(Editor’s Note.  The following sheds light on the continuing efforts to distinguish between clarifications and discussions.)

Incumbent DI and MI were the only bidders to respond to an aircraft maintenance services solicitation where the negotiated award would be based on a best value determination. The Air Force stated it intended to make the award without discussions though it reserved the right to hold them if needed. During the evaluation phase the Air Force sent six evaluation notices (ENs) to MI marked “clarifications” that related to its capabilities (e.g. cost savings related to engine parts) and to its price proposal (e.g. provide most recent available financial statements). After MI was awarded the contract DI protested asserting the ENs between MI and the Air Force were discussions, not clarifications, that must be held with all offerors in the competitive range. The Court disagreed, stating the ENs were clarifications.  The Court cited Info. Tech. & Applications Corp that held clarifications (FAR 15.306(a)) were deemed to be “limited exchanges” that may occur when discussions are not contemplated to give offerors the opportunity to “clarify certain aspects of proposals” while discussions (FAR 15.306(b)) were exchanges undertaken with the intent to allow the offeror to revise its proposal.  In rejecting DI’s argument that providing additional information constituted discussions rather than clarifications the Court held any meaningful clarification requires providing information. The decision stated the Court must give deference to the agency’s view that an EN was a clarification as long as the view is permissible and reasonable which is the case here. In all of its ENs the court found no evidence that the requested information allowed MI to revise its proposal (Dyncorp Intl. LCC v. US, Fed. Cl. No. 07-84).

{TAG_FORM_TITLE}