23 C.F.R. Subpart E—Discussions, Proposal Revisions and Source Selection
Title 23 - Highways
In a competitive acquisition, discussions may include bargaining. The term bargaining may include: 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. You should use discussions to maximize your ability to obtain the best value, based on the requirements and the evaluation factors set forth in the solicitation. Yes, in competitive acquisitions, the solicitation must notify offerors of your intent. You should either: (a) Notify offerors that discussions may or may not be held depending on the quality of the proposals received (except clarifications may be used as described in §636.401). Therefore, the offeror's initial proposal should contain the offeror's best terms from a cost or price and technical standpoint; or (b) Notify offerors of your intent to establish a competitive range and hold discussions. Yes, you may still elect to hold discussions when circumstances dictate, as long as the rationale for doing so is documented in the contract file. Such circumstances might include situations where all proposals received have deficiencies, when fair and reasonable prices are not offered, or when the cost or price offered is not affordable. Yes, if discussions are held, they must be conducted with all offerors in the competitive range. If you wish to hold discussions and do not formally establish a competitive range, then you must hold discussions with all responsive offerors. (a) Discussions should be tailored to each offeror's proposal. Discussions must cover significant weaknesses, deficiencies, and other aspects of a proposal (such as cost or price, technical approach, past performance, and terms and conditions) that could be altered or explained to enhance materially the proposal's potential for award. You may use your judgment in setting limits for the scope and extent of discussions. (b) In situations where the solicitation stated that evaluation credit would be given for technical solutions exceeding any mandatory minimums, you may hold discussions regarding increased performance beyond any mandatory minimums, and you 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. You may not engage in conduct that: (a) Favors one offeror over another; (b) Reveals an offeror's technical solution, including unique technology, innovative and unique uses of commercial items, or any information that would compromise an offeror's intellectual property to another offeror; (c) Reveals an offerors price without that offeror's permission; (d) Reveals the names of individuals providing reference information about an offeror's past performance; or (e) Knowingly furnish source selection information which could be in violation of State procurement integrity standards. You may inform an offeror that its price is considered to be too high, or too low, and reveal the results of the analysis supporting that conclusion. At your discretion, you may indicate to all offerors your estimated cost for the project. (a) Yes, you may request or allow proposal revisions to clarify and document understandings reached during discussions. At the conclusion of discussions, each offeror shall be given an opportunity to submit a final proposal revision. (b) You must establish a common cut-off date only for receipt of final proposal revisions. Requests for final proposal revisions shall advise offerors that the final proposal revisions shall be in writing and that the contracting agency intends to make award without obtaining further revisions. Yes, you may further narrow the competitive range if 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. You must provide an offeror excluded from the competitive range with a written determination and notice that proposal revisions will not be considered. Yes, but only at the conclusion of discussions will the offerors be requested to submit a final proposal revision, also called best and final offer (BAFO). Thus, regardless of the length or number of discussions, there will be only one request for a revised proposal (i.e., only one BAFO). (a) You must base the source selection decision on a comparative assessment of proposals against all selection criteria in the solicitation. While you may use reports and analyses prepared by others, the source selection decision shall represent your independent judgment. (b) The source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and tradeoffs made or relied on, including benefits associated with additional costs. Although the rationale for the selection decision must be documented, that documentation need not quantify the tradeoffs that led to the decision. Yes, after the source selection but prior to contract execution, you may conduct limited negotiations with the selected design-builder to clarify any remaining issues regarding scope, schedule, financing or any other information provided by that offeror. You must comply with the provisions of §636.507 in the exchange of this information. You may provide pre-award or post-award notifications in accordance with State approved procedures. If an offeror requests a debriefing, you may provide pre-award or post-award debriefings in accordance with State approved procedures.
Title 23: Highways
PART 636—DESIGN-BUILD CONTRACTING
Subpart E—Discussions, Proposal Revisions and Source Selection
§ 636.501 What issues may be addressed in discussions?
§ 636.502 Why should I use discussions?
§ 636.503 Must I notify offerors of my intent to use/not use discussions?
§ 636.504 If the solicitation indicated my intent was to award contract without discussions, but circumstances change, may I still hold discussions?
§ 636.505 Must a contracting agency establish a competitive range if it intends to have discussions with offerors?
§ 636.506 What issues must be covered in discussions?
§ 636.507 What subjects are prohibited in discussions, communications and clarifications with offerors?
§ 636.508 Can price or cost be an issue in discussions?
§ 636.509 Can offerors revise their proposals as a result of discussions?
§ 636.510 Can the competitive range be further defined once discussions have begun?
§ 636.511 Can there be more than one round of discussions?
§ 636.512 What is the basis for the source selection decision?
§ 636.513 Are limited negotiations allowed prior to contract execution?
§ 636.514 How may I provide notifications and debriefings?
