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SmallGovCon: Should We Discuss This? Agencies Required to Enter into Discussions with All Offerors in Competitive Range

“If you google “GAO discussions,” you will likely see a multitude of results talking about “meaningful discussions.” Source selection authorities (SSA) are given a large amount of discretion beyond that. Despite the high level of discretion SSAs have, there are still certain boundaries that they must work within. These boundaries are premised on the fairness principle that is woven throughout the FAR and other procurement rules. In particular, the process of discussions must fit within these boundaries. Discussions allow all offerors that are still being considered for award an equal opportunity to address deficiencies, weaknesses, and adverse past performance information. But what if the contracting agency engages in discussions with only one offeror, who also happens to be the awardee?…”

“In Rice Solutions, LLC, the Department of Health and Human Services (HHS or Agency) released a solicitation that stated it planned to make an award without conducting discussions, but the Agency reserved the right to conduct them if deemed necessary. Rice Solutions, LLC, B-420475 (April 24, 2022). HHS received three proposals in response to the solicitation, which were reviewed and rated by the Agency’s technical evaluation team. The protester, Rice Solutions, was determined to be the second choice for the award, but the Agency only entered into discussions with the eventual awardee, and requested a best and final offer.

The eventual awardee was permitted to submit a revised proposal, as its best and final offer. That best and final offer led to award of the contract. The Agency’s rationale stated that Rice Solutions’ proposal, as well as the proposal of a third offeror, was technically unacceptable. Therefore, the Agency believed it was not required to conduct discussions with anyone other than the awardee. The Agency also asserted that there was no competitive prejudice created when it allowed only the eventual awardee to submit a revised proposal, because Rice Solutions was not within the competitive range…”

“Further, GAO, when reviewing protests on the grounds of unreasonable discussions, will look to whether the protester has established that it ‘could have revised its proposal in a manner that would result in a substantial chance of the protester receiving the award’ if it had only been included in meaningful discussion. GAO found it possible that Rice Solutions may have been within the competitive range if the Agency had completed a competitive range determination and if the Agency had involved Rice Solutions in discussions. But the Agency did neither, and for that, GAO sustained Rice Solutions protest…” Read the full article here.

Source: Should We Discuss This? Agencies Required to Enter into Discussions with All Offerors in Competitive Range – By Stephanie Ellis, May 11, 2022. SmallGovCon.



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