Know the Language of Negotiating

The Federal Acquisition Regulations (FARs) explicitly define a series of terms that are relevant to your understanding of the Federal contracting and contract negotiation process.  Here’s a few that may be of value to you:

Clarifications –  The Government’s decision to award with or without discussions will dictate the type of communications that can take place.  If the solicitation states that the award will be made without discussions, the Government’s ability to communicate with offerors is limited, but not entirely precluded.  The Government may still request “clarifications” which FAR 15 describes as “limited exchanges “to clarify certain aspects of the proposal or to resolve minor or clerical errors.  Also, in the “without discussions” scenario, certain types of past performance inquiries are regarded as clarifications.  For instance, the Government will be able to ask offerors about relevant past performance information, or give the offeror the chance to explain adverse past performance information to which they have not had a previous opportunity to respond.  (See FAR 15.306)

Exchanges – These are communications that take place after receipt of proposals but before the establishment of the competitive range and allow the Government to engage in more substantive communications than clarifications.  In addition, FAR 15 limits these communications (before the competitive range determination) to certain parties and only for specific reasons primarily associated with resolution of ambiguities in the proposal or to address past performance information.  See FAR 15.306(b) for the details.

Discussions – These are negotiations in a competitive acquisition that begin after the competitive range determination and are typically associated with the offerors cost/price, technical approach, past performance, and terms and conditions.  Discussions are tailored to each proposal within the competitive range and allow the Government to assess individual proposal strengths and weaknesses.  See FAR 15.306(c) for more details.

Summary – Understand the language being used by the contracting officer in the negotiating process and understand the rules associated with each phase of the source selection process.

–Jim Dickensheets

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