Contracting by Negotiation

In its recent decision in T.H.R. Enterprises, Inc., the Court of Federal Claims reminds contractors to read claim release language carefully before executing any agreement or modification. T.H.R. Enterprises, Inc. involved an IDIQ contract for renovation work at Langley Air Force Base. The government issued various task orders (TOs) under the overarching IDIQ, and disputes arose between T.H.R. and the government under three of these orders: TOs 22, 25, and 26.
Continue Reading Recent Decision Highlights the Potential Pitfalls in General Releases

The GAO’s recent decision in K&K Industries, Inc. reinforces for disappointed offerors that once the government unequivocally states that a debriefing has concluded, the clock has started ticking on the time to file a protest. Notably, this can be true even if the parties continue discussing the offeror’s proposal.

The Background

On September 28, 2021, the U.S. Army Corps of Engineers (USACE) notified K&K Industries, Inc. (K&K) that it had awarded Blinderman Construction, Co. (Blinderman) a contract involving the design and renovation of a historic barracks building in Fort Riley, Kansas. This notice also informed K&K that the company had a right to request a debriefing. K&K timely requested the debriefing and asked that the debriefing include a redacted copy of the Source Selection Decision Document (SSDD).
Continue Reading When Exactly Did My Debriefing End?

Join EBidd DeLisle and Maria Panichelli for their presentation for TargetGov and the Government Contracting Institute on November 2, 2015 in Linthicum Heights, MD.
Continue Reading Bid Protests, and Size/Status Eligibility Challenges: In-Depth Look at the Most Important Processes in Government Contracting

By: Michael H. Payne

A decision was issued by the United States Court of Federal Claims on December 20, 2011, in Martin Construction Co. v. United States, a case involving a Corps of Engineers construction project in North Dakota. Martin was represented by Michael Payne and Joseph Hackenbracht, of Cohen Seglias Pallas Greenhall

By: Michael H. Payne

Government contractors frequently use incorrect terminology to describe a solicitation. For example, clients often call me and ask why they were not awarded a contract even though they had submitted the lowest bid. The first thing that I ask is whether the solicitation was a Request for Proposals ("RFP"), or an

By: Michael H. Payne & Elise M. Carlin

Each year, a significant number of bid protests filed at the GAO are the result of inadequate discussions. Recently, the GAO released two decisions which reiterated the importance of holding meaningful discussions that do not mislead offerors during negotiated procurements.

The purpose of holding discussions in negotiated procurements is to maximize the best value to the government. Discussions are held to give offerors in the competitive range an opportunity to revise their bids to make them more competitive. The Federal Acquisition Regulation (the “FAR”) defines discussions and in what context they occur with an offeror:

Negotiations are exchanges, in either a competitive or sole source environment, between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal. These negotiations may include bargaining. Bargaining includes persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract. When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions.

Requirements of Discussions

It is well established in federal procurement law that discussions between the contracting officer of an agency and an offeror must be meaningful. Once discussions have been opened, the FAR dictates that an agency “shall…indicate to, or discuss with, each offeror still being considered for award, significant weakness, deficiencies, and other aspects of its proposal…that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award.” In order to be meaningful, a discussion must generally lead an offeror into specific areas of their proposal which require modification. Additionally, discussions should be as specific as practical considerations permit, and give offerors a reasonable opportunity to address any potential weaknesses or deficiencies in its proposal which could impact the offeror’s competitiveness.

Limitations on Discussions

While discussions must be meaningful, they must also not be misleading. Additionally, they must not favor one offeror over another. During discussions, the contracting officer cannot divulge one offeror’s technical solution to another, including any unique technology or innovative and unique uses of commercial items, or any other information that would compromise an offeror’s intellectual property. Additionally, any pricing information cannot be revealed without that offeror’s permission. In terms of pricing information however, the government may inform an offeror that its price is considered too high or too low and explain how that conclusion was reached. It is also within the government’s discretion to inform all offerors if there is a particular price that it has determined to be reasonable based on price analysis, market research or other methods. The government may not disclose the names of any individuals who have provided reference information about an offerors past performance. Lastly, during discussions, the government may not knowingly provide source selection information in violation of the provisions of the FAR that govern procurement integrity, or the savings provisions of the U.S. Code pertaining to Restrictions on disclosing and obtaining contractor bid or proposal information or source selection information. Once discussions have concluded, each offeror must have an opportunity to submit a final proposal revision by a common deadline.Continue Reading Recent GAO Decisions Highlight the Importance of Meaningful Discussions with Offerors During the Negotiated Procurement Process

By: Michael H. Payne

It is not uncommon, in best value negotiated procurements, for a solicitation to announce that the technical evaluation factors, collectively, are more important than price.  Construction contractors, of course, still remember the days of sealed bidding where the lowest bidder received the award and they are not very receptive to hearing

By: Michael H. Payne

In a negotiated procurement, where a contractor submits a proposal in response to an RFP (Request for Proposals), FAR 15.506(a)(1) states that “An offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award in accordance with

By: Lane F. Kelman

In making an award on initial proposals, is a tradeoff only between the two (2) highest-rated, highest-priced proposals appropriate?  The GAO, in a recent decision,Coastal Environments, Inc., B-401889, dated December 18, 2009, provides important clarification.  The decision beckons closer scrutiny of awards by unsuccessful offerors.

In Coastal Environments, Inc.