Thursday, July 16, 2015

The Difference Between "Clarifications" and "Discussions"

FAR Part 13 prescribes policies and procedures for the acquisition of supplies and services that do not exceed the simplified acquisition threshold (currently $150,000). There is a special authority under FAR 13.500 for acquisition of commercial items that exceed the simplified acquisition threshol but not exceeding $6.5 million.

Simplified acquisition procedures are designed to reduce administrative expenses, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. When using these procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate proposals in accordance with the terms of the solicitation.

It is important for an agency, when conducting simplified acquisitions to ensure that the procurements are conducted consistent with a concern for fair and equitable competition with the therms of the solicitation. Although an agency is not required to conduct discussions under simplified acquisition procedures, where an agency avails itself of negotiated procurement procedures, the agency should fairly and reasonably treat offerors in the conduct of those procedures.

FAR 15.306 describes a range of exchanges that may take place when the agency decides to conduct exchanges with offerors during negotiated procurements. The two broadly stated exchanges are "clarifications" and "discussions". Clarifications are limited exchanges between an agency and an offeror for the purpose of eliminating minor uncertainties or irregularities in a proposal. Clarifications do not give an offeror the opportunity to revise or modify its proposal. Clarifications are not to be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal, or otherwise revise the proposal.

Discussions on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. As a general matter, when an agency conducts discussions with one offeror, it must afford all offerors remaining in the competition an opportunity to engage in meaningful discussions. Further, it is the actions of the parties that determines whether discussions have been held and not merely the characterization of the communications by the agency.

A recent bid protest decision handed down by the Comptroller General illustrates the difference between "clarifications" and "discussions". The Air Force issued a solicitation for a solid waste incinerator for use at Wake Island. Award was to be made to the vendor submitting the lowest-priced technically acceptable quotation that conformed to the terms of the solicitation. The solicitation advised that the Government intended to evaluate offers and award without discussion, but reserves the right to conduct discussions.

During the course of evaluating proposals, the Air Force communicated with the company that ultimately won the award in two critical areas. First, the offeror proposed progress payments instead of Net 30 upon delivery and second, the offeror proposed one line item as cost-reimbursable when the solicitation required firm-fixed price. The Air Force inquired concerning these discrepancies and the offeror was allowed to revise its bid.

The Air Force contended that its communications with the awardee were clarifications, not discussions. The Comptroller General disagreed. The contractor "...was permitted to revise portions of its quotation that did not comply with the solicitation's terms." When the Air Force communicated with the offeror about these discrepancies, the offeror altered its quotation,

The Air Force's communications with the awardee invited a response that was necessary to determine the acceptability of the quotation and , in fact, resulted in the offeror being permitted to supplement or alter its quotation. This is quintessentially the nature of discussions, not clarifications.

The Comptroller General (CG) concluded that the Air Force, having conducted discussions with the awardee, was required to also conduct discussions with all other vendors in the competition. The CG sustained the protest on that basis.

You can read the full text of the CG's decision here.

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