Discussions with Only the "Best Suited Contractor" are Acceptable in Federal Supply Shcedule (FAR 8.4) Procurements

The Government Accountability Office (“GAO”) recently considered a solicitation for a Federal Supply Service procurement that permitted the agency to conduct exchanges (discussions) with only the vendor identified as “best-suited” (the apparently successful contractor).  The GAO denied the protest concluding that the challenge to the solicitation did not violate statute or regulation.  S2 Analytical Sols, LLC, B-422281.3, Dec. 20, 2024.

The Defense Information System Agency (“DISA”) issued a solicitation for technology architecture governance services.  The solicitation was issued pursuant to the General Services Administration’s Federal Supply Schedule (“FSS”) program under Federal Acquisition Regulation (“FAR”) Subpart 8.4,

The Request for Quotation (“RFQ”) stated as follows:

The government anticipates selecting the best suited contractor from initial responses, without engaging in exchanges with contractors…. Once the government determines the contractor that is best suited (i.e., the apparent successful contractor) the government reserves the right to communicate with only that contractor to address any remaining issues, if necessary and finalize a task order with that contractor.  These issues may include technical and price and can require revisions to either technical or price quotations.”

S2 protested that this language allowed the agency to hold exchanges with only one vendor and allowed that vendor to revise its quotation while not giving the same opportunity to other vendors.

The GAO examined this issue and noted that the language in FAR Subpart 8.4, under which the procurement was being conducted, was different from the language in FAR Part 15 (Contracting by Negotiation).  FAR Subpart 15.3 deals with discussions, and does not apply here which were being conducted under the FSS program. Indeed, the GAO held that the procedures of Part 15, including those concerning exchanges after receipt of proposals, do not government competitive procurements under the FSS program, and FAR 8.4 procurements.

In denying the protest, the GAO stated that agencies using Part 15 are permitted to establish a competitive range of one (i.e. the only one that is most highly rated) and conduct discussions with only that offeror, as long as other offerors are reasonably excluded.  GAO concluded that this solicitation was consistent with FAR subpart 8.4 procurements, and denied the protest.

Takeway: In FAR 8.4 procurements, such as those for the FSS program, the agency may hold discussions with only the best suited contractor.  This should be stated in the solicitation.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.