What's clear isn't FAR: Reginald Parseman explains it all for you
KOPD: What is the simplest way to view these re-engineered definitions?
Doc P: Well, from a regulatory scholarship viewpoint, we look very carefully at
what the regulations actually say. I've found that to be a very satisfactory way to
discover patent relationships and obvious consistencies.
KOPD: I've noticed from your publications a keen grasp of the incontrovertible.
Doc P: Thank you. There are only three definitions you need to worry about:
communications, negotiations and discussions. All of them concern exchanges of information
occurring, if at all, only after receipt of initial proposals and before award. It's hard
to believe there can be three different types of information exchange in that span, but
KOPD: What are exchanges of information happening before receipt of initial
Doc P: They are called "exchanges of information." Deucedly clever,
what? In any event, all interchanges of information that occur after the government's
receipt of initial proposals are communications. Interchanges occurring after the receipt
of initial proposals but before a proposal evaluation are still communications. But those
that occur after the evaluation are negotiations if they consist of bargaining. Without
bargaining they are just plain communications. Some communications that are negotiations
may become discussions if they occur after a competitive range is established and the
offerers are allowed to revise their proposals.
KOPD: That seems pretty simple.
Doc P: "Seems" is the operative word. For example, communications are
all interchanges that happened after a receipt of proposals between the government and an
offerer, including discussions conducted after the competitive range is established.
You would think that discussions could also occur before the competitive range is
established. But discussions are defined as negotiations that occur after the
establishment of a competitive range and may, at the contracting officer's discretion,
result in the offerer being allowed to revise its proposal.
So, to be a discussion, the exchange of information must be a negotiation, occur after
a competitive range is established, and result in the offerer being permitted to revise
its proposal. Negotiation, by definition, can begin after receipt and evaluation of
proposals from offerers.
Thus, negotiation (which is bargaining by definition) can take place without
discussions as long as the offerer isn't allowed to revise its proposal or the
negotiations occur before the competitive range is established. In this context,
bargaining includes persuasion, alteration of assumptions and positions, give-and-take,
and may apply to price, schedule, technical requirements, type of contract or other terms
of a proposed contract. Communication that does not involve bargaining cannot be a
KOPD: Didn't you just say the same thing twice?
Doc P: Hard to tell, isn't it?
KOPD: Let me see if I understand. The definitions say that if an interchange of
information takes place after receipt of proposals (communication) which allows one or
both parties to alter its or their assumptions or positions so as to reach congruency
(negotiation) but before the competitive range is established, then such communication is
not a discussion.
Doc P: That is what the definitions say.
KOPD: Let's suppose that offerer A had a glaring ambiguity in its proposal about
its past performance. The ambiguity was detected by offerer A after the proposal was
submitted but before the evaluation.
Under one reasonable interpretation, the proposal was bad; under the other equally
reasonable interpretation, it was excellent. Offerer A transmits information to the
government resolving the ambiguity in favor of the excellent result, which the government
uses to evaluate the proposal and resolve the ambiguity.
Have "discussions" happened?
Doc P: That depends on whether unilateral transmission of information equals
interchange, because the word "interchange" usually denotes putting two things
in place of each other.
Assuming interchange has happened, the next question is whether the information
interchange constitutes bargaining. If so, the question becomes whether the bargaining
occurred after evaluation no matter when the information was transmitted.
That would be the case if consideration of the information during evaluation was deemed
equivalent to interchange of information after it. The next question would be whether such
consideration would implicitly establish a competitive range of at least one, offerer A.
If so, does the government's use of the information to resolve the ambiguity in offerer
A's favor constitute a tacit recognition of the revision of offerer A's proposal? If so,
then there would appear to be discussions.
KOPD: What do the definitions say about that situation?
Doc P: The definitions speak for themselves. Now you're asking what the
definitions actually mean. Not my job. Ask your lawyer.
Bob Little, an attorney who has worked for the General Accounting Office and a
Washington law firm, teaches federal contract law.