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)