Charade Discussions:
Are You a Player in
This No-Win Game?
A particular area of protest vulnerability in the
awarding of U.S. government contracts is the failure
to hold meaningful discussions, which result in
“charade discussions.”
B Y C h ar l es D. Solloway Jr.
44
Contract Management | June 2011
Charade Discussions: Are you a player in this no-win game?
It has long been my
observation that a
particular area of
protest vulnerability in
the awarding of U.S.
federal government
contracts is the failure
to hold meaningful
discussions with competing
contractors. I have
characterized these less
than meaningful discussions
as “charade discussions.”
Charade discussions are discussions held
between the government and competing
contractors that are not as fruitful as they
could be. In some cases they can waste
everyone’s time. Participants go through the
motions and may even meet the minimum
Federal Acquisition Regulation (FAR) standards
for discussions, but they do not achieve
the results that discussions are intended to
achieve. They can also lead to disappointed
competitors and the lodging of protests.
“Discussions” are defined by the FAR as government negotiations that are conducted in
a competitive environment.1 They take place
as one of the most significant steps in a
disciplined government contracting process
known as “source selection.”
When proposals are received from contractors competing for a contract award,
the government has the choice of either
awarding the contract without discussions
or awarding the contract after holding
discussions. Competing contractors are informed in advance of the government intent
in this regard in the request for proposal
or other solicitation. But even where the
government has indicated intent to award
without discussions, contracting officials
(i.e., the contracting officer and/or other
source selection authority) can change their
minds following the receipt and evaluation
of proposals and decide to hold discussions
notwithstanding the original intent.
Discussions, when they are held, take place
only with those contractors that have been
placed in the “competitive range”—the
most highly rated among competing proposals. The obvious purpose of these discussions is to allow the competing contractors
Contract Management | June 2011
45
Charade Discussions: Are you a player in this no-win game?
to make corrections and changes that would
make their proposals more attractive to the
government from a combination of quality,
risk, and cost considerations.2 Thus, when
proposal changes and corrections are made
as a result of discussions, they should both
enhance the contractor’s opportunity for
contract award and lead to a better contract
from the standpoint of the government.
The discussions held with competing
contractors in the competitive range should
be “meaningful” discussions. In long established case law (opinions of the comptroller
general and the courts), this was generally
interpreted to mean that the government
contracting officer had to discuss, prior to
asking for final proposal revisions, all proposal deficiencies and enough weaknesses
that the competing contractor involved
would have at least one opportunity to improve its proposal to a point where it could
be a legitimate contender for award. A “deficiency” was generally defined as a fault in
a proposal that would make it unacceptable
unless cured. This could include any number
of situations, including an inadequate technical approach or even a failure to furnish
all required information. A “weakness” was
generally defined as an aspect of a proposal
46
Contract Management | June 2011
that was not a deficiency but would cause
a proposal to be rated (scored) lower than
ideal and in many cases lower than the ratings of competitors.
Case law also made it clear that, in appropriate circumstances, a competing contractor
should be advised when its costs were either
too high or too low.
Prior to 1997, the FAR did not specifically
address these requirements of case law. An
attempt to remedy this situation was made
when the FAR was changed to define “deficiencies” and “weaknesses” and to establish
a regulatory standard for meaningful discussions. It is these FAR changes that may now
be contributing to charade discussions.
ƒƒ
A weakness means a flaw in the proposal that increases the risk of unsuccessful contract performance.
ƒƒ
A significant weakness in the proposal is
a flaw that appreciably increases the risk
of unsuccessful contract performance.
However, in describing what must be addressed in the discussion phase of the source
selection process, the FAR does not require
that a sufficient number of weaknesses
be addressed to permit the contractor to
become a legitimate contender for award.
Instead, the FAR contains this guidance:
At a minimum, the contracting officer
must…indicate to, or discuss with, each
offeror still being considered for award,
FAR Part 15 defines deficiencies, weaknesses,
and significant weaknesses as follows:
deficiencies, significant weaknesses, and
ƒƒ
opportunity to respond. The contract-
adverse past performance information
to which the offeror has not yet had an
A deficiency is a material failure of
a proposal to meet a government
requirement or a combination of
significant weaknesses in a proposal
that increases the risk of unsuccessful
contract performance to an unacceptable level.
ing officer also is encouraged to discuss
other aspects of the offeror’s proposal
that could, in the opinion of the contracting officer, be altered or explained
to enhance materially the proposal’s
potential for award.3
Charade Discussions: Are you a player in this no-win game?
There is some encouragement regarding “other aspects,” but there is no FAR
requirement for the discussion of weaknesses other than significant weaknesses
that appreciably increase the risk of
unsuccessful performance. Consequently,
some proposal evaluation forms used
by government evaluators only address
deficiencies and “significant” weaknesses;
and too often it is only deficiencies and
significant weaknesses that are addressed
in discussions. Therefore, a contractor
with a proposal that is not as attractive
as others (and that will continue to be
less attractive unless weaknesses are
discussed) can go through the time and
expense associated with charade discussions and never have a real opportunity
for award, even when it was originally
found to be among the most highly rated
proposals. In addition to wasting time and
money, these types of charade discussions
cause unnecessary ill will and bad feelings
between the government and its private
sector partners.
Some agencies have recognized this
shortcoming and have developed internal
procedures more in line with the traditional definition of “meaningful discussions.”
