Contracts Management Guide - Texas Comptroller of Public Accounts

In the first scenario, the top five (5) respondents are in the competitive range. In scenario number 2, the competitive
range could include the top two (2) respondents or the top five (5) respondents. In scenario number 3, there is a 6
point difference between the 2 nd and 3 rd score, with the remaining scores close behind. Therefore, the best option is to
include all six (6) respondents. Agencies should look for a “natural break” in the scores that will determine the
competitive range. The competitive range should consist of those proposals determined to be reasonably considered
for award selection.
Oral presentations and demonstrations should be fair to all parties. The time allowed and the format should be the
same for all presenters. A prepared script will ensure consistency. Since some presenters believe there is an advantage
to the order in which they present, it is best to draw names for the presentation order. This will ensure impartiality of
the process.
After the oral presentations or demonstrations are completed, respondents must be given equal opportunity to discuss
and submit revisions to proposals (unless applicable statute requires negotiation be conducted one at a time).
Normally this is accomplished by formally requesting Best and Final Offers (BAFOs) at the conclusion of discussions
with a deadline set for receipt of BAFOs. Commonly, BAFOs are submitted by supplemental pages and not a
complete resubmission of the proposal.
Negotiations
State agencies may negotiate terms and conditions in some solicitations and not in others. For example, the
competitive sealed bid method does not allow negotiations, while the competitive sealed proposal method does allow
negotiations. Unless specifically authorized by statute, state agencies may not negotiate the price, specifications, terms
or conditions when using a competitive bid process. A competitive bid presupposes that a good or service is:
1. Objectively describable in that respondents are bidding on the same product or service and terms and
conditions;
2. Available from more than one seller.
A bidding process cannot be competitive unless each respondent is bidding on like items. If the negotiation changes
or modifies the specification or any other term or condition, each respondent is not afforded the same opportunity to
bid upon the like items. A request for a respondent to clarify an offer is not the same as negotiation of the
specifications or terms and conditions so long as the request to clarify does not afford one respondent an advantage
over another.
Technical leveling and technical transfusion are prohibited discussion techniques. Technical leveling is helping a
respondent to bring their proposal up to the level of other proposals through successive rounds of discussion, usually
by pointing out proposal weaknesses. Technical transfusion is the disclosing of technical information or approaches
from proposals to other competitors in the course of discussion.
Agencies may not disclose information derived from proposals submitted from competing respondents in conducting
discussions. Prohibited disclosures include:
1) disclosing competing respondents’ cost/prices (even if the disclosure is made without identifying the vendor
by name); and
2) advising a respondent of its price standing relative to other respondents.
Competitive proposal and qualification processes generally contemplate and allow a certain amount of negotiation.
The best practice is to read the requirements of the applicable procurement procedure to verify that negotiation is
permissible. Even in competitive proposal or qualification processes, care should be taken to avoid inadvertently
changing the stated contracting objectives. If the contracting objectives are changed through the negotiation process,
each potential contractor is not placed on an equal level to propose an offer.
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