United States: What is Required for Discussions to Be Meaningful?

Last Updated: September 1 2014
Article by Michelle E. Litteken and Luke Levasseur

Editor's note: This is the second post in a series of posts focused on protest allegations related to discussions with offerors. The first post addressed differences between clarifications and discussions. Planned future posts will cover what qualifies as misleading discussions, what constitutes unequal discussions, and a round up of recent protests involving discussions.

A common bid protest allegation made by disappointed offerors is that the agency failed to engage in meaningful discussions. It's basic procurement law that, when an agency engages in discussions with offerors under FAR Part 15, the discussions must be meaningful. But what is required for discussions to be does "meaningful"? Because protesters frequently raise the meaningful discussions protest ground, contractors and their counsel should be familiar with agencies' discussions-related obligations and how GAO and the CFC approach protests challenges to the adequacy of discussions.

FAR 15.306, which provides for exchanges with offerors after receipt of proposals, does not specifically define "meaningful" in the context of discussions. Instead, the FAR states that an agency must discuss "deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond." GAO and the CFC have based their analyses of what discussions qualify as meaningful on this FAR provision. Issues that arise with respect to whether discussions were sufficiently meaningful include:

  • When is a weakness significant?
  • Do weaknesses that are discriminators have to be discussed?
  • How specific does the agency need to be?
  • Does an agency need to discuss a weakness if it first appears in an offeror's FPR?

Is the Weakness Significant?

Protesters often argue that the agency's failure to raise an issue identified during the evaluation of initial proposals violates the FAR. As noted above, the FAR only requires that deficiencies and significant weaknesses be discussed. Because there is no obligation to discuss garden-variety weaknesses within a proposal, a protest ground regarding the failure to discuss such issues (absent an unequal discussions issue) would be dead on arrival.

The FAR (15.001) defines a "weakness" as "a flaw in the proposal that increases the risk of unsuccessful contract performance." A weakness is "significant" when the concern "in the proposal is a flaw that appreciably increases the risk of unsuccessful contract performance." So the distinction between a weakness and a significant weakness turns on the judgment of whether there is an "appreciable" effect on the risk of unsuccessful contract performance.

As a general matter, the CFC and GAO will give deference to evaluators' determinations of whether a weakness is significant. That said, protesters can overcome the deference given to the agency—and GAO and the CFC will not accept the evaluator's characterizations—when the weakness had a clear impact on the rating being challenged.

Although convincing the CFC or GAO that an evaluator mischaracterized a concern with an appreciable impact as a garden-variety weakness isn't easy, it can be done. For example, in Trammel Crow Company, the protester asserted that the GSA's discussions were not meaningful because the offeror had not been informed that one of its proposed key personnel lacked the required years of experience and another lacked experience in federal buildings of a certain minimum size. Although the agency argued that discussions were not required because the weaknesses had not been deemed "significant," GAO sustained the protest because "it [was] clear that, under the agency's evaluation methodology for this subfactor, the weaknesses in fact were significant."

What about when a garden-variety weakness becomes a discriminator?

There are numerous bid protests in which offerors' proposals are closely matched and a weakness that was not discussed (or group of such weaknesses) becomes the discriminator. Substantial precedent makes clear that the fact that a weakness eventually becomes the deciding factor does not create an obligation to conduct discussions. For instance, in Gracon Corp., GAO explained:

An agency is not required to afford offerors all-encompassing discussions, or to discuss every aspect of a proposal that receives less than the maximum score, and is not required to advise an offeror of a minor weakness that is not considered significant, even where the weakness subsequently becomes a determinative factor in choosing between two closely ranked proposals. We review the discussions provided only to determine whether the agency pointed out weaknesses that, unless corrected, would prevent an offeror from having a reasonable chance for award.

Gracon had been rated "high quality" under the relevant subfactors and factor, but the awardee's proposal was better-rated—in part because of seven weakness assessed against Gracon. GAO disagreed that Gracon's weaknesses which became discriminators should have been discussed, finding that none of the problems constituted a significant weakness or deficiency—and the fact that they ultimately made the proposal less competitive was beside the point.

How much explanation is required from the Agency?

In cases in which there is no dispute about the significance of a weakness, the parties may disagree over whether the discussions directed the offeror to the area of its proposal needing improvement. The boilerplate legal concepts applied by the CFC and GAO are clear. An agency is not required to "spoon feed" offerors during discussions; instead, the agency is merely required to lead offerors into the areas of their proposals requiring amplification or correction. Consistent application of these rules can be tricky.

For example, in Omniplex World Services Corp., the protester argued that the three pricing-related communications it received from the agency did not meaningfully inform the offeror that its price was unreasonably high or unacceptable. In the communications, the agency informed Omniplex that the solicitation was revised in ways that should have significantly reduced the proposal price and directed the company to the changed solicitation areas. The CFC found that the agency adequately conveyed that it found Omniplex's proposed pricing to be a deficiency or significant weakness. The court acknowledged that the agency's "communications with Omniplex certainly could have been more forthcoming—especially given Omniplex's request for further guidance regarding its pricing proposal." But the protest was denied nonetheless because the agency had sufficiently informed the offeror of the proposal area in which problems were found.

GAO reached the opposite conclusion in a case involving similar communications with the offeror. During discussions in Sentrillion Corp., the agency informed the offeror that its proposal was deficient because it did not submit proof of a license or an application for a license, and it had submitted some expired licenses. But the agency failed to address the fact that the business licenses it submitted with its initial proposal were incomplete and not notarized. GAO sustained the protest, acknowledging that although an agency is not required to "spoon feed" an offeror and had addressed the licenses (and thus arguably led the offeror into the area), the discussions were inadequate because the agency failed to identify every significant weakness or deficiency.

What about proposal problems that result from changes introduced in the FPR?

A final "when are discussions required" issue arises at the end of the negotiations, when protesters sometimes allege that an agency should have reopened discussions to address a significant weakness or deficiency found by the evaluators late in the process, i.e., after submission of the FPR. In Geo Marine, Inc./Burns & McDonnell Engineering, Inc., the protester argued that the agency should have reopened discussions when the agency changed what had been a weakness to a significant weakness during the evaluation of its FPR. During discussions, the agency had raised the issue (location of wind turbine generators), and the offeror had made the decision to not change the location but instead to provide additional explanation of its design choice. The FPR explanation made matters worse, and GAO denied the protest, ruling that an agency is not required to reopen discussions when a significant weakness or deficiency is first introduced in a FPR. Numerous CFC and GAO decisions support this rule.

* * *

In sum, although the failure to engage in meaningful discussions is a common protest ground, there are nuances in the law that may add complexity to what seems like a familiar argument. Government contractors and their counsel should be aware of the requirements agencies are subject to and how the CFC and GAO approach issues related to meaningful discussions.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions