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COFC Opinion No. 09-271C Filed September 17, 2009 (Unisys Corporation Plaintiff, v. The United States, Defendant, Lockheed Martin Corporation, Defendant-Intervenor)

Link to the Case:  http://www.uscfc.uscourts.gov/sites/default/files/opinions/FIRESTONE.UNISYS091709.pdf

This is the case we often reference in our training regarding the inapplicability of FAR 15 discussions when conducting procurements utilizing FAR 8.4 procedures.


While this case involves a number of topics, we emphasize here that the act of “entering formal discussions IAW FAR 15.306” is inapplicable to the FSS program and should be avoided.  Take a look at a few excerpts from the case which emphasize this point:


1.  Page 30 quote: “While the communications between GSA and Lockheed about which Unisys complains may be considered “negotiations” under FAR 15.306(d) were that section to apply, that is not the issue. Rather, the issue is whether the language of RFQ Section 11.9.1 somehow invokes either of these FAR Part 15 sections. It does not. FAR 8.404(a) specifically states that FAR Part 15 does not apply to such procurements. Unisys’s attempt to turn this FSS procurement into a negotiated procurement under FAR Part 15 must be rejected.”  Here, the court emphasizes that FAR 15 is not applicable to procurements conducted under the FSS program.  


2.  Page 30 quote: “However, although FAR Part 15 does not apply, the court will review GSA’s actions to ensure that GSA did not violate the requirement of fundamental fairness in the procurement process by conducting discussions with Lockheed. Under the FAR, “all contractors and prospective contractors shall be treated fairly and impartially, but need not be treated the same.” FAR 1.102-2(c)(3), 48 C.F.R. § 102.2(c)(3) (2004). For the reasons set forth below, the court finds that the government did not violate this standard.”  It is important to note here, that while the court again stated FAR 15 is inapplicable to FSS procurements, it also emphasizes fairness. Although there is no requirement to “enter discussions” with all those who quoted, you must still use good business judgment when limiting communications and ensure adherence to the FAR 1.102-2(c)(3) requirement of fundamental fairness.   


For suggested RFQ language to avoid the term “discussions” see blog post Avoid FAR part 15 terminology, just say NO to “Discussions” and follow this suggested RFQ  language.


For an expanded discussion on ensuring you do not invoke FAR 15 procedures into your FSS procurements see  handout f-thinksimplified  in our training reference documents section.


Now that we have your attention, please remember that what you are reading here is a blog post on a social media site managed by GSA.  This is NOT a GSA policy site, nor is it intended to be.  If you don't see us citing a specific statute, regulation or policy in this post, you should assume all you are getting is our opinion as experienced contracting officers.  We are trying to share what we believe are best practices and generate discussion with other contracting professionals about their best practices.  You may feel like something you read on our site is a terrible idea or is inconsistent with your organization's policies, practices or even general approach to contract management.  That's good!  Let's talk about it.  Did we miss something?  Are we flat out wrong?  Alright, we don't claim to be all knowing or perfect.  Share your thoughts with us.  And, as always, we strongly encourage you to consult with your own policy staff and legal counsel before using our methods and practices.  Finally, and most importantly, have fun with your procurement, use your creativity and make smart business decisions!

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Author of this blog post: Brad deMers


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