Federal procurements often include a competitive range of offerors seeking the contract award.  The Federal Acquisition Regulation (FAR) competitive range procedure offers the agency an incremental stage in the competition where it can pare down a large pool of offerors into a narrow group consisting of only those proposals with a reasonable chance of receiving the award.

But what qualifications are used to determine the offerors included in the competitive range?  And can you protest your firm’s improper exclusion from a competitive range?

Let’s start with that second question.  Yes.  Your firm is absolutely entitled to protest an agency’s competitive range decision if it was made unfairly or not in accordance with the solicitation requirements.  In fact, competitive range proposals sometimes have a greater window for success.  There is much less heartburn involved for the agency in adding one more qualified offeror to the pool (as opposed to traditional protests that challenge the agency’s final decision and seek to wrestle a contract award away from someone else).

Now, circling back to the first question, FAR 15.306 (Exchanges with offerors after receipt of proposals) defines a competitive range as consisting of “all of the most highly rated proposals.”  The agency evaluates proposals against the criteria included in the solicitation to narrow the field.

In a recent protest, an offeror challenged its exclusion from the competitive range for a contract for base operations and spaceport services to be performed at the John F. Kennedy Space Center and NASA facilities on Cape Canaveral Air Force Station.  In part, the protester challenged the agency’s decision on the basis that its proposal included an acceptable technical approach (i.e., the proposal was not defective and conceivably could have received the contract award).

GAO took the opportunity to emphasize that mere technical compliance does not guarantee inclusion in a competitive range.  Specifically, GAO accepted the agency’s conclusion that the lack of strengths in the protester’s proposal, combined with its high price (as compared to other similar offers), rendered it unlikely to be considered for award, even if some of the proposal’s weaknesses could be addressed in future discussions with the agency.

In other words, the proposal was excluded from the competitive range because there was no reasonable chance it would receive the contract award.

Interestingly, GAO’s decision also addresses the protester’s argument that the agency was required to conduct a best-value tradeoff analysis among all of the evaluation factors when establishing the competitive range.  Again, GAO disagreed with protester.  The focus of a competitive range is on culling down the group of offers to only the most highly rated – not following the procedures included in the solicitation for the ultimate contract award decision.

GAO’s decision should not discourage contractors from pursuing a debriefing after exclusion from the competitive range – or even filing a protest.  The protester’s procedural basis was solid – the agency is accountable for making its competitive range decision in a fair, reasonable, and well-documented manner.  With better facts, a competitive range protest offers a low-risk, high-reward opportunity to get back into the competition for the award.

In today’s Federal marketplace, it is very common to see solicitations that give the Agency the option of entering into discussions with offerors.  The primary objective of discussions is to maximize competition and, in turn, the Agency’s ability to obtain the best possible value.

Once it makes the decision to enter into discussions, the Agency must do so in good faith and with all offerors remaining in the competition.  Further, the discussions themselves must be “meaningful” – a fairly subjective standard that (predictably) often works its way into bid protests.

In a nutshell, to be meaningful, discussions must identify proposal deficiencies and significant weaknesses that reasonably could be addressed in order to materially enhance the offeror’s potential for award.  The discussions also need to be sufficiently detailed to lead the offeror to the areas of its proposal that require revision or amplification.  Discussions should not be misleading or prompt the offeror to engage in a way that will not address the Agency’s actual concerns.

All of that said, the Agency is not required to hold the offeror’s hand (so to speak) to conduct meaningful discussions.  The Agency is not required to hold all-encompassing discussions, or to discuss every aspect of a proposal that receives less than the maximum score.  The Agency also need not advise of minor or insignificant weaknesses, even if those weaknesses are later used to differentiate between closely ranked offers.

Federal Acquisition Regulation (FAR) 15.306 is a good beginning resource for learning more about the Agency’s requirements during discussions.

As I mentioned above, discussions tend to be a fertile ground for bid protests because of the ample opportunity for disparate treatment between offerors – intentionally or otherwise.  Understanding the how the Agency should conduct discussions opens the door to potentially winning bid protest arguments.

For example, in a recent decision, GAO sustained a protest alleging that the Agency failed to conduct meaningful discussions.  Specifically, the protester argued the Agency did not do enough to shed light on how certain solicitation requirements would be applied during the evaluation process.

GAO agreed with the protester and even took it one step further – concluding that not only were the discussions not meaningful, they actually mislead the offeror.  That is, the Agency’s discussions led the offeror to believe that it needed to amplify certain past performance experience included in its proposal when, in fact, the Agency did not consider that experience relevant to begin with.

Today’s takeaway is that contractors disappointed with an award decision should take a long look at the way the Agency conducted discussions before walking away.  If there is a legitimate question as to whether the discussions were conducted in a fair and meaningful way, it could form a strong basis for a bid protest.