Discussion Overview

Discussion Overview

The simple act of exchanging information with an offeror is a justifiable definition of “discussions”. FAR 15.306 (c) and (d) explains in detail that agencies shall evaluate all proposals in accordance with FAR 15.305 (a), and if discussions are to be conducted, establish the competitive range. Discussions are really designed to give the Government the ability to obtain the best value, based on the requirement and the evaluation factors set forth in the solicitation. FAR 15.306 (d) (2).

CASE STUDY: Industry News Marathon Medical Corp. vs. Manus

The Case Study is an example of how unequal discussions can lead to a protest. In this case study Marathon Medical Corp., B-408052 (June 4, 2014), the GAO addressed the unequal discussions and sustained the protest because of the evidence of the agency allowed the proposed awardee, but not the protester to submit the information that would have made a difference in which company would have received the award.

The solicitation in this procurement in this case study included a brand name or equal clause which permitted offerors to propose equal items. The solicitation required each offeror to clearly identify any offered equal items, and these items were to be evaluated for equality based on information furnished in the offer or other information reasonably available to the agency. The solicitation also stated that the offeror proposing an equal item must furnish as part of the bid, all descriptive material this includes cuts, illustrations, drawings or other information necessary for the purchasing activity to, determine if the product offered meets the prominent characteristics requirement, and with this the offerors were required to provide samples of certain components. The samples provided by the offerors were subject to evaluation to determine the offeror’s ability to provide the right type and number of components from the correct manufacturer. The offerors were required to identify and furnish

references; this includes contract information for three customers for which the offeror had provided the custom surgical packs described in the solicitation. The instructions for submitting samples informed

offerors that any equal products “shall clearly be identified in the proposal and shall fully satisfy the salient characteristics of the items listed by the Government.”

The company, Marathon, submitted the priced offer, but the company did not adhere to the instructions proposal and did not include the three required references. After the agency was able to evaluate the offer from Marathon and found the company to be ineligible for the award based on past performance factors. Marathon was found to be unacceptable because the company failed to provide the required references with the original proposal.