Contracting officers face complex challenges and restrictions when communicating with offerors after receipt of proposals. Ensuring procurement integrity is the most vulnerable during this phase, and the contracting officer (CO) must be very diligent and measured in exchanges with industry. These exchanges come in several forms, all outlined in the Federal Acquisition Regulation (FAR), Part 15.306.
The first type of exchanges are called clarifications, and they are “limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.” Often, these instances provide the offeror the opportunity to clarify certain aspects of their proposals, or to resolve minor or clerical errors. The significance lies in the notion that the Government and contractor are not discussing the offer, but instead, the contractor is merely clarifying an ambiguous or confusing point. As such, no opinions or assessments of the merit of the proposal are shared.
Another type of exchanges with offerors occurs before the establishment of the competitive range. FAR Part 15.306(b) addresses these communications, noting that these exchanges are limited to offerors whose past performance is the determining factor preventing them from being placed in the competitive range, and to offerors whose inclusion in the competitive range are uncertain. The FAR explicitly states that these exchanges are intended only to “enhance Government understanding of proposals, to allow reasonable interpretation of the proposal, or to facilitate the Government’s evaluation process.” The FAR further prevents the offeror from using these communications to “cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal.” Essentially, these communications are to be used only to assist the Government in determining whether or not a particular offer should be included in the competitive range, and must not be used to correct, enhance, or improve an offer.
The third type of exchange, known as discussions, involve the establishment of the competitive range. The CO establishes the competitive range amongst the most highly rated proposals, as described in FAR Part 15.305(a). The CO then determines if the number of most highly rated proposals provides the most effective competition; if the solicitation contains the necessary language as described in FAR Part 52.215-1(f)(4), the CO can limit the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals. Written notice of this decision shall be provided to unsuccessful offerors in accordance with FAR Part 15.503.
Other exchanges with industry occur after establishment of the competitive range, and feature the offerors’ potential revisions of their proposals. Since they involve changes to the proposals, these exchanges are actually negotiations, and may occur in either a competitive or sole source environment.
Negotiations may include bargaining, in the form of persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract.
When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions. These discussions are tailored to each offeror’s proposal, and must be conducted by the contracting officer with each offeror within the competitive range. The Government’s primary objective is to obtain best value, based on the requirement and the evaluation factors set forth in the solicitation. At a minimum, these discussions must address deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The FAR also encourages the CO to discuss other aspects of the proposal that could be altered or explained to enhance materially the proposal’s potential for award. The scope and extent of discussions are a matter of contracting officer judgment.
In conclusion, the CO must handle a variety of communications after the receipt of proposals, all designed to facilitate the most effective competition and obtain the best value for the Government. Knowing these types of communication, and limitations on them, aids government contracting personnel and interested vendors alike, and goes a long way towards avoiding costly, wasteful miscommunications.