Words have special meanings in federal contracting.
Here’s a description of how “discussions” differ from “clarifications” and pre-competitive range communications, as well as the Government’s discretion to conduct (or not conduct) such “exchanges.”
Discussions are exchanges between the Government and offerors after a competitive range has been established and invite or permit offerors to revise their proposals. The underlying purpose of discussions is to allow offerors to strengthen their proposals and the procuring agency to get a better deal. The Government Accountability Office (GAO) has long held that the “acid test” for determining if a particular exchange constitutes discussions is “whether the agency has provided an opportunity for proposals to be revised or modified.” Raytheon Co., B‑404998, July 25, 2011, 2011 CPD ¶ 232 at 5. This may be an actual pen-and-paper change to the proposal, or any other exchange that is necessary for the agency to determine the acceptability of a proposal. See Int’l Waste Indus., B-411338, July 7, 2015, 2015 CPD ¶ 196 at 5.
Clarifications, on the other hand, are “limited exchanges.” FAR 15.306(a)(1). These exchanges do not allow offerors to revise their proposals, but may allow them to clarify certain aspects of their proposals or resolve minor clerical errors. FAR 15.306(a)(2). Clarifications may occur after a competitive range has been established, or even when discussions and proposal revisions are not contemplated at all. Clarifications “cannot 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.” STG, Inc., B-411415; B-411415.2, July 22, 2015, 2015 CPD ¶ 240 at 9.
Communications are a third category of exchanges and occur before the competitive range has been established. See FAR 15.306(b). Like clarifications, they do not allow offerors “to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal.” FAR 15.503(b)(2). They are intended only to permit the Government to improve its understanding of proposals or past performance information, and address minor issues before a competitive range is established. When adverse past performance information to which the offeror has not yet had an opportunity to respond would be the “determining factor” in excluding the offeror from the competitive range, the agencymust open communications with the offeror to address that information. FAR 15.306(b)(1)(i). For all other issues, the agency may hold communications if an offeror’s “exclusion from, or inclusion in, the competitive range is uncertain.” FAR 15.306(b)(1)(ii).
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