Contracting officers face a different set of challenges when conducting exchanges with industry after receipt of proposals. This article covers notifications to unsuccessful offerors and follows the guidance of the Federal Acquisition Regulation (FAR) Part 15.503. Additionally, there are other types of exchanges with offers after receipt of proposals, but these focus on debriefings and protests, and will be discussed in the next article. Notifications to unsuccessful offerors can become contentious, and they must be handled with caution and sensitivity, since contractors will be getting disappointing news.
Any such exchanges that fail to maintain the highest standards of professionalism and objectivity may invite a protest, or even a finding in favor of the protestor. It is therefore critical that government contracting personnel strive for and adhere to exacting standards of measured restraint and dispassionate speech and text. Notifications to unsuccessful offerors fall into two categories, pre-award notices and post-award notices.
The first such notifications occur before contract award, and involve two different situations. COs must notify offerors promptly and in writing when their offers have been excluded from the competitive range or otherwise eliminated from the competition. These notices must include the basis for the determination and state that a proposal revision will not be considered.
The second pre-award notifications to unsuccessful offerors involve small business programs, and are made in addition to the notices described above. These additional notices are required when the CO has used procedures that include any of the small business exclusions described in FAR Part 19: small business set-asides, HUBZone, Service-Disabled Veteran-Owned Small Business (SDVOSB), and Women-Owned Small Business. These notices must state the name and address of the apparently successful offeror, that the Government will not consider subsequent revisions of the offeror’s proposal, and that no response to the notice is required, unless a basis exists to challenge the size status or small business status of the apparently successful offeror. However, these notices are not required when the CO determines that the requirement’s urgency necessitates award without delay, or when awarding to small businesses participating in the 8(a) program.
Post-award notices to unsuccessful offerors resemble the pre-award notices, but involve some key differences. First, for unsuccessful offerors from within the competitive range, the CO must provide them written notice within 3 days of contract award. These notices must include the number of offerors solicited, the number of proposals received, the name and address of each offeror receiving an award, and the items, quantities, and any stated unit prices of each award (unless inclusion of these unit prices is impracticable; in such cases, the overall contract price will suffice.) The last and most significant aspect of these notifications addresses, in general terms, the reason(s) the offeror’s proposal was not accepted, unless the price information from the successful offeror readily reveals the reason. The FAR emphasizes that “in no event shall an offeror’s cost breakdown, profit, overhead rates, trade secrets, manufacturing processes and techniques, or other confidential business information be disclosed to any other offeror.”
The FAR also briefly mentions occasions when notifications to unsuccessful offerors may occur in simplified acquisition procedures, and to those excluded from the competitive range, when the offeror requests these notices. But most significantly, notifications to unsuccessful offerors serve to provide timely notice of exclusion from the competitive range, or non-selection for award of the resultant contract. These notifications provide official notification that the offeror’s efforts and investments have been unsuccessful; therefore the wording and tone must be precise, correct and impartial. Therefore, Government contracting personnel must exercise great caution and discretion in completing these notifications.