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Award Without Discussions

Vern Edwards

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FAR 15.306(a)(3) says:


Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions. If the solicitation contains such a notice and the Government determines it is necessary to conduct discussions, the rationale for doing so shall be documented in the contract file (see the provision at 52.215-1) (10 U.S.C. 2305(b)(4)(A)(ii) and 41 U.S.C. 3703(a)(2)).

FAR 52.215-1(f)(4) says:


 The Government intends to evaluate proposals and award a contract without discussions with offerors (except clarifications as described in FAR 15.306(a)). Therefore, the offeror’s initial proposal should contain the offeror’s best terms from a cost or price and technical standpoint. The Government reserves the right to conduct discussions if the Contracting Officer later determines them to be necessary. If the Contracting Officer determines that the number of proposals that would otherwise be in the competitive range exceeds the number at which an efficient competition can be conducted, the Contracting Officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals.

DFARS 215.306(c)(1) says:


For acquisitions with an estimated value of $100 million or more, contracting officers should conduct discussions. Follow the procedures at FAR 15.306(c) and (d).

FAR 2.101 says:


Should means an expected course of action or policy that is to be followed unless inappropriate for a particular circumstance.

Now see Oak Grove Technologies, LLC v. U.S., (Court of Federal Claims No. 21-775C, August 2, 2021), Section V.B., pp. 30 - 39.


The protester challenged the agency's decision to award without discussions, despite the fact that the solicitation included FAR 52.215-1(f)(4). The court held for the protester and granted an injunction against contract award. The court also ordered the government to explain why it should not be sanctioned for "its piecemeal and improper handling of the administrative record."

The decision is an education. Among other things, you will learn about the significance of "should" and the meaning and limits of "discretion."


While “[t]he general rule is that once offerors are warned that the agency intends to award without discussions, absent special circumstances, the contracting officer has the discretion to award without discussions[,]” Chenega Healthcare Servs., LLC v. United States, 138 Fed. Cl. 644, 653 (2018), that does not mean that such discretion is plenary. Day & Zimmermann Servs., a Div. of Day & Zimmermann, Inc. v. United States, 38 Fed. Cl. 591, 604 (1997)). Indeed, wherever a regulation provides the government with discretion to take (or not to take) an action, such discretion must be exercised reasonably and not in arbitrary and capricious manner. Essex Electro Eng’rs, Inc. v. United States, 458 F. App’x 903 (Fed. Cir. 2011) (per curiam) (“When a solicitation states that formal discussions are not required, there may be some circumstances in which the government’s failure to hold discussions would be arbitrary and capricious.”).

According to Black's Law Dictionary, 11th ed. plenary means:/.


1. Full; complete; entire <plenary authority>.

The decision is by a relatively new judge, Matthew H. Solomson. You can read his resume at the Court's website.


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On 10/14/2021 at 7:33 PM, formerfed said:

Well written and convincing!

Yes. I wonder if the DAR Council will revise DFARS 215.306 to get rid of the "should." Probably not.

Unfortunately, the GAO's decades-long emphasis on the disclosure of deficiencies and significant weaknesses has turned "discussions" (which FAR 15.306(d) says are "negotiations") into a contractually meaningless exercise of telling an offeror what's wrong with its essay test (proposal), instead of a meaningful communication between prospective contracting parties. Discussions have been successfully protested so often that COs act as if they were a criminal suspect who has been read their rights. History shows that the protest system and poor training have perverted the source selection/contract formation process and discouraged truly meaningful discussions.

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