, May 31, 2011  (pdf) Ashbury International Group, Inc., B-401123; B-401123.2, June 1, 2009  (pdf)
Cahaba Safeguard Administrators, LLC, B-401842.2, January 25, 2010.  (pdf) American K-9 Detection Services, Inc., B-400464.6, May 5, 2009 (pdf)
M. Matt Durand, LLC, B-401793, November 23, 2009 (pdf) Computer Sciences Corporation; Unisys Corporation; Northrop Grumman Information Technology, Inc.; IBM Business Consulting Services--Federal, B-298494.2; B-298494.3; B-298494.4; B-298494.5; B-298494.6; B-298494.7; B-298494.8; B-298494.9; B-298494.10; B-298494.11; B-298494.12; B-298494.13; B-298494.14, May 10, 2007.  (pdf)
International Business & Technical Consultants, Inc., B-310424.2; B-310424.3; B-310424.4, September 23, 2008 (pdf) CIGNA Government Services, B-297915.2, LLC, May 4, 2006 (pdf)
Partnership for Response and Recovery, B-298443.4, December 18, 2006) (pdf) Front Line Apparel Group, B-295989, June 1, 2005 (pdf)
General Injectables & Vaccines, Inc., B-298590; B-298590.2; B-298590.3, November 15, 2006 (pdf) Gulf Copper Ship Repair, Inc., B-293706.5, September 10, 2004)  (pdf)
DIY, Inc., B-293105.9, December 20, 2004 (pdf) Ridoc Enterprises, Inc./Myers Investigative & Security Services, Inc., B-293045.2, July 26, 2004 (PDF)
Warden Associates, Inc., B-291238, December 9, 2002.  (pdf) Rockwell Electronic Commerce Corporation, B-286201.6, August 30, 2001
  International Resources Group, B-286663, January 31, 2001
  Chemonics International, Inc., B-282555, July 23, 1999

U. S. Court of Federal Claims - Key Excerpts

New B. Iron Bow Has Not Demonstrated Any Error Regarding Discussions.

1. Discussions Generally

The law with regard to discussions is well-settled. “At a minimum the contracting officer must … discuss with, each offeror still being considered for award, deficiencies, significant weakness, and adverse past performance information to which the offeror has not yet had an opportunity to respond.” 48 C.F.R. § 15.306(d)(3). However, “[t]he scope and extent of discussions are a matter of contracting officer judgment.” Id. Accordingly, “the contracting officer has considerable discretion regarding the contents of the discussions.” IBM Corp. v. United States, 101 Fed. Cl. 746, 764 (2011).

“There is no rule” that requires an agency “discuss every weakness appearing in. . . [a] proposal.” Lyon Shipyard, Inc. v. United States, 113 Fed. Cl. 347, 356 (2013); see also 48 C.F.R. § 15306(d)(3) (stating that “the contracting officer is not required to discuss every area where the proposal could be improved”). Government agencies need not “‘spoon-feed’ an offeror as to each and every item that must be revised, added or otherwise addressed to improve a proposal,” nor are agencies required to “address in express detail all inferior or inadequate aspects of a proposal.” D & S Consultants, Inc. v. United States, 101 Fed. Cl. 23, 40 (2011) (citations omitted). An agency satisfies its obligation regarding meaningful discussions when it “generally lead[s] offerors into the areas of their proposals requiring amplification or correction.” PGBA, LLC v. United States, 60 Fed. Cl. 196, 217 n.25 (2004), aff’d, 389 F.3d 1219 (Fed. Cir. 2004) (citation omitted); accord D & S Consultants, 101 Fed. Cl. at 40.

In this connection, an agency may not mislead an offeror during discussions, nor may an agency favor one offeror over another. See DMS All-Star Joint Venture v. United States, 90 Fed. Cl. 653, 669–70, 672 (2010); 48 C.F.R. § 15.306(e)(1). An agency cannot "misdirect[s] the protestor as it revises its proposal." DMS All-Star Joint Venture, 90 Fed. Cl. at 670 (citation omitted). The government is not, however, under an obligation to address issues that were not problematic in a proposal. Where an offeror decides to make changes to a proposal without raising the proposed changes first with the government during the discussion phase, the offeror runs the risk that the changes will be misunderstood or rejected. As the GAO recently explained in a protest, much like this one involving a changed proposal, "in a post-discussion proposal revision, an agency has no duty to reopen discussions or conduct additional rounds of discussions." Matter of Raytheon Con., B-403110.3 (Apr. 26, 2011).  (Iron Bow Technologies, LLC v. U. S. and Alamo City Engineer Services, Inc., No. 17-603C September 14, 2017)


c. The Contracting Officer’s Decision Not To Conduct Negotiations With Offerors Was Arbitrary, Capricious, And An Abuse Of Discretion.

