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GCN Home > June 5, 2000 issue

FEDERAL CONTRACT LAW: Joseph J. Petrillo

Can we talk? Not as much as you think, GAO says

The Federal Acquisition Regulation Council and the General Accounting Office want to whittle away at one of the best recent procurement reforms.

The major rewrite of the FAR’s Part 15 opened the door to more extensive and substantive discussions between the government and vendors competing for contracts.

But now a proposed revision and new GAO decisions threaten to limit these communications.

The prospective amendment would water down the rules about topics of discussion when the government opens negotiations with vendors it has decided are within the so-called competitive range.

As it stands, FAR requires the government to discuss deficiencies plus other aspects of the proposal—such as cost, price, technical approach, past performance, and terms and conditions—that in a contracting officer’s opinion a bidder could change to materially enhance the proposal’s chance of winning. Basically then, if the issue could be important, it’s OK to discuss it.

But the FAR Council proposes to turn the clock back. Discussions would still have to cover significant weaknesses, deficiencies and adverse past-performance information to which the bidder hasn’t had a chance to respond. But the contracting officer would only be encouraged, not required, to discuss other aspects of the proposal.

The revision idea came from a GAO protest decision [GCN, Feb. 8, 1999, Page 23]. GAO ruled that the rewritten FAR held that discussing other aspects was not mandatory, only optional. In other words, the word shall doesn’t mean what we all thought it meant.

The proposed amendment takes its cue from GAO and changes the language from mandatory to optional. Citing the GAO case, the FAR Council calls the change a clarification.

Mum’s the word

Another recent GAO decision also encourages agencies to clamp down on exchanges with bidders. This second case dealt with adverse past-performance information. Requiring past-performance evaluations was a cornerstone of procurement reform. In practice, however, problems and inconsistencies have plagued their use.

The rewritten Part 15 aimed to make it easier to get information from bidders about past performance. An agency wasn’t limited to raising the topic only in formal discussions. It could also address past performance in new categories of talks called clarifications or communications—easier and less comprehensive exchanges.



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