If the agency decides to award the contract after holding discussions, it must hold discussions “with all responsible offerors who submit proposals within the competitive range.” 41 U.S.C. § 253b(d)(1)(A) (2000); 10 U.S.C. § 2305(b)(4)(A)(i) (2000). However, the agency may hold “discussions conducted for the purpose of minor clarification” with one or more offerors. 41 U.S.C. § 253b(d)(1)(B) (2000); 10 U.S.C. § 2305(b)(4)(A) (ii) (2000). The procurement regulations define “clarifications” as “limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.” 48 C.F.R. § 15.306(a)(1) (2002).

…

The purpose of the rule that the government may not hold discussions with only one bidder is “to prevent a bidder from gaining an unfair advantage over its competitors by making its bid more favorable to the government in a context where the other bidders have no opportunity to do so. The government contends that the [communications] in question did not constitute discussions, but rather were “clarifications.”

In order to construe the meaning of the terms “discussion” and “minor clarification” in the statute, we begin with an analysis of the language of the statute itself. If the statutory language is plain and unambiguous, then it controls, and we may not look to the agency regulation for further guidance. Because neither 41 U.S.C. § 253b nor 10 U.S.C. § 2305 defines the terms “minor clarification” or “discussion,” we assume that the terms have their ordinary, established meaning, for which we may consult dictionaries. The relevant dictionary definitions are as follows. “Discussion” is defined as, “consideration of a question in open usu. informal debate: argument for the sake of arriving at truth or clearing up difficulties.” Webster’s 3d International Dictionary 648 (1968) (“Webster’s”). Webster’s defines “to clarify” in the relevant sense alternatively as, “to free (the mind or understanding) of confusion, doubt, or uncertainty”; “to explain clearly: make understandable”; and “to make less complex or less ambiguous: put in order.” Id. at 415. Webster’s defines “minor” in the relevant sense alternatively as, “1 a: inferior in importance: comparatively unimportant: lower in standing or reputation than others of the same kind….b: being the less important of two things.” Id. at 1439.

Although these definitions make clear that “discussions” are more substantial communications than “minor clarifications,” none of these various definitions serves to illuminate with any precision which specific exchanges of information constitute “discussions,” and which exchanges constitute “minor clarifications.” “The existence of alternative dictionary definitions of [a term],” or the failure of dictionary definitions to provide a plain and unambiguous meaning of statutory language, “indicates that the statute is open to interpretation….” In such a case, we must defer to a properly promulgated regulation, if it is “based on a permissible construction of the statute.”

…

Under the new regulation, 48 C.F.R. § 15.306, “clarifications” are defined as “limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.” 48 C.F.R. § 15.306(a) (2002). The regulation further provides examples of clarifications:

If award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.

48 C.F.R. § 15.306(a)(2) (2002) (emphasis added).

In contrast, under the regulation, “discussions” involve “negotiations”: “When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions.” 48 C.F.R. § 15.306(d) (2002). Because discussions involve negotiations, they may include “bargaining,” which “includes persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract.” Id. And unlike clarifications, discussions “are undertaken with the intent of allowing the offeror to revise its proposal.” Id. Also unlike clarifications, discussions take place after the government has established a “competitive range” of the most highly rated proposals. 48 C.F.R. § 15.306(c) (2002). Discussions need only be held with each offeror within the competitive range. 48 C.F.R. § 15.306(d)(1) (2002).

The stated purpose of the 1997 amendments to section 15 of the regulations was to “provide for empowerment and flexibility” and “shift from rigid rules to guiding principles.” 62 Fed. Reg. 51,225 (Sept. 30, 1997). Specifically, the new regulations were intended to “[s]upport [] more open exchanges between the Government and industry, allowing industry to better understand the requirement [sic] and the Government to better understand industry proposals.” Id. at 51,224. The order adopting the new regulations stated that: We drafted the rule to allow as much free exchange of information between offerors and the Government as possible, while still permitting award without discussions and complying with applicable statutes…. This policy is expected to help offerors, especially small entities that may not be familiar with proposal preparation, by permitting easy clarification of limited aspects of their proposals.

…

Thus, the definition of “clarifications” was significantly broadened. Rather than being “for the sole purpose of eliminating minor irregularities, informalities, or apparent clerical mistakes,” clarifications now provide offerors “the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond)….” Compare 48 C.F.R. § 15.601 (1991), with 48 C.F.R. § 15.306(a)(2) (2002).

