All contracts other than sealed bids are called "negotiated" contracts and their purpose is to permit agencies to use flexible procedures and to have discussions that may result in modifications of proposals to correct deficiencies or improve their offers. There have been numerous cases addressing some of these "flexible" procedures such as proper evaluation factors, past performance, proper discussions and clarifications and exclusions from the competitive range proper scoring of proposals.

Evaluation factors. The request for proposals must describe the factors and significant subfactors that will be used to evaluate proposals, their relative importance and that proposals will be evaluated "solely" on the factors and subfactors. Though it is improper for an agency to evaluate factors or subfactors not included in the RFP, agencies are not required to identify all areas of each factor that may be taken into account as long as they are reasonably related to the stated criteria (D.F. Zee’s Fire Fighter Catering). For example, it was ruled proper for an agency to consider the size and similarity of past contracts in a past performance evaluation (J.A. Jones Grupo de Servicios), experience in three specific programs when evaluating the technical/management section (Advanced Data Concepts, Inc.) or considering factors on an evaluation checklist because they were "directly related" to an evaluation factor in the solicitation (Phantom Prods. Inc.). When the subfactors are not disclosed, they are understood to be of equal importance to each other (Contract Sec. Servs. Corp.).

Past performance. Past Performance has become a critical award factor and many decisions have ruled an agency has discretion to determine the scope of the offerors’ performance history. Though the government generally has no obligation to contact all references (OMV Med. Inc) examples of exceptions include when the information is simply too close at hand and too relevant for the agency to ignore (TRW, Inc.) and when the government is aware of prior performance information (Consolidated Engineers, Inc.).

It is improper for an agency to downgrade a competitor’s past performance evaluation merely because of a history of filing claims (Nova Group, Inc.). However, one decision allowed a downgrade because a company president, who disagreed with inspectors, was "difficult to work with" (Crescent Helicopters). Also, a downgrade was allowed when a contract was terminated for default even though the contractor appealed the termination and the parties entered into a settlement agreement (Wilderness Mountain Co.).

Discussions. FAR 15-306 requires that COs discuss with each offeror being considered for award significant weaknesses, deficiencies and other aspects of the proposal that could in the CO’s opinion be altered or explained to materially enhance the proposal’s chances of award (ASC Government Solutions Group, Inc.) There is no requirement for discussions where the solicitation advises bidders of the possibility of award without discussions (Century Elevator Inc.). The nature of the discussions with offerors who are in the competitive range must be meaningful, equitable and not misleading (Communities Group) but are considered adequate if they are advised of weaknesses, excesses and deficiencies in their proposals (Professional Performance Dev. Group, Inc.).

Recent rulings on discussions have provided COs broad discretion. Discussions must be "meaningful", meaning they must lead bidders into areas of their proposal requiring amplification or revision (LB&B Assocs. Inc.). But agencies are not required to "spoon feed" them (Labat-Anderson, Inc.). Agencies may not conduct discussion in a manner that favors one offeror over another where, for example, an agency explained deficiencies of a proposal to one where two others with similar deficiencies were not provided similar treatment (Chemonics Intl., Inc.). Though offerors must be treated fairly and given an equal opportunity in discussions to revise proposals, discussions need not be identical (KBM Group).

Competitive Range. Based upon the ratings of each proposal against all evaluation criteria, the CO must establish a "competitive range" of the most highly rated proposals unless the range is further reduced for purposes of efficiency (United Housing Servs. Inc.). An agency is not required to retain a proposal in the competitive range simply to avoid a range of one (Clean Srv. Co.).

Recent Changes to FAR Part 15. Whereas before the rewrite there was clearly prohibitions against reopening discussions after receipt of BAFOs, there was no such prohibitions after the rewrite (Spectrum Sciences & Software Inc.). Also, while auctions are prohibited, the use of auction techniques are allowed (DGS Contract Serv. Inc.).

Scoring Proposals in the Competitive Range. There have been numerous cases providing that the CO has wide discretion in how it will score proposals in the competitive range. Scoring will be reversed only where it lacks a reasonable basis or conflicts with stated evaluation criteria for award. An agency’s evaluation of proposals must be documented in sufficient detail to allow for review in the event of a protest (Acepex Mgmt. Corp.). Point scores must be supported by documentation of the relative differences between proposals, their weaknesses and risks and the basis and reasons for the selection decision. Where a price/technical tradeoff is made, the documentation must include the rationale for any tradeoffs made including the benefits associated with additional costs (Opti-Lite Optical).

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