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Barry McVay's FEDERAL CONTRACTS DISPATCH

DATE: April 3, 2000

FROM: Barry McVay, CPCM

SUBJECT: Federal Acquisition Regulation (FAR); Discussion Requirements

SOURCE: Federal Register, April 3, 2000, Vol. 65, No. 64, page 17581

AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)

ACTION: Proposed Rule

SYNOPSIS: It is proposed that FAR 15.306, Exchanges with Offerors After Receipt of Proposals, to clarify the scope of discussions in competitive negotiated acquisitions.

DATES: Submit comments on or before June 2, 2000.

ADDRESSES: Interested parties should submit written comments to the General Services Administration, FAR Secretariat (MVRS), 1800 F Street, NW, Room 4035, Attn: Ms. Laurie Duarte, Washington, DC 20405. Cite FAR case 1999-022 in all correspondence related to the proposed rule. Address e-mail comments to farcase.1999-022@gsa.gov.

FOR FURTHER INFORMATION CONTACT: Ralph De Stefano, Procurement Analyst, 202-501-1758.

SUPPLEMENTAL INFORMATION: The proposed rule would amend FAR 15.306(d) to clarify that the contracting officer is not required to discuss every area where the proposal could be improved.

The proposed rule would explain that discussions of offerors' proposals beyond deficiencies and significant weaknesses are a matter of contracting officer judgment. The proposed rule would do this by making the last sentence of paragraph (d)(3) a new paragraph (d)(4) (the current paragraph (d)(4) would be redesignated as paragraph (d)(5), and rewriting what remains of paragraph (d)(3) as follows:

"At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and [FAR] 15.307(a) [Proposal Revisions], indicate to or discuss with each offeror still being considered for award significant weaknesses, deficiencies, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the offeror's proposal (such as cost, price, technical approach, past performance, and terms and conditions) that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal's potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting officer judgment."

The key change is the addition, as the second to last sentence of paragraph (d)(3), of "However, the contracting officer is not required to discuss every area where the proposal could be improved."

The General Accounting Office (GAO) has already interpreted the FAR consistently with this clarification (see MRC Federal, Inc., B-280969, December 14, 1998, and Du & Associates, B-280283.3, December 22, 1998). The proposed rule clarifies that the contracting officer is "encouraged" to discuss other aspects of an offerors' proposal that have the potential, if changed, to materially increase the value of the proposal to the government, but that the extent of the discussions, if any, are within the contracting officer's discretion. The current language is hazy ("the contracting officer shall...indicate to, or discuss with, each offeror still being considered for award, significant weaknesses, deficiencies, and other aspects of its proposal...").

FOR FURTHER INFORMATION CONTACT: Barry McVay at 703-451-5953 or by e-mail to BarryMcVay@FedGovContracts.com.

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