…

We reject appellant’s argument that the [communications] could not be clarifications because they “requested additional information.” Any meaningful clarification would require the provision of information, and the example of a clarification given in the regulation, “the relevance of an offeror’s past performance information,” requires the provision of information. Id. The appellant also contends that a clarification cannot call for new information if the information is “necessary to evaluate the proposal.” There is no requirement in the regulation that a clarification not be essential for evaluation of the proposal. As one commentary has observed, under the new regulations, “‘clarifications’ by one offeror could lead to an increase in its past performance score or perhaps tilt the award in its favor.” Appellant’s cramped conception of “clarification” is, moreover, not in harmony with the stated purpose of the 1997 amendments, which was to “[s]upport [] more open exchanges between the Government and industry, allowing industry to better understand the requirement [sic] and the Government to better understand industry proposals.”

Even were the regulations not clear, we give deference to an agency’s permissible interpretation of its own regulations. The agency designated the [communications] as “FAR 13.306(a) clarifications” and included the notice, “[p]lease note that this clarification does not constitute oral discussions with the offeror.” It was a reasonable interpretation of the acquisition regulations to view the [communications] as clarifications, and we defer to that interpretation. We recently emphasized that “the [acquisition] regulations entrust the contracting officer with especially great discretion, extending even to his application of procurement regulations.” Am. Tel. & Tel. Co. v. United States, 307 F.3d 1374, 1379 (Fed. Cir.2002). The appellant here has not shown that the contracting officer misconstrued the regulations or that the procurement was not in accordance with the law.

Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312 (Fed. Cir. 2003).

In concluding that [the agency] engaged only in seeking “clarifications” from [the awardee], the court also notes that [the agency] is entitled to deference with regard to its characterization of its communications. Here [the agency] repeatedly noted in its letter to [the awardee] that it sought “clarifications” and at no point used the word “discussion.” Indeed, as discussed above, the “term ‘discussion’ has a specific legal definition: discussions involve negotiations and are undertaken with the intent of allowing the offeror to revise its proposal.” Galen Medical Assocs. Inc. v. United States, 369 F.3d 1324, 1332 (Fed. Cir. 2004) (internal quotations and citations omitted). There is no evidence on the record to suggest that any negotiations took place. Most importantly, there is no evidence on the record to suggest that [the awardee] was given the opportunity to revise its proposal….The narrow communication as to the offered warranty period does not amount to a revision.

G4S Technologyh CW LLC v. United States, 109 Fed. Cl. 708 (2013).

[The protester’s] argument appears to be that whatever leeway was afforded by the FAR Part 15 rewrite, it was abused in this case because the offerors were invited to respond to the [evaluation notices] with “additional” information, rather than “clarifications” within the definition of FAR 15.306(a). The court agrees that the text of the broadest of the [evaluation notices] by its terms seeks “additional” information. The court does not, however, agree that the fact that additional information about past performance was requested of [the awardee] requires the court to conclude either that discussions were in fact conducted or that the procurement was otherwise illegal or prejudicially unfair to [the protester].

Info. Tech. & Applications Corp. v. United States, 51 Fed. Cl. 340 (2001).

…FAR § 15.306 describes a spectrum of exchanges that may take place between a contracting agency and an offeror during negotiated procurements. Clarifications are limited exchanges between the agency and offerors that may occur when contract award without discussions is contemplated; an agency may, but is not required to, engage in clarifications that give offerors an opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. FAR § 15.306(a).

By contrast, discussions—which are to occur after establishment of the competitive range—involve the agency indicating to each offeror the significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to materially enhance the proposal’s potential for award. FAR § 15.306(d)(3). Although agencies have broad discretion as to whether to seek clarifications from offerors, offerors have no automatic right to clarifications regarding proposals and such communications cannot be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal….

FPM Remediations, Inc., B-407933.2, April 22, 2013.

If an agency holds or reopens discussions with one offeror, it must hold discussions with all offerors whose proposals are in the competitive range. Federal Acquisition Regulation (FAR) § 15.306(d)(1). Clarifications, however, are limited exchanges that agencies may conduct to allow offerors to clarify certain aspects of their proposals or to resolve minor or clerical mistakes. FAR §15.306(a)(2). An agency may allow an offeror to correct a mistake or clerical error in a cost proposal through clarifications (as opposed to discussions); both the existence of the mistake or clerical error and the amount intended by the offeror must be apparent from the face of the offer. Requesting clarification from one offeror does not trigger a requirement that the agency seek clarification from other offerors.

CH2M Hill Antarctic Support, Inc., B-406325, B-406325.2, B-406325.3, April 18, 2012.

In situations where there is a dispute regarding whether exchanges between an agency and an offeror constituted discussions, the acid test is whether an offeror has been afforded an opportunity to revise or modify its proposal. Communications that do not permit an offeror to revise or modify its proposal, but rather permit the offeror to explain or clarify what the offeror has already proposed to do, are clarifications and not discussions.

