Where are the limits of that discretion? There is a disconnect between the regulations and GAO. The regulations, at FAR The mandatory language says that you must discuss deficiencies and significant weaknesses and any negative past performance information that the offeror has not had a chance to comment on.
The GAO rule says that discussions have to be meaningful. My statement to contracting officers has always been that anybody that tries to limit discussions as far as they can possibly be limited deserves what happens to them.
That being that in a protest your discussions may be found to not be meaningful. And if that is the determination you have made, you ought to tell them your analysis of their proposal and let them know what needs fixing. But if you follow that, you have to effectively allow all offerors to rewrite their proposal which creates a new round of competition with added expense. Which is why agencies have a tendency to want to avoid discussions and shorten the process. What role do discussions and clarifications play in the evaluation of past performance?
Would you like to see them used differently in this context? You are essentially dealing with two different bodies of data. You are dealing with performance system data plus all the stuff in FAPIIS where the contractor, in theory, has already had a chance to comment. For this body of data, there is not much to discuss. Second, you are dealing with going to references and getting additional data.
See FAR They are intended only to permit the Government to improve its understanding of proposals or past performance information, and address minor issues before a competitive range is established. Please verify. Please correct that. Protests are often fought over exchanges that lie in the fuzzy grey areas between those two extremes. Generally speaking, an agency can conduct clarifications with an individual offeror without having to conduct exchanges of any sort with the other offerors.
However, as we noted last time, when an agency opens discussions with one offeror, it must treat the other offerors equally and open discussions with all offerors in the competitive range. See, e. It does not matter how the agency characterizes the exchange; rather, the key question is whether an offeror was afforded the opportunity to revise its proposal. Having a protest sustained on this ground can result in an opening of discussions as corrective action, which may be all the protester needs to correct the weaknesses that prevented it from award the first time around and otherwise improve its competitive standing.
These factors led GAO to the conclusion that the communications between the agency and Kardex were in fact discussions rather than clarifications. Despite several rounds of discussions with Kardex, the agency never actually identified the one RFQ requirement that Kardex did not meet that led to its quotation being rejected as technically unacceptable. An agency that conducts discussions is required to ensure that those discussions are meaningful. As a result, GAO sustained the protest.
However, exchanges with offerors in FSS procurements must still be fair and equitable, thus GAO uses the part 15 standards for guidance. You must be logged in to post a comment. Discussions vs. Related Posts.
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