GAO just sustained a protest where the Air Force improperly conducted discussions only with the awardee. The RFQ was issued using the simplified acquisition procedures pursuant to the authority of FAR Subpart 13.5. The procurement was conducted under the simplified procedures for evaluation of commercial items. However, although the Air Force was not required to conduct discussions under the simplified acquisition procedures, GAO said where any agency avails itself of negotiated procurement procedures, it must follow the negotiated procurement rules.
Over and over again, we have reminded everyone that FAR Part 15 is implicated in every negotiated procurement even if it is under FAR Parts 12 or 13. In competitive negotiated buys, contracting officers must pay attention to FAR Part 15. All procurement professionals needs to read all the GAO decisions to keep track of just what rules apply. Reading FAR is not enough. Email me and I will send you a summary of all of GAO's decisions for last year. Read these blogs and you will keep up with a bunch of them.
FAR 15.306 describes a range of exchanges that may take place when the agency decides to conduct exchanges with offerors during negotiated procurements. Clarifications are one thing. See FAR 15.306(a)(2). Discussions, however, 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 its proposal in a material respect. When an agency conducts discussions with one offeror, it must conduct discussions with all other offerors within the competitive range.
Where there is a dispute regarding whether communications constitute discussions, the test is whether an offeror has been afforded an opportunity to revise or modify its proposal. Communications which do not permit an offeror to revise or modify its proposal, but instead request the offeror confirm what it has already committed to do, are clarifications and not discussions. Consequently, there is no need to conduct these communications with other offerors.
Where improper discussions are held, GAO will resolve any doubts concerning the prejudicial effect of the agency's actions in favor of the protester. A reasonable possibility of prejudice is a sufficient basis for sustaining the protest.
The relief? Conduct discussions, reevaluate and make a new selection decision. Recover attorney fees.
bill@spriggslawgroup.com
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