COs “are entitled to exercise discretion upon a broad range of issues confronting them in the procurement process.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001). Thus, as a matter of law, if the CO’s decision reflects “rational reasoning and consideration of relevant factors,” the court is required to defer to the CO’s decision, even if it is one the court would have determined differently. See Savantage Fin. Servs. v. United States, 595 F.3d 1232, 1286 (“[W]e must sustain an agency action unless the action does not evince rational reasoning and consideration of relevant factors”) (internal quotations omitted); see also Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed.Cir.1989) (“If the court finds a reasonable basis for the agency's [procurement decision], the court should stay its hand even though it might, as an original proposition, have reached a different conclusion [.]”) Nevertheless, the court must be “enabled to perform reasonable review within the within the strictures of the APA.” In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002).

As the United States Supreme Court has explained, an agency violates the APA when it “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [the decision] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (emphasis added).

In this case, the CO failed to consider an “important aspect of the problem:” the fact that Level 3’s offer was approximately $38.6 million 23 less than Verizon’s. Under these circumstances, the CO should have entered into negotiations with offerors, since Standard Provision 24 expressly reserves that right. AR Tab 5, at 158.

Nominally, DISA was interested in getting the new telecommunication line up and running as soon as possible, but DISA revised the service date from November 30, 2015 to May 2, 2016. But, DISA awarded the contract to Verizon with knowledge that Verizon could not meet the May 2, 2016 service date, because of the required 150 day lead time. AR Tab 7, at 271 (amendment to the required service date from November 30, 2016 to May 2, 2016); AR Tab 21B, at 1017 (Verizon’s offer providing 150 days of lead time). Therefore, the essence of time was not a dispositive factor preventing negotiations to obtain the best value for the agency.

During the hearing on the parties’ Cross-Motions For Judgment On The Administrative Record, the court asked why the Government did not seek any “clarification,” about the concerns raised between the map and Level 3’s written representations and past performance, in light of the $38.6 million difference between Level 3’s and Verizon’s offers:

THE COURT: The Government awarded a contract to Verizon, which was $30 million more than the people who had been doing the job --

[THE GOVERNMENT]: That’s correct.

THE COURT: -- based on the map. And no one bothered to think about picking up the phone and saying hmm, hmm -- as my grandson [Roark] would say -- I wonder if there’s a problem with the map? Or was something else going on?

9/15/16 TR at 25.

In a recent article, Professor Ralph C. Nash described the CO’s decision in this case to award the contract to Verizon as “egregious,” and, in analyzing the GAO’s June 21, 2016 decision denying Level 3’s protest, observed that:

We certainly agree with the GAO that it is an offeror’s responsibility to submit a perfect proposal or quotation and that it deserves to be punished for not doing so . . . . However, we don’t agree that the Government should also be punished when this happens. This is especially true when the punishment costs the taxpayers multimillions of dollars. Our complaint here is with the Contracting Officer that concluded that there was no need for discussions with these two offerors . . . . Such a step would have taken a week or two but would have saved U.S. taxpayers millions of dollars. . . . Our current competitive negotiation process constitutes a critiquing of proposal language, not an endeavor to negotiate the best deal for the Government. If we were trying to make up a scenario to illustrate this point, we would have never come up with as clear an example as Level 3.

Vernon J. Edwards and Ralph C. Nash, “Our Competitive Process: It’s Expensive!,” 30 No. 9 Nash & Cibinic Rep. ¶ 48 (Sept. 2016).

