The GAO stated the “communications between a procuring agency and an offeror that permit the offeror to materially revise or modify its proposal generally constitute discussions.” ³

The GAO went on to state that “communications that permit an offeror to correct a mistake constitute discussions unless the mistake is minor and both the existence of the mistake and what was actually intended are clearly apparent from the face of the proposal.”. Furthermore, “if an agency does conduct discussions with one offeror, it must conduct discussions with all competitive range offerors, and provide all such offerors an opportunity to submit revised proposals.” ⁴
From the record, the GAO said that it was “clear the agency conducted discussions with the awardee following submission of the FRPs.” The agency relied on the awardee's post FRP discussions regarding its offer. Hence, these communications constituted discussions. Since the awardee engaged in prohibited post-FRP discussion, the protest of CIGNA was sustained.

If you receive a call from the buyer after submission of an FRP, alarm bells should ring. Be careful to determine if the Buyer wants to clarify a mistake, or engage in prohibited discussions. If the agency indicates they want to re-open discussions with you, ascertain from the Contracting Officer if they plan to do likewise with all offerors. There are few things worse in Government procurement than snatching defeat from the jaws of victory

if your award is protested by a disappointed offeror and the protest is sustained.

Tom Petruska, Owner
Contracts Unlimited, Incorporated

Footnotes:

1. FAR Part 15

2. FAE 15.304

3. FAR 15.306(d).

4. KPMG Peat Marwick, LLP, B-259479, May 9, 1995

The foregoing is not legal advice nor is it a legal opinion. Please contact your attorney for legal advice.

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