Because clarifications are to correct clerical, mathematical errors we opened discussions. The discussion questions are really getting clarification as to whether their proposals included specific items. We requested/received Yes or No answers. When opening discussions, do I need to have a Pre-negotiation position? We (in this case) don't have a "Negotiation position" as we are asking them to verify they've included something, and in a discussion environment, we aren't actually Negotiating. Also, do I need a Pre-Negotiation memo for discussions? Or is it ok to do a Pre/Post Memo/BCM and discuss the fact that we opened discussions, and in this case, no revised proposals were submitted or requested?
Q - When opening discussions, do I need to have a Pre-negotiation position?
Open full Question Details
A - No, the Government does not develop a pre-negotiation price position in a competitive environment. Note that FAR 15.405(a) states, “The purpose of performing cost or price analysis is to develop a negotiation position that permits the contracting officer and the offeror an opportunity to reach agreement on a fair and reasonable price.” That statement addresses sole source negotiations. In discussions, the contracting officer and the offeror do not reach agreement on a reasonable price. Since discussions are held in a competitive environment (see FAR 15.306(d)(1)), each offeror in the competitive range (the MAC contractors), would be asked to submit a final proposal revision (FAR 15.307(b)) at the conclusion of discussion – which is an opportunity for each to revise their offers. The “pressure” of competition following meaningful discussions should encourage a proposal that is the best value for the Government. Please note per FAR 15.306, award can be made without discussions.
Q - Do I need a Pre-Negotiation memo for discussions? Or is it ok to do a Pre/Post Memo/BCM and discuss the fact that we opened discussions, and in this case, no revised proposals were submitted or requested?
A – In accordance with your agency or contracting officer’s requirements, some form of documentation on the substance of discussions should be maintained in the contract file. Since FAR 15.306(d)(1) states that discussions are tailored to each offeror’s proposal, your file documentation could address the specific areas of discussions (FAR 15.306(d)(3)); who participated, etc., and state the common final proposal revision submittal date (FAR 15.307(b)). You could have both a pre- and post-discussions memorandum.