When conducting procurements along the best-value continuum, federal agencies may engage in discussions with offerors, leading them into areas of their proposals that require modification, amplification, or explanation. The Federal Acquisition Regulation (FAR) requires that such discussions be meaningful. Specifically, FAR § 15.306(d)(3) requires that when conducting discussions, the government agency, at a minimum, advise an offeror of its deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. Notably, exchanges with offerors prior to the establishment of a competitive range that are merely conducted to enhance the government’s understanding of proposals and not to cure proposal deficiencies are not discussions. Offerors may not materially alter their proposals during such exchanges, and the government is not required to discuss all deficiencies or weaknesses. However, when communications rise to the level of discussions, the agency must ensure that the discussions are, in fact, meaningful and lead the offeror into proposal areas requiring modification, amplification, or explanation. Thus, when the government fails to provide meaningful discussions, impacted offerors may file a bid protest, challenging the adequacy of the discussions.
In B-419258, a decision issued in January 2021, the Government Accountability Office (GAO) sustained a bid protest by ruling that the government failed to engage in meaningful discussions when it did not discuss the weaknesses and deficiencies identified in the protestor’s proposal. The request for proposals (RFP) was issued by the Department of Veterans Affairs (VA) for establishing a 20-year lease to house a community-based outpatient clinic in Daytona Beach. The RFQ contemplated a lease award on a best-value tradeoff basis for approximately 123,000 square feet of rental space. The VA received six proposals, two of which were eliminated at the outset for proposing land within a 100-year floodplain, contrary to RFP requirements. Out of the remaining four proposals, the awardee and the protestor proposed a nearly identical total price of approximately $106 M. However, the protestor’s proposal was generally rated one adjectival rating lower than the awardee’s in most non-price factors. The VA identified eight deficiencies in the protestor’s proposal, along with many weaknesses.
After the VA awarded the 20-year lease, the protestor challenged the award, alleging that the VA’s pre-award communications with offerors amounted to discussions and that the discussions held with the protestor were not meaningful because the government did not bring any of the protestor’s deficiencies or weaknesses to the protestor’s attention. Meanwhile, the VA maintained that the pre-award exchanges it conducted with offerors were not discussions but merely “due-diligence clarifications” that did not establish a competitive range or otherwise allow offerors to revise their proposals. The GAO began its analysis by reminding the parties that discussions occur when the government engages in communications with an offeror for the purpose of obtaining information essential to determining the acceptability of its proposal or when the government provides the offeror an opportunity to revise or modify its proposal in some material aspect. Additionally, where discussions have occurred, they must be meaningful, and the agency must bring all deficiencies and significant weaknesses to the offeror’s attention during such discussions.
The GAO noted that the RFP instructions included a long list of required submissions that specifically advised offerors of the mandatory nature of the information. For instance, offerors were instructed to provide a cultural resources assessment survey, a letter demonstrating the availability of utilities from the local authorities, and a Federal Emergency Management Agency (FEMA) map showing their proposed site location. The RFP advised offerors that if the required information was not included in the submission, their proposal may be rejected as “non-responsive.” During pre-award exchanges, the VA specifically requested and gave an opportunity to responsive offerors, including the protestor, to submit the cultural resources assessment survey and letters from the local utilities. The government also requested the awardee to provide a biological and wetlands survey for its proposed site after the submission of the initial proposals. Based on this evidence, the GAO concluded that during these exchanges, the VA had asked offerors to provide essential information necessary to determine the acceptability of their respective proposals. Therefore, the government had engaged in discussions with the offerors. Finally, while the VA identified eight deficiencies and many other weaknesses in the protestor’s proposal, it failed to raise these deficiencies and weaknesses with the protestor during the discussions. Thus, the VA had failed to hold meaningful discussions in violation of FAR § 15.306(d)(3) and the protest was sustained on this basis.
When procuring agencies conduct pre-award discussions with prospective offerors, such discussions must, at a minimum, advise an offeror of proposal deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. Notably, it is the official actions of agency officials, and not their subjective intent, that determines whether certain exchanges rise to the level of discussions. Under a related but different obligation to hold meaningful discussions, the government is required to treat offerors equally. However, equal treatment does not mean that the discussions with different offerors be identical. On the contrary, the government is required to tailor discussions to each offeror’s proposal. Keeping this overall framework in mind, contractors should be mindful that when the government fails to raise proposal deficiencies and weaknesses during pre-award discussions, it fails in its obligation to hold meaningful discussions. In such situations, any underlying awards are typically terminated for the government’s convenience, and the acquisition must be conducted again. Furthermore, when the government fails to hold meaningful discussions, protest adjudicative forums resolve any doubts concerning the prejudicial effect of the government’s improper actions in favor of the protestor.
This Bid Protests Insight provides 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 Portal or Contact Us to determine how the law would apply in a specific situation.
