After setting a competitive range, conducting discussions and identifying the apparent awardee the applicable Davis Bacon wage decision changes, increasing the rate for a carpenter from $40.00/hour to $43.00/hour. The apparent awardee indicates that he must increase his proposed price to account for the revised DOL wage determination.
Question 1: Is it permissible under FAR 15.3 to allow the apparent awardee only to revise its price?
Question 2: If all contractors in the competitive range are given an opportunity to revise their prices, does this constitute discussions and must these discussions be "meaningful" as defined under FAR 15?
From the guidance found at Federal Acquisition Regulation (FAR) 52.2152-1 – Instructions to Offerors -- Competitive Acquisition, under (a) Definitions, a “Proposal revision” is a change to a proposal made after the solicitation closing date, at the request of or as allowed by a Contracting Officer as the result of negotiations.
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Additionally, FAR 15.306 (a)(1) – Exchanges with Offerors states "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."
The DoD Source Selections Procedures Guide, Section 3.3.1, further clarifies that when awarding without discussions, "offerors may be given a chance to clarify certain aspects of their proposal and to resolve minor clerical mistakes, but offerors are not given an opportunity to respond to any identified weaknesses or deficiencies or revise their proposals.
Additionally, FAR 15.306(d)(1) states “discussions are tailored to each offeror’s proposal, and must be conducted by the contracting officer with each offeror within the competitive range.”
In FAR 15.307(b), with regard to final proposal revisions, it states “at the conclusion of discussions, each offeror still in the competitive range shall be given an opportunity to submit a final proposal revision.”
Also, see FAR 22.404-5(c)(3), which states when an agency receives a wage modification prior to contract award:
(3) If the new determination changes any wage rates, the contracting officer shall amend the solicitation to incorporate the new determination, and furnish the wage rate information to all prospective offerors that were sent a solicitation if the closing date for receipt of proposals has not yet occurred, or to all offerors that submitted proposals if the closing date has passed. All offerors to whom wage rate information has been furnished shall be given reasonable opportunity to amend their proposals.
Based on the information you provided, follow the guidance provided in the references above. In order to award without discussions, the contracting officer is NOT allowed to request or allow any of the offerors to submit proposal revisions (including any revision to their proposed prices). Under FAR 22.404-5(c)(3) and 22.404-6(c)(2), an agency is required to amend the RFP to incorporate increases in the Davis-Bacon Act wages and provide offerors an opportunity to submit revised proposals. The FAR provides that, in negotiated procurements, if the agency receives a wage modification before contract award, as appears to be the case for your procurement, the contracting officer shall follow the procedures in FAR 22.404-5(c)(3) and (4). Therefore, the appropriate next step is to amend the solicitation and obtained revised proposals, as required by the FAR, since you received a revised Davis-Bacon Act wage determination prior to award. Also, see M.E.E., Inc.--Recon. File: B-265605.5 Date: May 29, 1996, which is a case similar to your situation.
As far as your other questions are concerned, final proposal revisions can only be requested after discussions have concluded in accordance with FAR 15.307. In order to hold discussions, the contracting officer must establish a competitive range of the most highly rated proposals and conduct meaningful discussions with every offeror in the competitive range. Per FAR 15.306(d)(3), for discussions to be meaningful, at a minimum, 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. If each offeror still in the competitive range was provided an opportunity in the initial round of discussions to address any deficiencies, significant weaknesses and adverse past performance, then meaningful discussions were held. The FAR allows the Contracting Officer to reopen and conduct a second round of discussions. Since meaningful discussions were held in the initial round, a second round of discussions could be held to simply notify the offerors still in the competitive range of the new wage determination and to give them an the opportunity to submit final proposal revisions as a result. The second round of discussions should go fairly quickly. Whatever you decide, the bottom line is to be fair and consistent with ALL of the offerors. From a reasonable person’s perspective, the action taken by the contracting officer must NOT give, or appear to give, the apparent low offeror an advantage over the other offerors to the extent one or more of the other offerors were, or may have appeared to be, disadvantaged from winning the contract.