Andrew Shipley, Philip Beshara and Jessica Aldrich analyze the renewed discussion within the US Department of Defense regarding the limits on agency discretion with respect to discussions in an article published by Law360.
Excerpt: For the second time in recent weeks, the Court of Federal Claims issued a ruling that broke from U.S. Government Accountability Office precedent. In IAP Worldwide Services Inc. v. U.S., Judge Matthew H. Solomson faulted the U.S. Army for failing to conduct discussions in a billion-dollar procurement despite the default rule in favor of discussions created by U.S. Department of Defense regulations.[1]
Judge Solomson held that Section 215.306 of the Defense Federal Acquisition Regulation Supplement creates a regulatory presumption in favor of conducting discussions in acquisitions over $100 million by which U.S. Army evaluators failed to abide in assuming an unsuccessful offeror could not remedy deficiencies in its proposal.[2]
Just a few weeks earlier, in Golden IT LLC v. U.S.,[3] Judge Solomson criticized the GAO's precedent that offerors must advise procuring agencies of changes in key personnel arising prior to award, even if such changes occurred after final proposal submissions, stating that the GAO's rule was "without legal basis and 'unfair.'"
