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Exchanges on TAA Compliance Were Not Discussions

The government's exchanges with an offeror concerning Trade Agreements Act compliance were not improper, according to the Court of Federal Claims, because they did not constitute discussions or prejudice the protester. The solicitation for a nationwide office supplies contract, which was not subject to the Federal Acquisition Regulation, required offerors to identify whether their products were TAA-compliant. In the "TAA Compliant" column in its initial price schedules, the awardee marked "TBD" next to some of the items. A contracting specialist contacted the awardee by e-mail and told it he needed to know which of its products complied with the TAA. In response, the awardee made 21 changes to the TAA compliance data in its price schedules, and it received a high score under the statutory compliance component of the technical approach subfactor. According to the protester, the exchanges constituted improper discussions.


However, the updated TAA data could not have affected the technical evaluation, because it was included with the price proposal, which was not provided to the technical evaluators. Further, the updates resolved an ambiguity in the awardee's price proposal, so they constituted clarifications under the procuring agency's acquisition manual, and they did not provide an advantage to the awardee over the other offerors. Even if the updates "strained the bounds" of the manual's definition of clarifications, they "fell far short" of its definition of discussions. According to the manual, discussions are only triggered by a competitive range determination, and they involve negotiations with all competitive range offerors. Here, there was no evidence of a competitive range determination or negotiations between the awardee and the government. Finally, the protester could not show it was prejudiced by the government's solicitation of the updates. Although the government compiled a comparative chart showing the number of non-compliant items offered by the protester, the awardee, and a third offeror, the protester was eliminated from consideration before the government actually conducted a comparative analysis of the items. (Office Depot, Inc. v. U.S., et al., FedCl, 54 CCF 79,421)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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