Negotiated acquisitions

(51.) See, e.g., SOS Interpreting, Ltd., Comp. Gen. B-287477.2, May 16, 2001, 2001 CPD [paragraph] 84 (holding that the agency was not required to discuss price when it did not consider price to be a significant weakness).

(52.) At the time of the appeal, FAR section 15.306(d)(3) stated:

   The contracting officer shall ... discuss with, each offeror still
   being considered for award, significant weaknesses, deficiencies,
   and other aspects of its proposal (such as cost, price, technical
   approach, past performance, and terms and conditions) that could, in
   the opinion of the contracting officer, be altered or explained to
   enhance materially the proposal's potential for award. The scope and
   extent of discussions are a matter of contracting officer judgment.

GENERAL SERVS. ADMIN. ET AL., FEDERAL ACQUISITION REG. 15.306(d) (June 2001) [hereinafter 2001 FAR].

(53.) 279 F.3d 985 (Fed. Cir. 2002).

(54). Id. at 987.

(55). See JWK Int'l Corp. v. United States, 49 Fed. Cl. 364, 367 (2001).

(56). JWK, 279 F. 3d at 987-88.

(57). Id. at 988.

(58). Id.

(59.) Id. The CAFC added that to prevail in its bid protest, JWK had to show that the Navy's failure to conduct a cost discussion was a significant error that prejudiced award. Despite JWK's argument that had the contracting officer discussed price, it could have adjusted its proposal and offered a lower price, the CAFC again noted that cost was the least important criterion. The CAFC added that JWK's proposed costs were already lower than the awardee's and that the contracting officer had determined that LTM's superior non-cost ratings outweighed the slight cost difference between the two proposals. Id.

(60.) Federal Acquisition Regulation; Discussion Requirements, 66 Fed. Reg. 65,368 (Dec. 18, 2001) (codified at 48 C.F.R. pt. 15 (2002)); see Ralph C. Nash & John Cibinic, Postscript IV: Negotiation in a Competitive Situation, 16 NASH & CIBINIC REP. 2, [paragraph] 8 (2002) (providing a brief but "meaningful" discussion of the history of FAR section 15.306(d), GAO decisions concerning the scope of discussions, and the impact of the most recent change).

(61.) 66 Fed. Reg. at 65,368.

(62.) 2001 FAR, supra note 52, at 15.306(d)(3).

(63.) 66 Fed. Reg. at 65,368.

(64.) Comp. Gen. B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD [paragraph] 79.

(65.) Id. at 2.

(66.) Id. (quoting the Agency Report, Tab XIII, Source Selection Determination, at 2).

(67.) Id. at 5 (quoting the Agency Report, Tab XIII, Source Selection Determination, at 2).

(68.) Id.

(69.) Id. at 2.

(70.) Id. at 5.

(71.) Id. at 5 (citing Raytheon Co., Comp. Gen. B-261959.3, Jan. 23, 1996, 96-1 CPD [paragraph] 37, at 11).

(72.) Id. at 6. The NIAID argued that the Health and Human Services Acquisition Regulations, 48 C.F.R. [section] 315.670 (2002), permitted it to hold "limited negotiations" with the selected offeror. The GAO disagreed, finding that the regulation limited such negotiations "to matters that would have no impact on the award decision and which do not prejudice the competitive interests or the rights of other offerors," unlike the situation here. Priorities One Servs., 2002 CPD [paragraph] 79, at 6 n.8.