When do an agency’s communications with an offeror amount to a clarification, and when do they cross the line into a discussion? That’s exactly what this post will discuss and, hopefully, clarify for you. Understanding the distinction between clarifications and discussions is important because the type of communication an agency has with an offeror can affect an offeror’s ability to address issues or make changes to their proposal. A recent GAO decision explores the difference between clarifications and discussions and offers insight into when each type of communication may be appropriate.
Continue readingTag Archives: clarifications
FAR 2.0 Update: Part 15 – Contracting By Negotiation
As most federal contractors have heard, the Federal Acquisition Regulation is undergoing a major overhaul. FAR 2.0, commonly referred to as the Revolutionary FAR Overhaul (or just the “RFO”), is the responsibility of the Office of Federal Procurement Policy (OFPP) and the Federal Acquisition Regulatory Council (FAR Council). Initiated by Executive Order 14275, the new FAR 2.0 process has been going quickly, with lots of proposed revisions.
Our earlier posts regarding the RFO can be found here: Executive Order, Overview of FAR 2.0, FAR Part 6, FAR Part 19, FAR Part 12.
Work continues over at the OFPP and FAR Council, and today we’re covering some of their most substantial changes yet: Part 15 – Contracting by Negotiation.
Continue readingGAO Says: Solicitation + Q&A = Material Requirements
Recently, GAO sustained a bid protest, finding that the awardee did not meet the material requirements of the solicitation. The GAO held that the requirements of the solicitation included an agency’s answer during the question and answer (Q&A) period.
Continue readingWho You Gonna Call? Your Contracting Officer (Part 2)
In our line of work, we regularly litigate protests, claims, appeals, etc., against the Government. But often, procuring and contracting issues can be resolved without the need for litigation–via a little-known method we like to call “talking things out with your CO.” There are also some important things to keep in mind regarding communications with your contracting officer during the proposal submission process. This article is the second of three articles aimed at providing helpful tips for communicating with your contracting officer. Part 1, which focused on pre-solicitation and solicitation communications, can be found here. This article will focus on proposal submission communications. And the third will focus on contract performance communications.
Continue readingMissing Password Doesn’t Sink CIO-SP3 Proposal
A Maryland contractor nearly lost a contract with $20 billion ceiling because of a password protected encrypted document.
After much back and forth, and for somewhat obscure reasons, GAO said that it was unreasonable for the agency to ask for the password and then not use it.
Continue readingCOFC Clarifies When Agency Must Seek Clarification
Agencies have some discretion to seek clarification of a question after reviewing a proposal. But when must the agency do so? GAO allows agencies substantial discretion in choosing whether or not to seek proposal clarifications. But the Court of Federal Claims has a dramatically different standard than GAO for reviewing when an agency must seek clarification for a proposal.
A recent Court of Federal Claims decision confirms (as in a 2016 decision) that agencies should seek clarification for obvious proposal errors. But according to the court, there is a difference between an obvious proposal error and a calculated decision on the contractor’s part. This decision was about how to tell the difference.
Continue readingMissing JV Agreement Sinks Offeror’s Proposal
A small business joint venture’s proposal was excluded from the competition because the joint venture failed to submit a signed copy of its joint venture agreement, as required by the solicitation.
In a recent bid protest decision, the GAO held that the procuring agency acted properly in excluding the joint venture’s proposal, even though the joint venture’s price was more than $300,000 lower than the lowest-priced awardee’s.