Government Contracts No Need to Reopen Discussions to Address New Exceptions
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Thursday, November 29, 2018

No Need to Reopen Discussions to Address New Exceptions

By Government Contracts Editorial Staff

The government had no obligation to reopen discussions on the protester’s proposal for penetrator warhead production, because the protester’s final revised proposal was technically unacceptable. Following discussions, the government found the protester’s proposal and two others were technically acceptable. The government then invited the protester to submit an FPR, but it advised the protester its “[t]echnical [a]pproach [was] currently assessed as ‘[a]cceptable,’” any changes in its FPR had to be clear and substantiated, and there would be no further discussions. After reviewing the FPR, the government evaluated the protester as offering the lowest evaluated price of the three remaining offerors. However, the government also found the protester’s FPR introduced changes. The evaluators found the protester took two new exceptions to technical design package requirements, and in concurring, the source selection authority found the protester’s contradictory statements and lack of explanation for the exceptions made the FPR unacceptable. According to the protester, the government unreasonably failed to reopen discussions.

Proper Exercise of Discretion. The Comptroller General explained that the government is not required to reopen discussions to afford an offeror an additional opportunity to revise its proposal where a weakness or deficiency is first introduced in the FPR. Here, the government considered the correction potential of the initial proposals and elected to open discussions with all offerors in the competitive range. Then, it engaged in a “robust” round of discussions, providing both written discussion questions and an opportunity to seek clarification of the questions. At the conclusion of discussions, the government expressly notified the protester that its proposal was technically acceptable and that any changes made in the FPR would be made without the benefit of further discussions. The record showed no basis to question the reasonableness of the government’s exercise of its discretion not to conduct additional rounds of discussions. (Ellwood National Forge Co.Protests and Costs, 33 CGEN ¶116,154).

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