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FAR
35.106: Broad agency announcements |
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Comptroller
General - Key Excerpts |
It is true that in prior cases we have looked to FAR part 15 for
guidance in reviewing the agency’s conduct of discussions under a
BAA when an agency uses negotiated procedures as part of the
selection process, in which case the discussions must be
meaningful. See Interstate Elec. Corp., supra, at 11. Here,
however, the negotiations that occurred between Spaltudaq and the
agency were not part of the evaluation and selection process, but
occurred after the evaluation had been completed and Spaltudaq’s
proposal had been selected for award. As discussed more fully
below, by the BAA’s terms, the negotiations were not intended as
discussions as defined in FAR part 15. Thus, the requirement for
meaningful discussions as stated in FAR part 15, and in the cases
interpreting that part, does not apply.
That is not to say that the agency’s conduct of post-selection
negotiations under a BAA is not reviewable. Although we find that
DTRA had no obligation to follow the specific requirements for
discussions set forth in FAR Part 15, agencies may not conduct
themselves in an arbitrary manner, and they must negotiate in good
faith and in a manner consistent with the BAA. See Health Servs.
Mktg. & Dev. Corp., B‑241830, Mar. 5, 1991, 91-1 CPD para. 247 at
7. As explained below, we find that DTRA met this standard in
conducting negotiations with Spaltudaq.
As stated above, the BAA provided for post-selection negotiations
with firms that were selected for award. The BAA permitted the
agency to discontinue discussions if an offeror failed to provide
necessary information in a timely manner, or if the parties failed
to reach agreement on contract terms within a reasonable time.
Here, the record shows that over a 4-month period, the parties
engaged in good faith negotiations in an attempt to reach
agreement over the parties’ rights to intellectual property, but
that no agreement could be reached. The record shows that
Spaltudaq proposed a number of approaches that limited or
restricted the government’s rights, and the agency repeatedly
objected to these approaches. The agency articulated its “final
negotiation position” regarding intellectual property in its
August 7, 2008 letter and unambiguously stated that “the
Government is unwilling to consider” recent proposal changes that
would limit or restrict the government’s rights to data or
inventions. Despite this admonition, Spaltudaq responded with a
revised statement of work that included previously submitted
proposal revisions to restrict the intellectual property rights
granted to the agency. In our view, the agency reasonably
determined that the parties had failed to reach agreement within a
reasonable time, and the agency could discontinue negotiations on
this basis alone.
The protester contends that it was “misinformed” about the
agency’s intellectual property requirements, specifically with
regard to Spaltudaq’s I-STAR platform. The protester asserts that,
in revising the statement of work, it only intended to “clarif[y]”
that that developments and improvements to the I-STAR platform
would be excluded from the scope of work, as a result of
Spaltudaq’s belief that the agency was not interested in this
platform. Protester’s Comments at 2. The protester asserts that
the agency’s August 7, 2008 “final negotiation position” letter
did not prohibit the revisions that Spaltudaq proposed, and that
DTRA’s counsel “led Spaltudaq to believe that the proposed
clarification would not be objectionable, and would likely be
acceptable, to DTRA.” Id. at 10-11. However, the contemporaneous
record does not support Spaltudaq’s arguments.
While the record shows that there were several communications
between the agency’s counsel and Spaltudaq’s counsel concerning
the I-STAR platform and related work, the record does not evidence
that the agency or its counsel ever agreed to exclude from the
scope of work future developments and improvements to the I‑STAR
platform, or agreed to Spaltudaq’s proposed funding allocation
approach to exclude subject inventions. Even if the agency or its
counsel had indicated a willingness to consider such provisions,
DTRA’s August 7 letter made clear that such revisions would no
longer be considered. As stated above, the agency’s “final
negotiation position” was that the government “is unwilling to
consider [Spaltudaq’s] most recent proposal changes.” The fact
that Spaltudaq chose to ignore the agency’s warnings does not
require the agency to reopen negotiations here. (Spaltudaq
Corp., B-400650; B-400650.2, January 6, 2009) (pdf) |
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Comptroller
General - Listing of Decisions |
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For
the Government |
For
the Protester |
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Spaltudaq Corp., B-400650;
B-400650.2, January 6, 2009 (pdf) |
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Interstate
Electronics, B-286466, B-286466.2, January 12, 2001 |
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INRAD,
Inc., B-284021, February 4, 2000 |
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