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About OldHickory

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    Tennessee history, southern gothic literature, 17th & 18th century English poetry (particularly works by Donne, Johnson, Pope, and Blake), satirical humor, well-mannered people with a demonstrative gift of wit.
  1. OldHickory

    Negotiations with Offerors AFTER Award

    "It may be appropriate for the Corps to reopen discussions after award, re-evaluate proposals, make a new source selection decision, and terminate your contract. See, e.g., Mission Essential Personnel, LLC, GAO Decision B-404218.2, 2011 CPD para. 120. However, such an action may be inappropriate. . . . Then again, limiting discussions may be improper." Could you please explain what circumstances the corrective action taken in Mission Essential would be inappropriate? And under what circumstances limiting discussions may be improper? I'm currently reading the decisions you cited, so it that explanation is contained in them, I apologize. I just wanted to make sure I asked you while you were still online here.
  2. OldHickory

    Negotiations with Offerors AFTER Award

    Thank you, Vern. I appreciate you taking the time to make such a comprehensive response with citations to GAO decisions that are relevant to this matter. I agree with you that I don't think the USACE's actions bode well for us, and we'll be prepared to take appropriate legal action if our contract is awarded to another offeror based on improper procurement actions by the USACE.
  3. OldHickory

    Negotiations with Offerors AFTER Award

    Vern, I know the USACE can't do whatever it wants; otherwise, there would be no need for the FARs or any other regs or laws. So, I completely disregarded that statement. I was also just trying to be nice in my response. Anyway, I'm approaching this from a contractual standpoint: we have a contract with the USACE, so I don't see how the USACE can now entertain discussions with the other offerors as if this contract does not exist. I could understand perhaps if the contact was T4C, but that hasn't happened. Even if that had happened, I would expect the RFP to be re-solicited. Are you, in all your years of experience, aware of a situation when a government agency resumed negotiations with the rejected offerors after contract award as if the award never happened? From my reading of 4 CFR 21.8, resuming negotiations as a remedial measure with the disappointed offerors isn't an option. This isn't a case where the agency is making an award to a different offeror in order to comply with a reg or statute. Rather, the USACE is changing the terms of the negotiation. Our concern is if we protest, the USACE will just cancel the RFP and resolicit to a MATOC pool or set the award aside for service disabled vets or some other group that we are excluded from. This is simply a crummy situation the USACE has put us in by disclosing our pricing to our competitors and then changing the rules of the game. And, we have been engaged in "discussions" over the past week, complaining quite loudly about how this recent procurement action is prejudicial and not in the spirit of FAR 15.306. As for intervening, we received heavily redacted copies of the GAO protests (two of which were dismissed, one withdrawn). Each one was based on allegations the USACE has improperly deemed their respective proposals as technically unacceptable for reasons stated in the de-brief that had never before been raised in the previous discussions. So, intervening would have done little for us but cost us money and resources.
  4. OldHickory