Under these circumstances, the court has determined that the CO’s decision not to enter into negotiations in light of the significant price disparity was arbitrary, capricious, and an abuse of discretion.  (Level 3 Communications, LLC v. U. S. and Verizon Deutschland GmbH, No. 16-829 December 5, 2016)


The Air Force received twenty-five proposals and anticipated issuing awards by December 3, 2013. Id. at 118, 233, 1447. The evaluation process was completed in a timely manner but, because of the sequestration and furloughs of government personnel in the Fall of 2013, the contracts were not awarded. Id. at 1961. Because of the delay between the evaluation and any award, the Air Force issued Amendment 0009 on April 23, 2014, requesting offerors to verify that their prices had not changed or provide updated pricing with a detailed explanation underlying the changes. Id. at 242-43. The offerors were also asked to resubmit resumes of key personnel to account for any changeover in employment. Id. Offerors were instructed to respond to Amendment 0009 by April 30, 2014. Id.

(sections deleted)

B. Amendment 0009 Did Not Call For Discussions Under FAR § 15.306(d)

In negotiated procurements, amendments to solicitations are governed by FAR § 15.206. See 48 C.F.R. § 15.206. Under the terms of § 15.206, amendments may be issued after proposals are received and even after proposals have been evaluated in certain circumstances. Specifically, an agency may amend a solicitation after an initial round of evaluations “where the record shows that the agency made the decision to take this action in good faith, without the specific intent of changing a particular offeror’s technical ranking or avoiding an award to a particular offeror.” Mantech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 73 (2001), aff’d, 30 F. App’x 995 (Fed. Cir. 2002) (quoting Fed. Sec. Sys., Inc., B-281745.2, 99-1 CPD ¶ 86, at 5, 1999 WL 292729 (Comp. Gen. Apr. 29, 1999)).

In addition to authorizing solicitation amendments, the FAR also authorizes agencies to conduct discussions with certain offerors pursuant to FAR § 15.306(d).  Section 15.306(d) permits individualized negotiations with offerors “to maximize the Government’s ability to obtain best value” in a procurement. 48 C.F.R. § 15.306(d)(2). Under the § 15.306(d), discussions occur after the establishment of a competitive range of bidders. Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1318 (Fed. Cir. 2003) (“if the agency decides to hold discussions, however, it must first establish a competitive range ‘comprised of the most highly rated proposals.’” (quoting 48 C.F.R. § 15.306(c)(1)). In this context, “‘discussions involve negotiations’ and ‘are undertaken with the intent of allowing the offeror to revise its proposal.’” Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1332 (Fed. Cir. 2004) (quoting Info. Tech., 316 F.3d at 1321).

Equa argues that the Air Force violated § 15.306(d) because Amendment 0009 was “‘undertaken with the intent of allowing the offeror to revise its proposal’ and . . . [thus Amendment 0009] constituted ‘discussions’ within the meaning of the FAR and Federal Circuit precedent.” Pl.’s Mot. 10. Under these circumstances, plaintiff argues, opportunity to make it more competitive. Plaintiff argues that the amendment, in conjunction with the accompanying memorandum and emails, constituted an implied invitation to offerors to negotiate with the government by offering more competitive prices. Plaintiff contends that the agency purposefully crafted an open-ended amendment in order to permit offerors to revise their proposals beyond the purported scope of the amendment. While it is undisputed that no actual discussion or negotiation between the government and any offeror appears to have occurred, plaintiff contends that the fact that several offerors took the opportunity to revise their proposals caused the process to take on the characteristics of discussions. Further, plaintiff argues that the initial selection decision created a de facto competitive range, which is a prerequisite to holding discussions.

In response, the government argues that Amendment 0009 did not amount to “discussions” within the meaning of § 15.306(d) because it only allowed offerors the opportunity to update their pricing information and personnel submissions due to delays in the procurement process and had nothing to do with selecting an awardee after a competitive range decision. In this connection, the government also argues that Amendment 0009 could not constitute “discussions” because it was limited to asking all offerors to update their price and personnel-related information only and did not address any aspect of an offeror’s technical proposal. The government notes that offerors were not permitted to make changes to any other portion of their proposals and all offerors were given the same opportunity to submit their changes, regardless of their ranking.

Finally, the government argues, Amendment 0009 did not call for discussions, because the Solicitation expressly stated that “[t]he Government intends to evaluate proposals without discussions with offerors,” AR 173, and that the administrative record establishes that no discussions were conducted with any offerors. In such circumstances, the government concludes, Amendment 0009 did not fall within the terms of FAR 15.306(d). 

