Government Contracts Monitor
Talk To Me: The Cone of Silence
October 8, 2012
By: Lindsay Simmons
It still comes as a surprise to some contractors that the Government is not required to talk with them about their proposal and, even when it does, that it is not required to have the same conversation with them as it does with their competitors. This is particularly true in FAR Part 8 procurements under a GSA Federal Supply Schedule. So, don't be surprised if the Government won't talk to you - if it retreats into a cone of silence.
The Court of Federal Claims just reconfirmed that the cone is alive and well in Distributed Solutions, Inc. v. United States, No. 12-274 C (Ct. Cl. July 30, 2012) (issued for publication Aug. 10, 2012). In round three of a seemingly endless series of protests, Distributed Solutions, Inc. (“DSI”) claimed the Government left the protection of its cone, but did not really talk – that its discussions with DSI were not "meaningful" as described in FAR Part 15. But this kind of “meaningful” conversation is not required in Part 8 acquisitions. As the Court said –
[P]laintiff contends that DOL failed to conduct meaningful discussions pursuant to FAR 15.306 because, when conducting discussions, “DOL never mentioned any deficiencies in [plaintiff’s] Technical Approach, despite its later evaluation of deficiencies in [plaintiff’s] Sub-factor (a) and Sub-factor (b) submissions.” Additionally, plaintiff contends DOL failed to comply with FAR 15.306 because it did not provide plaintiff with an opportunity to respond to its past performance evaluations . . . . Plaintiff contends that because DOL engaged in discussions, it was required to follow FAR Part 15 procedures. This misconstrues case law.
So don't count on having a heart to heart with the contracting officer. Your proposal should be able to stand on its own, without explanation, clarification or opportunity for revision. And even if there is an opportunity to talk, don't expect the Government to have the same script for every conversation. As the Court noted:
[T]he Court will review DOL’s actions to ensure they comply with FAR’s requirement of fundamental fairness in the procurement process. This requires that “[a]ll contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same.” FAR 1.102-2(c)(3). DOL treated all quoters fairly with respect to discussions. As plaintiff points out, “DOL held Discussions with each of the vendors in the competitive range following product demonstrations.” Nothing in the record implies that these discussions were unequal or that one quoter was provided more information than another.
Just because the Government conducts discussions does not mean it has to comply with FAR Part 15. According to the Court, “clear intentions that FAR Part 15 procedures will be used is necessary to trigger their application to a procurement.” Here, “ the solicitation not only did not contemplate discussions, but also did not condone a FAR Part 15 procedure governing discussions. “
Take away: Make your first shot your best shot. Don’t rely on being able to pierce the cone of silence.
Lindsay Simmons is the attorney responsible for the content of this article.