Created June 2014:
Marathon Medical Corporation
Sometimes the GAO will sustain a protest where it is found that the agency improperly held discussions with one offeror and not the other. Federal Acquisition Regulation (FAR) §15.306 describes a range of exchanges that may take place between an agency and an offeror during negotiated procurements. But, it is important to recognize the distinction between “clarifications” and “discussions.” This distinction can be fatal for an agency’s defense to a protest alleging that there were “unequal discussions” held.
On the one hand, clarifications are defined as limited exchanges between the agency and offerors that may allow offerors to clarify certain aspects of proposals or revise minor errors. These do not rise to the level of a sustainable “unequal discussion” protest.
On the other hand, discussions occur when an agency indicates to an offeror aspects of its proposal that could be altered or explained to materially enhance the proposal’s potential for award or to obtain information from offeror that is necessary to determine the proposal’s acceptability. Furthermore, if the agency engages in these types of discussions with one offeror, it must do the same with all others whose proposals are also in the competitive range.
In Marathon Medical Corporation, Marathon’s proposal was rejected as being technically unacceptable. Marathon filed a protest alleging that the agency improperly held discussions with the other offeror and failed to hold discussions with them. The protest was sustained. The agency requested samples from one offeror for all proposed equal items to verify if the proposed components were equal or equivalent and this amounted to discussions for the purpose of allowing the offeror to establish acceptability of its proposal. Since the agency failed to provide Marathon with a similar opportunity to meet the solicitation requirements, its actions constituted unequal discussions.
Accordingly, an agency must ensure that all competitive offerors are given equal opportunity to meet the solicitation requirements. If they do not, competitive offerors may be able to file a successful protest and contest the award.