Comptroller general questions the answers to dangling discussions

Or to use a baseball analogy, after the pitcher tried to pick off the runner at first,
the batter jumped out of the batter's box. What was so frightening about the case? The
comptroller general questioned whether an agency can repeal a statute by issuing a
regulation. Amazingly, that's not what the case was about, but the comptroller general
chose to duck anyway. Why?


The facts of the case [B-275934, April 21, 1997] were relatively simple. The agency
wanted oral submissions about such issues as personnel experience, technical approach,
management approach, facilities and resources.


After completing the oral submission, offerers were subjected to a question-and-answer
session. All bidders were asked about keeping their promise to perform in light of the
availability of certain resources.


The protester noted that some essential resources, specifically the key personnel named
in its proposal (which was different from its oral presentation), were working on other
contracts and that the other parties had not agreed to release the key personnel for the
new contract.


The agency then assessed a low probability of the key personnel being available and,
therefore, a high risk that the offerer would not succeed. That high-performance risk made
the offer unacceptable.


This case could have been decided easily without the comptroller general wimping out.
The same question being asked all offerers about the availability of key personnel meant
that the agency had amended its solicitation orally to request additional information.


All offerers had an equal opportunity to respond, albeit on the fly. Clearly, all
offerers were permitted orally to modify their submissions. Case closed.


The comptroller general's straw issue was whether the question-and-answer session
constituted discussions. Why didn't he knock it over? Is this his way of sending a signal?
If so, what signal?


The comptroller general said, "This is not the appropriate case for a substantive
ruling on whether the question and answer session constituted discussions. Until such time
as this matter is raised by a party with a stake in the outcome, we will hold in abeyance
our views on whether this approach is consistent with current statutory and regulatory
requirements." He got the first part right; the case was hardly appropriate for such
a ruling.


One signal may be that a protester with a stake in the outcome will be timely even when
it protests after the date set for receipt of initial proposals. If that is the signal,
then the comptroller general will not let what it believes to be a major policy
change-allowing agencies to redefine discussions in a manner inconsistent with statute and
regulation-be decided by default under the timeliness rules.


The comptroller general could also be signaling with the intentional use of the phrase
"current statutory and regulatory requirements." Some have urged a regulatory
redefinition of discussions to match the way the agency used the term discussion-or
defined it away-in the case.


Is he saying that an agency's solicitation might not be proper under current statutory
and regulatory requirements, but might be proper under a revised Federal Acquisition
Regulation Part 15?


The real question may be, "Who cares?" Congress does, for one. With the
advice and ratification of the executive branch, for two, it has legislated a preference
that competitive negotiations consist of-can you believe it?-competition and negotiations.
This is like the old preference for sealed bidding prior to the Competition in Contracting
Act.


So, some people have argued that if we don't call a dialogue that permits proposal
modification discussions, either by calling the dialogue clarifications or calling the
proposals presentations, then awards can be made in a big hurry without much effort.


But the comptroller general's other decisions seem to indicate otherwise. He is a fan
of negotiation, especially when it provides enhanced information, improves offers and
lowers prices. What a concept. Thus, the comptroller general in the judicial mode seems to
care, as well. Regulations that use verbal legerdemain to establish a preference for the
exception may not be smiled on.


Bob Little, an attorney who has worked for the General Accounting Office and a
Washington law firm, teaches federal contract law.


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