The court agrees with the government that Amendment 0009 did not trigger the discussions provisions of the FAR and thus the Air Force did not err in failing to identify to Equa “significant weaknesses, deficiencies, and other aspects of its proposal . . . to materially enhance [Equa’s] potential for award.’” It is clear that Amendment 0009 was not issued after a competitive range determination or for the purpose of allowing the Air Force to make a best value decision. Rather, the court finds that Amendment 0009 met the criteria of FAR § 15.206 and was therefore lawful. As discussed above, the Air Force was authorized under FAR § 15.206 and established precedent to seek updated price and personnel information from all offerors after there had been an initial evaluation process. Here, the Air Force had a good faith reason for doing so: the delay between the offerors’ initial submissions and the award decision. The record demonstrates that all offerors were given the same opportunity to respond and there is no evidence that the request was made to aid any specific offeror. Further, it is undisputed that there is no evidence in the record that any actual conversations occurred.  While plaintiff argues that the actions of the offerors and the agency effectively created a negotiation, the court finds no evidence of back-and-forth. Additionally, there is no evidence in the record that the agency wished to receive more competitive bids in response to the amendment. Indeed, one of the awardees raised its bid in response to the amendment, AR 1138, while an offeror that lowered its prices to become more competitive was not selected, id. at 780. Where, as here, the amendment applied to all offerors and was not designed to improve the chances of any particular offerors, the amendment was lawful and did not trigger the right to discussions under § 15.306(d). See Galen, 369 F.3d 1332-33.  (Equa Solutions, Inc. v. U. S., No. 14-1214C, February 23, 2015)  (pdf)


We noted, supra, that FAR § 19.702(a)(1) provides that a subcontracting plan shall be required from the “apparently successful offeror,” (here, LB&B), and states that said offeror shall be ineligible for award “[i]f the apparently successful offeror fails to negotiate a subcontracting plan acceptable to the contracting officer within the time limit prescribed by the contracting officer.” FAR § 19.702(a)(1). Furthermore, FAR § 19.705- 4 sets forth the additional requirement that “[t]he contracting officer must review the subcontracting plan...” and provides this instruction: “In determining the acceptability of a proposed subcontracting plan, the contracting officer should take the following actions:...(7) Obtain advice and recommendations from the SBA procurements center representative (if any) and the agency small business specialist.” FAR § 19.705-4(d). Therefore, we are constrained to hold that the agency actions in requesting LB&B’s subcontracting plan, and negotiating with LB&B to ensure that the subcontracting plan was acceptable, was not only contemplated by the FAR, but required by it. Additionally, the plain language distinguishes these communications from the broad discussions contemplated by FAR § 19.305 in that it is clear that only the “apparently successful offeror” need be engaged in subcontracting negotiations, and such negotiations are patently not of the type that permit offerors to revise their proposals. Our holding here is further bolstered by the holding in Kahn Instruments, B-277973, Dec. 15, 1997, 98-1 CPD ¶ 11, 1997 U.S. Comp. Gen. LEXIS 493, wherein the GAO held that “subcontracting plan[s] relate[] to an offeror’s responsibility, even where the solicitation requests the offeror submit the plan with its proposal. A.B. Dick Co., B-233142, Jan. 31, 1989, 89-1 CPD ¶ 106 at 3. Thus, we have found that an agency’s request for a subcontracting plan does not constitute discussions or require that revised proposals be solicited from all offerors. Id. n7.” Kahn, 1997 U.S. Comp. Gen. LEXIS 493, at *22.  (Consolidated Engineering Services, Inc., v. U. S. and LB & B Associates Inc., No. 04-1784C, February 14, 2005; March 30, 2005) (pdf)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
New Iron Bow Technologies, LLC v. U. S. and Alamo City Engineer Services, Inc., No. 17-603C September 14, 2017 Level 3 Communications, LLC v. U. S. and Verizon Deutschland GmbH, No. 16-829 December 5, 2016
Equa Solutions, Inc. v. U. S., No. 14-1214C, February 23, 2015  (pdf)  
Consolidated Engineering Services, Inc., v. U. S. and LB & B Associates Inc., No. 04-1784C, February 14, 2005; March 30, 2005 (pdf)  
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