Booz Allen Hamilton, Inc., B-405993, B-405993.2, Jan. 19, 2012.

Clarifications are “limited exchanges” that agencies may use to allow offerors to clarify certain aspects of their proposals or to resolve minor or clerical mistakes. Federal Acquisition Regulation § 15.306(a)(2). Agencies are not required to request clarifications in the context of an award, such as the one here, made without discussions. Id. § 15.306(a) (1). [The protester’s] proposal was deemed unacceptable. Providing [the protester] with an opportunity to correct the weaknesses would constitute discussions, not clarifications, because it would involve the submission of information necessary to make the proposal acceptable.

Analytic Services, Inc., B-405737, Dec. 28, 2011.

An agency’s intent with regard to discussions is required to be expressed in the solicitation. Specifically, under the Competition in Contracting Act (CICA), 10 U.S.C. § 2305(a)(2)(A) (ii)(I) (2006), solicitations in negotiated acquisitions are required to include:

This provision is implemented by Federal Acquisition Regulation (FAR) § 15.209(a), which requires RFPs to include the clause at FAR § 52.215-1(f)(4) if the agency intends to make award without discussions, or the clause at FAR § 52.215-1 alternate 1, if the agency intends to make award after discussions.

…

First, contrary to [the protester’s] position, there is no basis for finding that the agency was required to conduct discussions given the RFP’s silence on the point. In this regard, [the protester] cites no statutory or regulatory provision—and we are aware of none—establishing such a default rule.

Further, in the absence of either of the specified clauses, the RFP was patently ambiguous as to whether discussions were contemplated. Under our Bid Protest Regulations, 4 C.F.R. § 21.2(a)(1) (2010), protests based on improprieties apparent on the face of a solicitation must be filed prior to the deadline for submitting proposals. Here, it was apparent that the RFP did not include one of the two alternate clauses required to be included in an RFP to advise offerors of the agency’s intention regarding discussions; as a result, it was unclear whether the agency would conduct discussions. This being the case, any question regarding the agency’s obligation to conduct discussions—including [the protester’s] assertion that discussions were required—had to be raised, if at all, prior to the closing time for receipt of initial proposals. Since [the protester] did not protest prior to the closing time, its assertion that the agency was required to engage in discussions is untimely, and will not be considered.

Kiewit Louisiana Company, B-403736, Oct. 14, 2010.

By affording [the awardee] an opportunity to remove the [disqualifying] clause from its quotation, the agency essentially allowed [the awardee] to make its unacceptable quotation acceptable. This unquestionably constituted a material revision to the quotation and, therefore, discussions. Since discussions with [the awardee] occurred, the agency was obliged to afford [the protester] a similar opportunity to participate in discussions.

The Analysis Group, LLC, B-401726, B-401726.2, Nov. 13, 2009.

[W]e agree with the [agency] that it was proper to allow [the awardee] to correct the missing affirmation of its ORCA entries through a clarification. Offerors may be given the opportunity to clarify certain aspects of proposals without holding discussions. FAR § 15.306(a). Specifically, an agency may allow an offeror to correct missing representations and certifications through clarifications, and does not hold discussions by doing so. Accordingly, the [agency] did not hold discussions with [the awardee], and was not required to hold discussions with [the protester].

Kuhana-Spectrum Joint Venture, LLC, B-400803, B-400803.2, Jan. 29, 2009.

[The Protester] contends that the agency acted unreasonably by not allowing it to correct… its proposal through clarifications since it had allowed other offerors to clarify certain aspects of their price proposals. An agency, however, generally has the discretion to decline to seek clarifications from an offeror, even where the agency has engaged in clarifications with other offerors.

While we recognize that there may be a rare situation where it would be unfair to request clarification from one offeror but not from another, the mere fact that an agency requests clarification from one offeror and not another, does not constitute unfair treatment. As a consequence, [the protester] has not established that the agency acted improperly or in contravention of the FAR by not seeking to clarify the acceptance period of [the protester’s] proposals.

INDUS Technology, Inc., B-297800.13, June 25, 2007.

We also note that regardless of when [the protester] had sufficient knowledge to challenge the exchange between [the awardee] and [the agency], our Office has already decided that this dialogue was about the capacity of the [awardee’s] dredge to perform at the production rate offered. Since agencies may only award contracts to responsible offerors, see Federal Acquisition Regulation (FAR) Sec. 9.103, the [agency] was required to make this effort to determine whether Great Lakes could perform as required. whether the bidder’s equipment has the capacity claimed—and here that question was raised by [the protester]—the use of reports, analyses and supplemental information is not only appropriate, but is expressly anticipated by FAR Sec. 9.105-1.

