In today’s Federal marketplace, it is very common to see solicitations that give the Agency the option of entering into discussions with offerors. The primary objective of discussions is to maximize competition and, in turn, the Agency’s ability to obtain the best possible value.
Once it makes the decision to enter into discussions, the Agency must do so in good faith and with all offerors remaining in the competition. Further, the discussions themselves must be “meaningful” – a fairly subjective standard that (predictably) often works its way into bid protests.
In a nutshell, to be meaningful, discussions must identify proposal deficiencies and significant weaknesses that reasonably could be addressed in order to materially enhance the offeror’s potential for award. The discussions also need to be sufficiently detailed to lead the offeror to the areas of its proposal that require revision or amplification. Discussions should not be misleading or prompt the offeror to engage in a way that will not address the Agency’s actual concerns.
All of that said, the Agency is not required to hold the offeror’s hand (so to speak) to conduct meaningful discussions. The Agency is not required to hold all-encompassing discussions, or to discuss every aspect of a proposal that receives less than the maximum score. The Agency also need not advise of minor or insignificant weaknesses, even if those weaknesses are later used to differentiate between closely ranked offers.
Federal Acquisition Regulation (FAR) 15.306 is a good beginning resource for learning more about the Agency’s requirements during discussions.
As I mentioned above, discussions tend to be a fertile ground for bid protests because of the ample opportunity for disparate treatment between offerors – intentionally or otherwise. Understanding the how the Agency should conduct discussions opens the door to potentially winning bid protest arguments.
For example, in a recent decision, GAO sustained a protest alleging that the Agency failed to conduct meaningful discussions. Specifically, the protester argued the Agency did not do enough to shed light on how certain solicitation requirements would be applied during the evaluation process.
GAO agreed with the protester and even took it one step further – concluding that not only were the discussions not meaningful, they actually mislead the offeror. That is, the Agency’s discussions led the offeror to believe that it needed to amplify certain past performance experience included in its proposal when, in fact, the Agency did not consider that experience relevant to begin with.
Today’s takeaway is that contractors disappointed with an award decision should take a long look at the way the Agency conducted discussions before walking away. If there is a legitimate question as to whether the discussions were conducted in a fair and meaningful way, it could form a strong basis for a bid protest.
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