Government agencies utilize the simplified procedures in Federal Acquisition Regulation (FAR) 8.4 to acquire commercial products and services at negotiated discounted rates from pre-qualified vendors. Despite the simplified procedures, procuring agencies must be fair and equal when conducting exchanges with offerors under the FAR 8.4 Federal Supply Schedule (FSS) program. Notably, while the provisions of FAR part 15 governing contracting by negotiation include provisions relevant to post-proposal discussions with offerors, they do not apply to competitive FSS procurements. Under FAR part 15, when an agency conducts discussions with an offeror to obtain essential information relevant to the determination of acceptability of the offeror’s proposal or provides that offeror an opportunity to revise or modify its proposal, it must afford the same opportunity to all other offerors in the competitive range. In other words, the procuring agency may not conduct unequal discussions with offerors in the competitive range. Similarly, although specific procedures of FAR part 15 are inapplicable, solicitations for FAR 8.4 procurements must still contemplate procedures governing exchanges that are fair and equal, failing which the terms of the solicitation may be challenged during pre-award protests.

In B-422281.3, the Government Accountability Office (GAO) denied a pre-award bid protest challenging the terms of a FAR 8.4 solicitation as treating offerors unfairly and unequally when the relevant terms permitted the procuring agency to hold exchanges with only one downselected vendor and allowed that vendor to revise its quotations based on those exchanges. The Defense Information Systems Agency (DISA) issued the solicitation under the General Services Administration’s (GSA) FSS program for technology architecture governance services on a best-value basis. The request for quotation (RFQ) encouraged prospective offerors to submit their best quotations and warned that the government anticipated downselecting a “best-suited” contractor from the initial responses without engaging in exchanges with the offerors. An amendment to the RFQ also put offerors on notice that once the government downselected a best-suited offeror, it reserved the right to communicate with only that offeror. During the exchanges with the best-suited offeror, the government could address any remaining issues, including requiring revisions to technical or price quotations, if necessary, before finalizing a task order award. If the parties were unable to resolve any remaining issues, the government would then conduct exchanges with the next best-suited offeror, and so forth, until the task order was awarded. Before the deadline for the receipt of quotations had passed, the protestor filed a pre-award protest challenging the terms for exchanges included in the amended RFQ as unfair and unequal.

In its decision issued on December 20, 2024, the GAO began its analysis by noting that it had previously denied post-award protest grounds involving similarly worded solicitation provisions in FAR 8.4 procurements. In those protests, the GAO had ruled that challenges to the propriety of the scope of exchanges contemplated by solicitations had to be filed as pre-award protests before the deadline for submission of proposals. The GAO further noted that FAR part 15 negotiated procurement procedures did not apply to FAR 8.4 procurements. Therefore, as long as the terms of exchanges outlined in the solicitation were fair and equal, and the agency’s actions during the exchanges were consistent with the terms of the solicitation, there would be no basis on which to sustain the protest. In the present protest, the protestor timely challenged the terms of the solicitation by filing a pre-award protest a few hours before the deadline for submission of quotations. However, despite the timeliness of the protestor’s pre-award challenge, the GAO again denied the protest, finding that the solicitation provision at issue did not contemplate unfair or unequal agency action. The GAO reminded the protestor that agencies were not required to conduct exchanges or discussions following the procedures of FAR part 15 in FAR 8.4 procurements.

In support of its decision, the GAO also pointed to FAR 1.102-5(e) for the proposition that if a particular procedure or strategy is in the best interest of the government but is not specifically addressed in the FAR or otherwise prohibited by law, the government did not have to assume that it was prohibited. Consequently, since provisions of FAR part 15 were inapplicable to the FAR 8.4 solicitation at issue, the relevant solicitation language permitting exchanges with a lone downselected offeror and allowing that offeror to revise its quotations following exchanges, was proper as it treated all offerors equally up to the point a single “best-suited” offeror was downselected. Moreover, it was also noted that FAR 15.306 permits agencies to establish a competitive range of all the most highly rated proposals and then only conduct discussions with offerors in the competitive range. Additionally, nothing in FAR part 15 prevents procuring agencies from limiting the competitive range to only one offeror. Therefore, a scenario similar to the present procurement is technically permitted under FAR part 15, where an agency establishes a competitive range of only one offeror and then proceeds to conduct discussions with only that offeror, provided the other offerors are properly excluded from the competitive range. Therefore, the GAO denied the protest, holding that as long as the agency reasonably and fairly evaluated the quotations to downselect one “best-suited” offeror, the solicitation provision reserving the agency’s right to only conduct exchanges with that offeror and allowing that offeror to modify or revise its quotation following those exchanges, did not amount to unfair and unequal treatment.

While FAR part 15 procedures are not applicable to procurements conducted under the simplified procedures of FAR 8.4, agencies are still required to treat contractors fairly and equally. This broad requirement of fair and equal treatment governs the procuring agency’s exchanges with offerors in FSS procurements. Significantly, this protest was the first time the GAO resolved a pre-award challenge to the terms of a FAR 8.4 solicitation permitting the government to conduct exchanges that were the functional equivalent of FAR part 15 discussions with only one “best-suited” offeror. While the GAO found that solicitation language contemplating such exchanges was not inherently improper in this case, contractors should note that nothing in this decision prevents unsuccessful offerors in FAR 8.4 procurements from challenging the reasonableness of the procuring agency’s decision to not downselect them as the best-suited offeror. In other words, while the procuring agency may choose to downselect a single offeror and only hold exchanges analogous to FAR part 15 discussions with that one offeror, the other offerors may still protest underlying agency actions and decisions that led to the selection of the best-suited offeror. Additionally, as demonstrated in this decision, protests challenging specific provisions in a solicitation governing exchanges with offerors must be filed as pre-award protests. Ultimately, in resolving protests challenging methodologies for exchanges in procurements conducted under the streamlined procedures of FAR 8.4, the protest adjudicative forum will seek to ensure that the exchanges do not violate applicable laws or FAR provisions and that all offerors are treated fairly and equally.

This Bid Protest Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portalor Contact Us to determine how the law would apply in a specific situation.