By concluding in our prior decision that the information provided on the equipment schedule pertained to a bidder’s responsibility, not bid responsiveness, we also effectively resolved the issue of whether the [agency] engaged in impermissible discussions with only one offeror. In our view, the exchanges [the protester] claims were improper discussions were, in fact, appropriate and reasonable attempts to address agency concerns about [the awardee’s] ability to perform. Therefore, whether or not [the protester] raised a timely challenge to the alleged discussions, [the protester’s] claim that the agency engaged in impermissible discussions has no merit.

Luhr Brothers, Inc., B-228423.2, Nov. 9, 1992.

The government, when conducting discussions with offerors in the competitive range, may not “engage in conduct that… [f]avors one offeror over another.” 48 C.F.R. § 15.306(e) (2008). This regulation does not permit a procuring agency to engage in unequal discussions, where a crucial and advantageous piece of information is withheld from some but not all offerors remaining in the competition. Nonetheless, “agencies are not required to conduct identical discussions with each offeror.”

Rather, the procuring agency should tailor discussions to each offeror’s proposal.

Kerr Contractors, Inc. v. United States, 89 Fed. Cl. 312 (2009).

The Federal Acquisition Regulation (FAR) requires that when conducting discussions pursuant to FAR part 15, contracting officers must raise with each offeror proposal deficiencies and significant weaknesses; contracting officers are also “encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award.” FAR § 15.306(d)(3). During discussions, agencies may not consciously mislead or coerce an offeror into raising its prices. However, we will not find coercion in discussions where an agency in good faith provides accurate information to an offeror, even where the offeror uses that information to its ultimate competitive detriment.

…

As GAO has long made clear, it will not sustain a protest where, as here, an agency has treated offerors equally by providing them with the same information during discussions, and where the protester responds by increasing its proposed price primarily for reasons within its business judgment].

Walsh Investors, LLC, B-407717, B-407717.2, Jan. 28, 2013.

In conducting exchanges with offerors, agency personnel also may not “engage in conduct that…favors one offeror over another,” Federal Acquisition Regulation (FAR) § 15.306(e) (1); in particular, agencies may not engage in what amounts to disparate treatment of the competing offerors. Although discussions may not be conducted in a manner that favors one offeror over another, discussions need not be identical among offerors; rather, discussions are to be tailored to each offeror’s proposal. FAR § 15.306(d)(1), (e)(1).

…

In a negotiated procurement where the agency conducts discussions, those discussions must be meaningful—that is, they must be sufficiently detailed so as to lead the offeror into the areas of its proposal requiring amplification or revision.

…

An agency may not mislead an offeror—through the framing of a discussion question or a response to a question—into responding in a manner that does not address the agency’s concerns, or misinform the offeror concerning a problem with its proposal or about the government’s requirements. In the context of discussions relating to cost or price, an agency may not coerce or mislead an offeror during discussions into raising its prices.

…

The FAR requires that when an agency conducts discussions with one offeror, it must conduct discussions with all offerors whose proposals are determined to be in the competitive range, and it must then allow them to submit revised proposals. FAR §§ 15.306(d)(1), 15.307(b)… In the context of discussions, the FAR specifically prohibits agency conduct that favors one offeror over another. FAR § 15.306(e)(1).

Metropolitan Interpreters and Translators, Inc., B-403912.4 et al., May 31, 2011.

[D]iscussions occur where a firm is afforded an opportunity to make material revisions to its quote or proposal. It is axiomatic that, if a concern makes a revision to its quote or proposal that has the effect of converting it from one that is unacceptable to one that is acceptable and eligible for award, the revision is material and discussions have occurred. Id.

…

[T]he record shows that the agency afforded only two of the three competitors an opportunity to revise their quotes. Under such circumstances, in order to treat all of the competitors equally, the agency was obligated to afford the protester an opportunity to revise its quote as well.

Standard Communications, Inc., B-406021, Jan. 24, 2012.

Where an agency holds exchanges with an offeror regarding the offeror’s plan to mitigate identified conflicts of interest, we have held that such exchanges do not constitute discussions and, as a consequence, they do not trigger the requirement to hold discussions with other offerors. Rather, such exchanges are more closely related to matters concerning the offeror’s responsibility.

Cahaba Safeguard Administrators, LLC, B-401842.2, Jan. 25, 2010.

