15.306 Exchanges with offerors after receipt

of proposals.

(a) Clarifications and award without discussions.

(1) Clarifications are limited exchanges, between the Government and offerors, that may occur when

award without discussions is contemplated.

(2) 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.

(3) Award may be made without discussions if the solicitation states that the Government intends to

evaluate proposals and make award without discussions. If the solicitation contains such a notice

and the Government determines it is necessary to conduct discussions, the rationale for doing so

shall be documented in the contract file (see the provision at 52.215-1) (10 U.S.C. 3303(a)(2) and 41

U.S.C. 3703(a)(2)).

(b) Communications with offerors before establishment of the competitive range. Communications

are exchanges, between the Government and offerors, after receipt of proposals, leading to

establishment of the competitive range. If a competitive range is to be established, these

communications-

(1) Shall be limited to the offerors described in paragraphs (b)(1)(i) and (b)(1)(ii) of this section and-

(i) Shall be held with offerors whose past performance information is the determining factor

preventing them from being placed within the competitive range. Such communications shall

address adverse past performance information to which an offeror has not had a prior opportunity to

respond; and

(ii) May only be held with those offerors (other than offerors under paragraph (b)(1)(i) of this

section) whose exclusion from, or inclusion in, the competitive range is uncertain;

(2) May be conducted to enhance Government understanding of proposals; allow reasonable

interpretation of the proposal; or facilitate the Government’s evaluation process. Such

communications shall not 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. Such

communications may be considered in rating proposals for the purpose of establishing the

competitive range;

(3) Are for the purpose of addressing issues that must be explored to determine whether a proposal

should be placed in the competitive range. Such communications shall not provide an opportunity for

the offeror to revise its proposal, but may address-

(i) Ambiguities in the proposal or other concerns (e.g., perceived deficiencies, weaknesses, errors,

omissions, or mistakes (see 14.407)); and

(ii) Information relating to relevant past performance; and
(4) Shall address adverse past performance information to which the offeror has not previously had

an opportunity to comment.

(c) Competitive range.

(1) Agencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be

conducted, establish the competitive range. Based on the ratings of each proposal against all

evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the

most highly rated proposals, unless the range is further reduced for purposes of efficiency pursuant

to paragraph (c)(2) of this section.

(2) After evaluating all proposals in accordance with 15.305(a) and paragraph (c)(1) of this section,

the contracting officer may determine that the number of most highly rated proposals that might

otherwise be included in the competitive range exceeds the number at which an efficient

competition can be conducted. Provided the solicitation notifies offerors that the competitive range

can be limited for purposes of efficiency (see 52.215-1(f)(4)), the contracting officer may limit the

number of proposals in the competitive range to the greatest number that will permit an efficient

competition among the most highly rated proposals (10 U.S.C. 3303 and 41 U.S.C.3703).

(3) If the contracting officer, after complying with paragraph (d)(3) of this section, decides that an

offeror’s proposal should no longer be included in the competitive range, the proposal shall be

eliminated from consideration for award. Written notice of this decision shall be provided to

unsuccessful offerors in accordance with 15.503.

(4) Offerors excluded or otherwise eliminated from the competitive range may request a debriefing

(see 15.505 and 15.506).

(d) Exchanges with offerors after establishment of the competitive range. Negotiations are

exchanges, in either a competitive or sole source environment, between the Government and

offerors, that are undertaken with the intent of allowing the offeror to revise its proposal. These

negotiations may include bargaining. Bargaining 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. When negotiations are conducted in a competitive acquisition,

they take place after establishment of the competitive range and are called discussions.

(1) Discussions are tailored to each offeror’s proposal, and must be conducted by the contracting

officer with each offeror within the competitive range.

(2) The primary objective of discussions is to maximize the Government’s ability to obtain best value,

based on the requirement and the evaluation factors set forth in the solicitation.

(3) At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section

and 15.307(a), indicate to, or discuss with, each offeror still being considered for award,

deficiencies, significant weaknesses, and adverse past performance information to which the offeror

has not yet had an opportunity to respond. The contracting officer also is 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. However, the contracting

officer is not required to discuss every area where the proposal could be improved. The scope and

extent of discussions are a matter of contracting officer judgment.

(4) In discussing other aspects of the proposal, the Government may, in situations where the

solicitation stated that evaluation credit would be given for technical solutions exceeding any
mandatory minimums, negotiate with offerors for increased performance beyond any mandatory

minimums, and the Government may suggest to offerors that have exceeded any mandatory

minimums (in ways that are not integral to the design), that their proposals would be more

competitive if the excesses were removed and the offered price decreased.

(5) If, after discussions have begun, an offeror originally in the competitive range is no longer

considered to be among the most highly rated offerors being considered for award, that offeror may

be eliminated from the competitive range whether or not all material aspects of the proposal have

been discussed, or whether or not the offeror has been afforded an opportunity to submit a proposal

revision (see 15.307(a) and 15.503(a)(1)).

(e) Limits on exchanges. Government personnel involved in the acquisition shall not engage in

conduct that-

(1) Favors one offeror over another;

(2) Reveals an offeror's technical solution, including—

(i)Unique technology;

(ii)Innovative and unique uses of commercial products or commercial services; or

(iii)Any information that would compromise an offeror's intellectual property to another offeror;

(3) Reveals an offeror’s price without that offeror’s permission. However, the contracting officer may

inform an offeror that its price is considered by the Government to be too high, or too low, and

reveal the results of the analysis supporting that conclusion. It is also permissible, at the

Government’s discretion, to indicate to all offerors the cost or price that the Government’s price

analysis, market research, and other reviews have identified as reasonable (41 U.S.C.2102 and

2107);

(4) Reveals the names of individuals providing reference information about an offeror’s past

performance; or

(5) Knowingly furnishes source selection information in violation of 3.104 and 41 U.S.C.2102 and

2107).

Parent topic: Subpart 15.3 - Source Selection