The FAR 15.306 requires the CO discuss with each offeror being considered for award significant weaknesses, deficiencies or other aspects of its proposal that could be altered or explained to enhance the proposal’s potential for award. Discussions should not be confused with clarifications which are limited exchanges with offerors to allow correction of minor or clerical errors or to clarify proposal elements. An agency may not hold discussions with one offeror without extending a similar opportunity to all other offerors (Northwest Real Estate Svcs v US, 65 Fed. Cl. 419). Discussions were deemed not to have occurred when the bidder confirmed that a term had been misapplied to a proposal item and corrected an obvious label error before award (National Beef Packing Co., B-296534). However discussions, not mere clarifications, were conducted when the agency engaged in a post-final proposal exchange with the awardee that resulted in material proposal revisions (Lockheed Martin Simulation, B-292836).
It was held there is no requirement that all areas of a proposal be addressed during discussions but only significant weakness (e.g. those having an appreciably increase in risk of unsuccessful contract performance (Standard Communications, B-296972). The GAO held that where an offeror’s price is not so high as to be unreasonable or unacceptable, the agency is not required to advise the offeror its price in not competitive (Yang Enterprises, B-294605). Also, there is no requirement that an agency inform an offeror that its price is too high where the price is not considered excessive or unreasonable (Cherry Road Technologies, B-296615).
Discussions must be meaningful, equitable and not misleading. The GAO established that it is the responsibility of the agency in conducting meaningful discussions to lead offerors into areas of their proposals that need revision (Global A 1st Flagship Co., B-297235). The GAO ruled meaningful discussions had not occurred when it merely informed the protester it total proposed price was overstated but did not convey the magnitude of the disparity in price. The agency also failed to provide meaningful discussion when it did not address the underlying reason for the unreasonable pricing – namely the protester’s misconception of the anticipated level of effort which prevented it from obtaining a meaningful understanding of the agency’s concern (Creative Information Technology B-293073).
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