The scope and extent of discussions with offerors in the competitive range are a matter of the contracting officer’s judgment. FAR § 15.306(d)(3). Although discussions may not be conducted in a manner that favors one offeror over another, FAR § 15.306(e)(1) and offerors must be given an equal opportunity to revise their proposals, discussions need not be identical among offerors; rather, discussions are to be tailored to each offeror’s proposal. FAR §§ 15.306(d)(1), (e)(1).

M. Matt Durand, LLC, B-401793, Nov. 23, 2009.

An agency fails to conduct meaningful discussions where it fails to apprise an offeror that its prices were viewed as unreasonably high.

Gas Turbine Engines, Inc., B-401868.2, Dec. 14, 2009.

[D]iscussions, at a minimum, must be in sufficient detail to indicate to each offeror whose proposal remains in the competitive range deficiencies, significant weaknesses, or adverse past performance information to which the offeror has not yet had an opportunity to respond. FAR § 15.306(d)(3). At the conclusion of discussions, each offeror still in the competitive range shall be provided an opportunity to submit a final proposal revision. FAR § 15.307(b). In this regard, offerors, in response to an agency request that discussions be opened or reopened, generally may revise any aspect of their proposals they see fit—including portions of their proposals which were not the subject of discussions.

…

In sum, the agency’s limitation of discussions here was inappropriate and resulted in the discussions being unfair and not meaningful…. The possibility that the contract may not have been awarded based on the most advantageous proposal because, for example, discussions are not meaningful, has a more harmful effect on the integrity of the competitive procurement system than the fear of an auction; generally the statutory requirements for competition take priority over any possible concern regarding auction techniques.

American K-9 Detection Services, Inc., B-400464.6, May 5, 2009.

[A]gencies are not required to afford offerors all encompassing discussions or to discuss every aspect of a proposal that receives less than the maximum score, and are 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. Agencies also need not afford an offeror additional opportunities to cure a weakness that remains in its proposal after it was brought to the offeror’s attention during previous discussions.

International Business & Technical Consultants, Inc., B-310424.2, B-310424.3, B-310424.4, Sept. 23, 2008.

Agencies are not required to “spoon-feed” an offeror during discussions. Rather, discussions must be meaningful; that is, discussions may not mislead offerors and must identify deficiencies and significant weaknesses in each offeror’s proposal that could reasonably be addressed in a manner to materially enhance the offeror’s potential for receiving award.

General Injectables & Vaccines, Inc., B-298590, B-298590.2, B-298590.3, Nov. 15, 2006.

We agree with [the protester] that the agency engaged in impermissible discussions. Discussions must be meaningful, equitable, and not misleading. While the agency and intervenor are correct that there is nothing inherently improper in an agency’s conducting additional discussions relating to previously-discussed issues with only one or a limited number of offerors where the agency has remaining concerns relating to those issues, agencies may not engage in what amounts to disparate treatment of the competing offerors. Thus, where an agency conducts multiple rounds of discussions relating to the same issues with one offeror, it must afford other similarly-situated offerors the same benefit of additional discussions.

Front Line Apparel Group, B-295989, June 1, 2005.

Our Office will review task order competitions to ensure that the competition is conducted in accordance with the solicitation and applicable procurement laws and regulations. In this regard, FAR § 16.505 does not establish specific requirements for discussions in a task order competition; exchanges in that context, like other aspects of such a procurement, must be fair. Generally, discussions, when conducted under FAR Part 15, must address deficiencies and significant weaknesses identified in proposals, however, the precise content of discussions is largely a matter of the contracting officer’s judgment. See FAR § 15.306(d)(3). While offerors must be given an equal opportunity to revise their proposals, and the Federal Acquisition Regulation (FAR) prohibits favoring one offeror over another, discussions need not be identical; rather, discussions must be tailored to each offeror’s proposal. FAR §§ 15.306(d)(1), (e)(1).

General Dynamics Information Technology, Inc., B-406059.2, March 30, 2012.

When an agency engages in discussions with an offeror, the discussions must be meaningful, that is, they must lead the offeror into the areas of its proposal that require correction or amplification. However, an agency is not obligated to reopen negotiations to give an offeror the opportunity to remedy a defect that first appears in a revised proposal.

Sabre Systems, Inc., B-402040.2, B-402040.3, June 1, 2010.

This protest is illustrative of one of the challenges an agency faces when, for whatever reason (but here in taking corrective action in response to a previous protest), the agency reevaluates proposals after discussions are complete. In this regard, we have held that where an agency, during a reevaluation of proposals, identifies new concerns in a proposal and those concerns would have had to be raised had they been identified before discussions were held, the agency is required to reopen discussions and raise the new concerns with the offeror.

Ewing Construction Co., Inc., B-401887.3, B-401887.4, April 26, 2010.