“Discussions” in a negotiated procurement between the government and an offeror are the exception, not the norm, as those of you who have submitted a response to a Request for Proposals know. Too often the government awards a contract on the basis of the initial proposal, without any discussions or negotiations with the offerors. The reason that the government refrains from formally opening up negotiations is that if discussions occur between the government and one offeror, then the government must hold discussions with all of the offerors in the competitive range. (FAR 15.306(d)(1). That can be time consuming. (It can be argued that the term “Procurement by Negotiation,” as explained in FAR, Part 15, anticipates that discussions and negotiations will actually occur).
Of course, not all communications between the government and an offeror constitute “discussions.” As the Government Accountability Office stated in a recent case, Overlook Systems Technologies, Inc., Nov 28, 2006, “the acid test is whether an offeror has been afforded an opportunity to revise or modify its proposal.” In Overlook, the contracting officer contacted the successful offeror regarding a perceived organizational conflict of interest because Overlook planned to use a subcontractor that had provided a system to the government that Overlook would now “troubleshoot.” The GAO determined that the contracting officer’s communications with Overlook were similar to the sort of inquiries the government frequently makes to perform a responsibility determination. The GAO relied heavily on the fact that the government was required to make such a responsibility determination, citing prior GAO decisions that have held that responsibility inquiries are not “discussions.”
The GAO held that since the dialogue between the contracting officer and the offeror did not result in changes to the proposal, the communications were not “discussions” and the government was not required to have similar communications with the other offerors. It should be noted that FAR 15.306(b)(2) permits the government to have communications with an offeror to enhance the government’s understanding of, or interpretation of, a proposal without these exchanges being treated as “discussions.” Contracting officers should be encouraged to make these kinds of inquiries more often rather simply award contracts on the basis of initial proposals and without any communications whatsoever.