When federal agencies communicate with offerors in a Federal Supply Schedule (FSS) procurement conducted under Federal Acquisition Regulation (FAR) Part 8, the exchanges must be fair and equitable, as with all other aspects of the procurement. While the requirements of contracting by negotiation in FAR Part 15 do not apply to procurements conducted under FAR Part 8, the Government Accountability Office (GAO) still looks to FAR Part 15 standards for guidance in determining whether post-proposal exchanges in a FAR Part 8 procurement were fair and equitable. In this regard, when conducting exchanges after the receipt of proposals in FAR Part 15 procurements, government acquisition personnel are prohibited from engaging in conduct favoring one offeror over another. In FAR Part 15 procurements, exchanges undertaken after the establishment of a competitive range with the intent of allowing offerors to revise their proposals are called discussions. Agencies must conduct discussions with all offerors in the competitive range. Meanwhile, in FAR Part 8 procurements, it is permissible to conduct post-proposal exchanges with only the best-suited contractor, even addressing technical or price issues, provided the solicitation advises all offerors of the agency’s intent to conduct such exchanges. Thus, GAO will not sustain post-award protests in such procurements that challenge an agency’s unilateral exchanges with the best-suited offeror to resolve any issues after the receipt of proposals.
In B-421792.5, a decision issued on April 11, 2025, the GAO denied a protest challenging an award under a FAR Part 8 procurement that alleged that it was unreasonable for the agency to conduct exchanges solely with the awardee. The Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS), issued the underlying request for quotation (RFQ) under FAR 8.405-3 for the acquisition of data and operational analytics related to the agency’s operations under the Affordable Care Act. The RFQ contemplated the issuance of a task order set-aside for small businesses, with evaluation conducted on a best-value basis. Notably, the RFQ advised offerors that once the government selected the best-suited or apparently successful offeror, it reserved the right to communicate only with that offeror to address any remaining issues, including technical and price matters, for the finalization of a task order with that offeror. Following receipt of quotations, the agency selected the best-suited offeror and conducted multiple rounds of exchanges with that offeror before awarding the task order. The protester filed a post-award protest, challenging the agency’s conduct regarding the exchanges. The protest alleged that such extensive exchanges could not reasonably be conducted with only the best-suited offeror, and asserted that the agency engaged in unequal and unfair discussions.
The GAO disagreed with the protester, noting that it had previously resolved protests involving FAR Part 8 solicitations with similar language that permitted the procuring agency to address any issues, including technical or price issues, with only the best-suited offeror. In those protests, the GAO concluded that it was proper and permissible for the agency to conduct exchanges in FAR Part 8 procurements with only the best-suited offeror when the solicitation expressly advised offerors of the agency’s intent to do so. Similar to those earlier protests, the RFQ in the procurement at issue here expressly stated that the government reserved the right to communicate only with the best-suited offeror to resolve any remaining issues, including technical and price issues. Therefore, it was reasonable for the agency to engage in post-proposal exchanges with only the eventual awardee. The GAO also rejected the protester’s argument that it was improper for the agency to conduct multiple rounds of exchanges with the awardee, as the RFQ did not place a limit on the number of rounds of exchanges. Ultimately, since the agency reasonably determined the best-suited offeror before conducting multiple rounds of exchanges with that offeror, it had made an award consistent with the terms of the solicitation. The GAO denied the protest after finding that the agency’s conduct of exchanges was reasonable and in accordance with the terms of the FAR Part 8 solicitation and procurement laws and regulations.
In procurements conducted under the General Services Administration (GSA) FSS program pursuant to FAR Part 8, agencies must ensure that communications with offerors are both fair and equitable. This requirement is applicable to exchanges conducted following the receipt of proposals, along with all other aspects of the procurement. If the solicitation expressly advises all prospective offerors of the government’s intent to do so, it is permissible for agencies to conduct exchanges with only the best-suited offeror, even when the exchanges pertain to technical or price factors. In FAR Part 8 procurements involving solicitations with such language, the GAO will not sustain protests challenging agency conduct of engaging in exchanges with only the best-suited offeror. Accordingly, it is vital that protesters focus on the solicitation language concerning potential post-proposal exchanges and their scope. Of course, protesters may still challenge the reasonableness of the agency decision in selecting a best-suited offeror in the first place. Contractors should also be mindful that post-award challenges to the scope of the language concerning the exchanges with only the best-suited vendors are typically considered untimely. This is because protests based upon alleged improprieties or patent ambiguities in a solicitation must be filed prior to the deadline for the receipt of the initial proposals. Consequently, rather than waiting for the agency to determine a best-suited offeror and potentially conducting exchanges with only that offeror, prospective offerors concerned about the scope of language relating to unilateral exchanges in FAR Part 8 procurements should seek to address the issue before submitting their proposals.
This Bid Protest Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.