Thursday, September 4, 2014

Unequal Discussions?

Federal Acquisition Regulation (FAR) 15.306 in general, covers exchanges between the Government and companies that submit proposals after the Government receives those proposals. The emphasis here is on fair and consistent treatment among all offerors. FAR 15.306(d)(3) requires agencies to address during discussions, “[a]t a minimum . . . deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. Although discussions may not be conducted in a manner that favors one offeror over another, and offerors must be given an equal opportunity to revise their proposals, discussions need not be identical among offerors; rather, discussions need only be tailored to each offeror’s proposal.

Concerning a discussion on proposed prices, unless an offeror’s proposed price is so high as to be unreasonable or unacceptable, an agency is not required to inform an offeror during discussions that its proposed price is high in comparison to a competitor’s proposed price, even where price is the determinative factor for award.

Nonetheless, it is inherently within an agency’s discretion to inform an offeror during discussions that its price appears to be high in comparison to other offeror's proposed prices, should an agency choose to do so. This is true without regard to whether the offeror’s price is higher or lower than the agency’s independent government estimate (IGE).

In a recently published Comptroller General case, a (losing) bidder complained that the agency conducted unequal discussions when it learned during the debriefing stage that it had informed it that its price was too high in relation to the other bidder but did not inform the other bidder of the same.

The Comptroller General (CG) did not agree. The CG noted, as discussed above, that it was within the agency's discretion during discussion to inform an offeror that its price is high in comparison to other offeror's proposed prices. As a matter of fact, both bids were higher than the IGE. The CG found no unequal or unfair treatment in the agency's decision to inform the protestor that its bid was too high.

You can read the entire case by clicking here.

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