COMMUNICATIONS—COMPETITIVE PROPOSALS

If contract award will be made without discussions, offerors may be given the opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. An example of the former is the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond.

Award may be made without discussions if the solicitation states that the government intends to evaluate proposals and make award without discussions. If the solicitation contains such a notice, the government may later determine that it is necessary to conduct discussions. Communications are exchanges between the government and offerors after receipt of proposals, leading to establishment of the competitive range.

If a competitive range is to be established, these communications:

1. Are limited to the offerors whose past performance information is the determining factor preventing them from being placed within the competitive range and those offerors whose exclusion from, or inclusion in, the competitive range is uncertain.

2. May be conducted to enhance government understanding of a proposal, allow reasonable interpretation of the proposal, or facilitate the government’s evaluation process. (Such communications are not to be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal. Such communications may be considered in rating proposals for the purpose of establishing the competitive range.)

3. Are for the purpose of addressing issues that must be explored to determine whether a proposal should be placed in the competitive range. (Such communications are not to provide an opportunity for the offeror to revise its proposal, but may address ambiguities in the proposal or other concerns, e.g., perceived deficiencies, weaknesses, errors, omissions, or mistakes and information relating to relevant past performance.)

4. Will address adverse past performance information on which the offeror has not previously had an opportunity to comment.

If discussions are to be conducted, the government must establish a competitive range based on the ratings of each proposal against all evaluation criteria. The government must establish a competitive range comprising all the most highly rated proposals, unless the range is further reduced for purposes of efficiency. The government may determine that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted. If the solicitation notifies offerors that the competitive range can be limited for purposes of efficiency, the government may limit the number of proposals in the competitive range. Offerors excluded or otherwise eliminated from the competitive range may request a debriefing.

After establishment of the competitive range, the government and offerors begin negotiations with the intent of allowing the offerors to revise their proposals. These negotiations may include persuasion, alteration of assumptions and positions, and 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. Discussions are tailored to each offeror’s proposal, and are conducted by the contracting officer with each offeror within the competitive range. The primary objective of discussions is to maximize the government’s ability to obtain best value, based on the requirement and the evaluation.

The government must indicate to, or discuss with, each offeror still being considered for award, significant weaknesses, deficiencies, and other aspects of its proposal (such as cost, price, technical approach, past performance, and terms and conditions) 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 discussing other aspects of the proposal, the government may, in situations where the solicitation stated that evaluation credit would be given for technical solutions exceeding any mandatory minimums, negotiate with offerors for increased performance beyond any mandatory minimums, and the government may suggest to offerors that have exceeded any mandatory minimums (in ways that are not integral to the design) that their proposals would be more competitive if the excesses were removed and the offered price decreased.

If, after discussions have begun, an offeror originally in the competitive range is no longer considered to be among the most highly rated offerors being considered for award, that offeror may be eliminated from the competitive range whether or not all material aspects of the proposal have been discussed, and whether or not the offeror has been afforded an opportunity to submit a proposal revision. Government personnel involved in the acquisition may not engage in conduct that: (1) favors one offeror over another; (2) reveals an offeror’s technical solution, including unique technology, innovative and unique uses of commercial items, or any information that would compromise an offeror’s intellectual property to another offeror; (3) reveals an offeror’s price without that offeror’s permission; or (4) reveals the names of individuals providing reference information about an offeror’s past performance or knowingly furnishes source selection information. However, the government may inform an offeror that its price is considered by the government to be too high or too low, and reveal the results of the analysis supporting that conclusion. It is also permissible, at the government’s discretion, to indicate to all offerors the cost or price that the govern-ment’s price analysis, market research, and other reviews have identified as reasonable.

If an offeror’s proposal is eliminated or otherwise removed from the competitive range, no further revisions to that offeror’s proposal are considered. The government may request or allow proposal revisions to clarify and document understandings reached during negotiations. At the conclusion of discussions, each offeror still in the competitive range will be given an opportunity to submit a final proposal revision. The government must establish a common cut-off date only for receipt of final proposal revisions. Requests for final proposal revisions advise offerors that the final proposal revisions must be in writing and that the government intends to make award without obtaining further revisions.