As part of the Revolutionary FAR Overhaul (“RFO”), the FAR Council issued a proposed rule that would implement — with some notable changes — the Council’s model deviation for FAR Part 15, Contracting by Negotiation.
A number of those proposed changes to the deviation version have the potential to materially impact how procurements are run and bid protests are pursued.
In this series, we examine the proposed changes to Part 15 one at a time. Now up: Discussions vs. negotiations vs. clarifications.
Caveat: There is a lot to unpack in the proposed rule’s revisions to exchanges with offerors. For purposes of this installment, we focus on the line-drawing questions around clarifications vs. negotiations.
The “Old” FAR: The “old” FAR laid out two primary avenues for the government to communicate with an offeror about their proposal during the pendency of a procurement: discussions and clarifications.
Under “old” FAR 15.306(d), discussions were described as “exchanges, in either a competitive or sole source environment, between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal.” Under “old” FAR 15.306(a), clarifications were described as “limited exchanges” that do not rise to the level of discussions.
As a result, the well-established “acid test” as to whether exchanges with an offeror were discussions or clarifications was “whether an offeror has been afforded an opportunity to revise or modify its proposal.” Tech. Sys., Inc., B-423547 et al., Aug. 8, 2025. That distinction was important because discussions had to be held with all offerors in the competitive range, whereas clarifications did not.
The Proposed Rule: According to the prefatory commentary, the proposed rule aims to “expand[] on the use of clarifications” in order to address a concern that, under the “old” FAR, “agencies forgo simple clarifications to avoid inadvertently crossing the boundary into a discussion and creating a protest risk.”
The proposed rule maintains the concept of clarifications and discussions, although it renames discussions to “negotiations.” Proposed FAR 15.001 provides definitions of each, and it continues to base those definitions on the question of whether there is an opportunity for proposal revision (emphasis added):
- “Clarification means communication between the Government and an offeror where the offeror is given the opportunity to resolve minor or administrative errors or clarify certain aspects of their proposal, but does not result in an opportunity for offerors to submit a proposal revision.”
- “Negotiation means communication between the Government and an offeror regarding an offeror’s proposal that results in an opportunity for the offeror to submit a proposal revision.”
Despite those straightforward definitions, the further discussion (pun intended) of clarifications in proposed FAR 15.202(a)(2)(i) raises questions about how the line between clarifications and negotiations is being drawn. Under that provision, clarifications may be used to address a new list of things that would seem to have the potential to result in a proposal revision, in particular “[o]ther concerns such as perceived deficiencies, weaknesses, errors, omissions, or mistakes.”
This is a notable change from the old FAR, as well as from the RFO deviation, which expressly prohibited using clarifications to cure proposal deficiencies.
The only limitation imposed by proposed FAR 15.202(a)(2)(ii) is that the clarification cannot “alter the cost/price or other material elements of the proposal or cure a material omission in the proposal.” But if this language makes it into the final rule, it remains to be seen how this needle will be threaded.
For example, if clarifications can’t be used for proposal revisions or to “cure a material omission,” how could they be used to address “perceived deficiencies, weaknesses, errors, omissions, or mistakes”? Is the answer to that question resting on the word “perceived”?
That potential for confusion is further compounded by the fact that proposed FAR 15.001 changes the definition of proposal revision to remove any materiality threshold, and also makes changes to the definition of deficiency (which will be discussed in a future installment of this series).
The Takeaway: The proposed rule’s approach to clarifications and negotiations has the potential to create confusion in practice as well as potential protest fodder. Keep an eye out for the possibility of further changes in the final rule.