Should We Discuss This? Agencies Required to Enter into Discussions with All Offerors in Competitive Range

If you google “GAO discussions,” you will likely see a multitude of results talking about “meaningful discussions.” Source selection authorities (SSA) are given a large amount of discretion beyond that. Despite the high level of discretion SSAs have, there are still certain boundaries that they must work within. These boundaries are premised on the fairness principle that is woven throughout the FAR and other procurement rules. In particular, the process of discussions must fit within these boundaries. Discussions allow all offerors that are still being considered for award an equal opportunity to address deficiencies, weaknesses, and adverse past performance information. But what if the contracting agency engages in discussions with only one offeror, who also happens to be the awardee?

Continue reading

GAO Affirms any Discussions During Evaluations Must be Meaningful

Evaluation of offers is a crucial point in the procurement process. During this time period, an agency may, in certain procurements, reach out with discussion questions meant to bring clarity to the decision-making process. However, any such discussions must be meaningful.

As one offeror recently found out, meaningful discussions even apply in so-called simplified acquisitions.

Continue reading

Limitation On Subcontracting Information Was Permissible “Clarification,” Says GAO

A procuring agency did not engage in impermissible discussions by allowing a small business to verify its intent to comply with the applicable limitation on subcontracting.

In a recent bid protest decision, the GAO held that the information regarding the small business’s compliance with the subcontracting limits was a permissible “clarification,” and did not require the agency to open discussions with all offerors in the competitive range.

Continue reading

Discussions: “Significant Weakness” Terminology Not Required

In discussions, a procuring agency is not required to explicitly inform an offeror that its proposal contains a significant weakness, so long as the agency sufficiently identifies the area of concern.

In a recent bid protest decision, the GAO held that the agency had adequately informed the offeror of the agency’s concerns, even though the agency did not specifically identify those concerns as a “significant weakness.”

Continue reading