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ARTICLE · 29 SEPTEMBER 2014

"That Wasn’t Fair!"—Protests Based on Unequal Discussions

Mayer Brown
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This is the fourth post in a series of posts focused on protest allegations related to discussions with offerors. The first post addressed differences between clarifications and discussions. The second post focused on the requirements for discussions to be meaningful. The third post dealt with misleading discussions. The final post in the series will provide a round-up of recent protests involving discussions.

United StatesGovernment, Public Sector
Michelle E. Litteken
Michelle E. Litteken
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Editor's note: This is the fourth post in a series of posts focused on protest allegations related to discussions with offerors. The first post addressed differences between clarifications and discussions. The second post focused on the requirements for discussions to be meaningful. The third post dealt with misleading discussions. The final post in the series will provide a round-up of recent protests involving discussions.

The principles of fair and equal competition drive many aspects of procurement law and policy. These principles are evident in the FAR's requirement that when an agency engages in discussions with offerors, the agency cannot "engage in conduct that [f]avors one offeror over another." Discussions often occur as part of the procurement process, and can be beneficial to the agency and offerors. However, discussions have their drawbacks. If an unsuccessful offeror believes that other offerors were given better direction or provided with more

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