In its final unveiling, FAR Part 15 rewrite has some of this, that

Various drafts of the rewrite have been the subjects of prior columns, but now the
final version is here.

The most controversial aspect of the FAR 15 rewrite has been the effort to let agencies
narrow the competitive range. The final regulation reflects something of a compromise and
thus lacks clarity.

Contracting officers must no longer include borderline proposals. Instead, the
competitive range must now consist of "all of the most highly rated proposals."

That moderately certain standard is subject to two important exceptions. First, the
contracting officer can further restrict the competitive range in the interests of
efficient competition, if the solicitation warns offerers of the possibility. Second, an
agency can cast an offerer out of the competitive range during discussions, even if the
discussions have not addressed all material aspects of the proposal.

The two exceptions add significant questions that detract from the certainty of the
highly rated proposals test.

Another highlight of the new Part 15 is its use of past performance evaluation
criteria. The rewrite adds protections for offerers that find that negative past
performance ratings endanger their competitiveness. An agency cannot omit an offerer from
the competitive range unless it gives the offerer an opportunity to respond to the
negative ratings.

Moreover, even when an agency plans to make an award without discussions,
communications about past performance information are deemed permissible clarifications.

The rewritten FAR section also advises on using multistep procurements.

In this innovation, an agency can ask for preliminary information from offerers to
discourage those with poor prospects. Even if an agency tells a company that it is not a
viable competitor, the company can still submit a proposal.

Also as expected, Part 15 includes a new section on the exchange of information between
an agency and a prospective contractor. The new regulation promotes freer communication
between industry and government, especially during the preproposal stage.

Procurement veterans will have to learn some new definitions when it comes to terms
such as communications, discussions and clarifications. The rewrite gives terms a new
twist, and a new category joins them.

Basically, the rewrite expands clarifications from corrections of minor or clerical
errors to responding to past performance ratings.

In the new Part 15, communications occur between a vendor and an agency before the
establishment of the competitive range and assist in that process.

The rewrite defines discussions as negotiations in the context of a competitive
procurement. These can now include talks about contract requirements, such as clauses that
are not mandatory.

A potentially useful expansion of discussions includes notification by the government
that a vendor should expand a proposal beyond the minimum requirements.

Alternatively, the agency can suggest that an offer would be more competitive if it had
fewer extras and a lower price tag. Such notification is a useful antidote to the problem
of increasingly vague and uninformative evaluation criteria.

Joseph J. Petrillo is an attorney with the Washington law firm of Petrillo &
Associates. E-mail him at [email protected].

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