We Need to Talk: Court Cases Overturn High Value Defense Procurements Over Failure to Hold Discussions

Once again, in the third such decision in fewer than two years, the US Court of Federal Claims (CFC) in January issued a decision granting a protest of, and thereby upending, a major Department of Defense (DoD) award decision on the basis that the procuring officials failed to conduct discussions in a high value defense procurement.

Specifically, the court found that the agency had run afoul of DFARS 215.306, which directs that contracting officers should conduct discussions for procurements valued over $100 million. While this provision seems to have had little or no impact on DoD’s procurement practices for nearly a decade after it was enacted in 2011, the three recent CFC decisions depart significantly from the approach taken by the Government Accountability Office (GAO) and raise continuing questions as to the requirements for holding discussions going forward. It remains unclear, for example, on what basis the DoD might justify not holding discussions in these procurements, whether not doing so might constitute harmless error in some instances, and whether the FAR 15.306(c) and (d) procedures on discussions (referenced in the DFARS provision) might limit the significance of the DFARS provision, among other things.

This article reviews the origin and meaning of DFARS 215.306; the GAO, Federal Circuit, and CFC cases that have addressed it; and the issues that remain.

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