The Government Accountability Office (“GAO”) issues statistics each year regarding the outcome of bid protests. In 2015, there were 2,639 cases filed and there we 587 decisions on the merits. Of those, only 68 protests were sustained. According to the way the GAO presents its statistics, that would indicate that protestors prevailed approximately 12% of the time. In reality, since many protests were withdrawn or summarily dismissed, the protesters only prevailed in 68 of the 2,639 protests filed and the true success rate was closer to 3%. With those odds, why would anyone file a GAO bid protest? The answer requires a little closer scrutiny since statistics can be misleading.
By: Michael H. Payne
A protest that challenges the source selection decision on a negotiated, best value, procurement is not easy to win. Numerous decisions of the GAO and the United States Court of Federal Claims have held that procurement officials are entitled to substantial deference. In a recent decision by the Court of Federal…
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.
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…
MATOC – IDIQ – “Best Value” – BRAC
These are the terms that contractors are hearing more and more and they are part of the rapidly changing world of construction contracting with the federal government. It is no longer enough to simply be the low bidder; now, in many federal procurements, it is the “best…