    Negotiations with Offerors AFTER Award

    Thank you, ji20874. Your responses are very helpful.
  5. We were awarded a task order contract by the USACE after submitting the lowest price technically acceptable offer. The award was signed in May 2012 and we turned in the bonds. A few days later we received a suspension of work notice due to several protests that had been filed by disappointed offerors. We did not intervene in those protest actions. This week, we received a notice from the USACE stating: "In accordance with Federal Acquisition Regulation (FAR) 15.306 entitled "Exchanges with offerors after receipt of proposals," the Government has now determined that discussions are necessary. Your proposal was evaluated against all evaluation criteria contained in the amended solicitation and was determined to be within the competitive range which allows for discussions to commence. You are provided the opportunity to provide a revised price proposal. Your responses to the EN(s) and revised price proposal constitute your final proposal revisions. Your response(s) to these questions are due: not later than 5:00 P.M. Central Daylight Time, October 26, 2012." Our award was never cancelled. So this is perplexing to us. After we notified the COR of our concerns that our pricing had already been disclosed the other offerors through the award, the USACE stated we could resubmit pricing. This doesn't really answer our concerns. Can the USACE re-open negotiations after contract award? Is there any recourse for us relative to the disclosure of our pricing which now puts us at a considerable disadvantage to the offerors?
  6. Just to elaborate on that last point, it's irksome and frustrating that this supplier knows that the Government is requiring exclusive use of its electrical gear, and that the cost of this gear is the substantial part of the price. Thus, the supplier has in essence placed itself in the position of determining the awardee by virtue of its ability to name its price among the competitors. That just doesn't appear to be fair, just or otherwise in the competitive spirit of the contracting regs.
  7. Thanks for your comments, Vern and Whynot. I was pretty certain we don't have any recourse under the contracting regs, but thought it was worth a shot to ask around anyway. Nevertheless, I don't necessarily agree with you, Whynot. I seriously doubt a game of 20 questions would have gotten this supplier down on its price by 66%. I am very familiar with vendor practices of providing preferential prices to certain customers. But, a 66% difference in price? It's just very hard for me to buy that (excuse the pun).
  8. The Government requested best-value proposals under an existing task order to renovate a building. This particular RFP called for electrical gear to be matching-to-matching to the existing electrical gear and specified the brand name, make and model of the electrical gear to be used. We'll call the manufacturer of this electrical gear "Alpha Electrical" for the purpose of this inquiry. We decided to self-perform the electrical work on the project and got a price from Alpha for the electrical gear required by the RFP for $3.4M. After turning in the proposal yesterday, we learned from another contractor who decided not to submit a proposal that Alpha quoted them a price for the same gear for $3.6M. That contractor decided not to submit a proposal when he found out that a competitor had been quoted a price from Alpha for the exact same gear for $2.4M. The electrical gear is not a separate line item within the proposal, so we doubt if the CO will know that the vast swing in the offered prices results from Alpha's screwy pricing practices. While I have some suspicions, I won't speculate as to why Alpha is doing this. My question is this: When the government requires brand specific equipment to be used with no alternatives permitted, what recourse, if any, does an offeror have if that brand-name supplier provides pricing for one offeror that is 65% more than the pricing for another offeror after the proposals have been submitted? We didn't protest or otherwise question the need for the brand specific electrical gear at proposal time because we didn't have a reason to believe an alternate was available (and we still don't). Any insight you may have on this unusual issue would be appreciated.
  9. But then construction-public procurement lawyers wouldn't have any work! Thanks for the sound advice, Vern. I really appreciate it.
  10. Thank you for everyone's responses. I did not intend to come across as forcefully is I might have in my response to Vern's initial reply. Our relationship with the prime contractor is important to us and we'd like to maintain our good relations. I suppose what I really want to knows a lot more simple: does the $1.5 million threshold at which point a subcontractor is required to submit a small business subcontracting plan apply at subcontract signing or can it be triggered by virtue of change orders that increased the subcontract price to 1.5 million?
  11. We are not a small business. There are no further subcontracting opportunities in the work to be done (assuming the prime doesn't come back to us again with a change directive that dramatically increases the scope of the work). Given that the prime didn't require us to submit a plan in the first place (even though it was in the contract T&Cs) and is only now demanding one at the conclusion of the project when there are no more sub-subcontracts to be awarded, it seems rather disingenuous to create some plan with goals that cannot practically be achieved since the all the work as already been sub-subcontracted out. Creating goals after all the work has been subbed out is somewhat like closing the barn door after all the horses have bolted. As far as state law is concerned and how a trier of fact might rule on the failure to submit a subcontracting plan after the fact, I am pretty confident that we'd be successful in arguing that the prime waived its right to enforce the clause by passively permitting the subcontractor to nearly complete the job without having submitted it. Principles of estoppel would likely also come into play for similar reasons and on the basis that a plan with subcontracting goals fails of its essential purpose when it isn't required until after all the sub work has already been completed or nearly completed. Finally, what could the prime's damages arising from this breach of contract (assuming failure to submit the plan is, in fact, a breach) possibly be when the prime has no liability for a sub's failure to submit a plan that was never required in the first place? Since damages are an essential element to a breach of contract action, and the prime would have none under the circumstances assuming that the CO does not require a plan from us, I'm very confident that the prime would lose any arguments arising from breach of contract under state law. Nonetheless, I will take you advice and contact the CO on the project to confirm. Thanks for all your helpful advice in response to my inquiries.
  12. We are a subcontractor currently performing construction work on public facility. The project is fully funded through federal funds administered by the GSA. About a year into the project, the prime contractor notified us that a Small Business Subcontracting Plan was required of the subcontractor but never submitted. Our subcontract with the prime expressly incorporates FAR Clause at 52.219-9. Subsection (d)(9) of that Clause states, "(d) The offeror's subcontracting plan shall include the following . . . (9) Assurances that the offeror will include the clause of this contract entitled 'Utilization of Small Business Concerns' in all subcontracts that offer further subcontracting opportunities, and that the offeror will require all subcontractors (except small business concerns) that receive subcontracts in excess of $650,000 ($1.5 million for construction of any public facility) with further subcontracting possibilities to adopt a subcontracting plan that complies with the requirements of this clause." The base price of our subcontract was $137,000, a sum well below the $1.5 million threshold trigger requiring Small Business Subcontracting Plans from subcontractors. However, over the course of the project, the prime contractor issued changes orders that increased the scope and the price of the subcontract. By the time the prime contractor got around to demanding our Small Business Subcontracting Plan, the subcontract price had increased through change orders to over $2 million. So, my question is whether we are obligated to submit a Small Business Subcontracting Plan under the circumstances I described above. My initial inclination is say no, since the base subcontract amount was far less than the $1.5M threshold set forth in FAR Clause 52.219-9(d)(9) and FAR 19.708( (1). But, I'd like to get your thoughts on this issue.