When Do Oral Presentations Become “Discussions” Under FAR Part 15?
It is not uncommon for a FAR Part 15 negotiated procurement to include a round of “Oral Presentations” in the proposal/evaluation process. Oral Presentations are permitted by FAR 15.102, and are usually used to augment the agency’s understanding of the written proposal. But at what point does the dialogue between the agency and the offeror during “oral presentations” transition into “discussions” as defined in FAR 15.306(d)? The distinction is critical because if “discussions” are conducted with one offeror in the competitive range, “meaningful discussions” must be conducted with all offerors in the competitive range (multiple bid protests have been sustained over the past few years based on the failure to conduct meaningful discussions with all offerors in the competitive range).
In TDS, Inc., B-292674, Nov. 12, 2003, 2003 CPD ¶ 204, GAO explained the test as follows:
The FAR anticipates “dialogue among the parties” in the course of an oral presentation, FAR §15.102(a), and we see nothing improper in agency personnel expressing their view about vendors’ quotations or proposals, in addition to listening to the vendors’ presentations, during those sessions. Once the agency personnel begin speaking, rather than merely listening, in those sessions, however, that dialogue may constitute discussions. As we have long held, the acid test for deciding whether an agency has engaged in discussions is whether the agency has provided an opportunity for quotations or proposals to be revised or modified. …. Accordingly, where agency personnel comment on, or raise substantive questions or concerns about, vendors’ quotations or proposals in the course of an oral presentation, and either simultaneously or subsequently afford the vendors an opportunity to make revisions in light of the agency personnel’s comments and concerns, discussions have occurred.
GAO went on to sustain that protest, finding that the oral presentation constituted discussions because “the agency afforded the firms an opportunity to revise their quotations, in particular in the areas raised by agency personnel during the oral presentations, and the record further shows that the firms in fact made revisions to their submissions, both as to technical matters and as to price.”
This same issue was revisited this month by GAO in Companion Data Services, LLC, B-410022, B-410022, Oct. 9, 2014. Applying the test from TDS, GAO ultimately held that the dialogue between the agency and Lockheed Martin (the awardee) during oral presentations did not constitute discussions because “the agency made a conscious effort to ask only limited questions and to seek clarification regarding aspects of offerors’ proposals that had been referenced during the presentation; the agency did not seek, nor did the offerors’ responses constitute, proposal revisions.”
However, the Companion Data Services decision leaves questions. GAO held the dialogue did not constitute discussions primarily because nothing in Lockheed’s written proposal was inconsistent with the responses it provided to the agency’s questions during/after oral presentations – “nothing in Lockheed’s response to the agency’s question altered its proposal.” But what if Lockheed’s responses had been inconsistent with its written proposal? It is quite possible that GAO would have found the oral presentations to be discussions if Lockheed’s answers had been inconsistent with its written proposal (essentially revising its written proposal). Had the oral presentations been considered discussions, it is likely the bid protest would have been sustained, setting the procurement back several months (which had already taken 9 1/2 months from solicitation to award, plus an additional 4 months for the protest). Lack of meaningful discussions is a very powerful protest argument because the protestor’s burden of showing prejudice is low and when sustained it has the potential to set the procurement back several months. Therefore to reduce the risk of a lack of meaningful discussion protest being sustained, agencies should be particularity careful during oral presentations not to invite proposal revisions, and if its unclear whether an oral presentation constituted discussions, it would behoove the agency to conduct a round of discussions with all offerors.