For example, the Army Source Selection
Manual states: “To be meaningful, at
a minimum discussions must include
identification of all evaluated deficiencies,
significant weaknesses, weaknesses, and
any adverse past performance information
to which the offeror has not yet had an
opportunity to respond.”4
In addition to the problem of not discussing weaknesses, the failure to discuss cost
issues can be another factor in charade discussions. While the FAR makes it clear that
price or cost can be a part of discussions
when it states that discussions “may include
bargaining” and that bargaining “may apply
to price,” it does not require any discussions
relating to cost or price. The only cost discussion addressed in the FAR requirements
for discussions is this: “the government may
suggest to offerors that have exceeded any
mandatory minimums (in ways that are not
integral to the design), that their proposals
would be more competitive if the excesses
were removed and the offered price decreased.”5 Additionally, FAR 15.4 requires the
contracting officer to purchase supplies and
services at a fair and reasonable price.
If there is a proposal in the competitive
range with a fair and reasonable price that
is substantially equal to others in technical
merit but more expensive than one or more
other proposals, then that proposal cannot
be selected for award unless discussions on
costs are held. If the higher cost issue is not
addressed, then any discussions that take
place regarding that proposal are charade
discussions. Either cost must be discussed or
the proposal should not be included in the
competitive range.
Many in the acquisition community have
recognized these areas of vulnerability
in the conduct of discussions, and have
observed the high rate of success in protests
Federal Acquisition Simplified
S
uccessful source selection begins
with Charles Solloway’s step-bystep, comprehensive, and easyto-use resource. Whether you are
new to the acquisition team or an
experienced practitioner looking
to sharpen your skills, this highly
readable handbook will guide you
through the entire acquisition
process.
Price: $59
© 2011, 6˝ x 9˝ softcover, 407 pages,
ISBN 978-1-56726-300-8,
Product Code B008
J
oseph Beausoleil’s completely
revised second edition provides the
most up-to-date information you'll
need to conduct the process of past
performance evaluations, including
new approaches to standardizing
assessment areas and rating scales,
streamlining the source selection
process, and ensuring that awards
are made to the most
qualified offerors.
Price: $89
©2010, 7˝ x 10˝ hardcover, 248 pages,
ISBN 978-1-56726-280-3,
Product Code B803
Make these books your first stop for quick and easy guidance on
government source selection.
Order Today!
(Please use promotion code NCMA0611).
Phone: 1-800-506-4450 or Online: www.managementconcepts.com/pubs
Contract Management | June 2011
47
Charade Discussions: Are you a player in this no-win game?
involving the failure to hold meaningful
discussions. In the September 2006 edition
of the Procurement Law Advisor, published
by Management Concepts Inc., Verne Edwards, a noted acquisition professional, was
quoted as saying “full disclosure would be
an effective way of holding discussions” and
that a contracting officer should prepare
for submission to a competing contractor “a
professional-looking compilation of all evaluation findings and conclusions about the
offeror’s proposal, including the conclusions
of individual evaluators, and sum things up
in a cover memorandum if necessary.”6
decisions must be made throughout the
source selection process, including decisions regarding what should be discussed.
Charade discussions can and should be
avoided. This particular game of charades
is a game without a winner. CM
Edwards’ suggestion goes beyond the need
for addressing only “enough weaknesses”
(what is “enough” is a business decision of
the contracting officer). Further, it exceeds
the minimum requirements of case law.
The comptroller general has consistently
held that not all weaknesses must be
addressed and that it is not necessary
to “spoon feed” competing contractors
as to how they might improve their initial
proposals. However, there is nothing inherently improper in the full disclosure suggestion and it would certainly go a long way
toward eliminating charade discussions.
Clearly, it would give the government a
greater opportunity of awarding a contract
that represents the best value.
Acquisition Team, published by Management
About the Author
CHARLES “CHUCK” SOLLOWAY JR., CPCM,
is a founding member of the Upper Chesapeake Chapter of NCMA. He is also the author
of the book: Source Selection Step by Step—A
Working Guide For Every Member of the
There are those who would argue that
following the Edwards suggestion would
constitute prohibited technical leveling.
However, technical leveling normally does
not occur without repeated rounds of
discussions. Further, technical leveling has
been replaced in the FAR by a prohibition
against “favoring” one contractor over
another. If all contractors in the competitive range are given the same single
opportunity to address all deficiencies and
weaknesses, it is unlikely that favoring will
be perceived or occur.
Until these issues are more fully addressed
in the FAR, the best defense against
charade discussions is informed government acquisition personnel who are aware
of the aims and issues involved in source
selection rather than being concerned with
just following regulations. Good business
48
Contract Management | June 2011
Concepts Press.
Send comments about this article to
[email protected].
Endnotes
1.
2.
FAR 52.215-1(a).
FAR 15.3 tells us that the primary objective is
“to maximize the government’s ability to obtain
best value based on the requirement and the
evaluation factors set forth in the solicitation.”
3.
FAR 15.306(d)(3).
4.
Army Source Selection Manual (February 26,
2009): 43 (emphasis added).
5.
6.
FAR 15.306(d)(4).
As quoted in “Does Protest-Likely Concept of
‘Meaningful Discussions’ Need to be Fixed?”
Procurement Law Advisor (September 2006).