Final Proposal Revision

Generally, after the government receives proposals under a FAR Negotiable Procurement¹ the agency will conduct discussions (also known as negotiations) with an offeror after receipt of the initial proposal regarding elements of the technical or cost volumes. Following these discussions the agency will provide an opportunity to invite all offerors in the competitive range to submit a Final Revised Proposal (“FRP”)(formerly known as Best and Final Offers (“BAFO”)) based on the negotiations that were conducted between the offeror and the Government. When the agency issues the invitation, it routinely states that all discussions have been concluded and that no other negotiations will be held. Stated differently, the FRP is the last and final opportunity for offerors to change their offer to the Government, if and when applicable, that amends the initial offer by incorporating the response to the proposal elements that were discussed. In other words, the FRP is the last chance for an offeror to submit the winning proposal. This policy seems straightforward.

But what happens when the Government engages in discussions after receipt of the FRP? Is the offeror entitled to a “third bite of the apple” by submitting revisions to their last and final offer? This question was the subject of a decision by the GAO in the matter of

CIGNA Government Services, LLC File B-297915.2, dated May 4, 2006.

CIGNA protested the award of a Department of Health and Human Services, Center for Medicare and Medicaid Services, contract for Medicare claims processing services. Specifically, CIGNA protested the conduct of meaningful discussions with the awardee after the receipt of FRPs, and permitting the awardee to materially revise their proposal, without furnishing the same opportunity to CIGNA.

The FAR does not permit an agency² to obtain clarification of an apparent clerical or arithmetical error, such as correcting a typographical error or mathematical mistake. But what about significant revisions to the proposal?

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