Negotiations Under the RFO

Thank you for sharing this, and thank you for writing it, @Vern Edwards. This is a well-timed article for my agency, as our Director is insisting that we negotiate better terms across some of our largest and most complex contracts. I highlighted relevant portions of the article and shared with my colleagues and legal team.

One point that I'm not clear on is where Vern advises agencies to avoid the the negotiation of non-promissory language at pages 13-14 and 16:

It seems clear that promises, not mere information, should be the objects of negotiation. So to avoid needless wastes of time, contracting officers and other agency personnel must recognize and understand the distinction between two kinds of proposal content: offers (promises, i.e., commitments to act or refrain from acting in specified ways) and mere information (e.g., about experience, past performance, key personnel qualifications, tentative plans, etc.).

Contracting officers must understand the distinction between (a) offers—prospectively binding promises to act or refrain from acting in specified ways—and (b) qualification essays. The essays include only descriptive information, such as management plans, key personnel qualifications, and proposed technical “approaches” that will be used only to judge offerors’ “understanding” of the requirement and prospects for successful performance. Nonpromissory descriptive information is not appropriate matter for negotiation. Include a statement in the RFP to that effect.

If an agency requests both promissory and nonpromissory information within the proposal, evaluates both to assess proposal strength, and decides to hold negotiations, the agency must "at a minimum, indicate to, or negotiate with, each offeror any deficiencies or significant weaknesses in the proposal." RFO FAR 15.204-2(b)(1)(ii). Thus, if the nonpromissory information contains significant weaknesses or deficiencies, the agency must address it during negotiations, even if the reason for holding negotiations in the first place was to discuss promissory information.

If Vern had instead stated, "Agencies should avoid negotiating exclusively or primarily for the purpose of allowing offerors to remedy nonpromissory weaknesses," I would have agreed wholeheartedly. But I don't see how an agency can negotiate promissory information without also negotiating any nonpromissory significant weaknesses or deficiencies.