honeybus
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Sorry -
Joel, thanks for setting me straight.
Barry sends
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Honeybus:
I can see why you had trouble finding anything. That's a very specific set of requirements:
1. contract was awarded
2. government knew proposal had a deficiency
3. government awarded contract despite that knowledge
The problem is number 2. Usually, the SSA and contracting officer did not know of the deficiency at the time of award. Someone on the tech panel may have known of a problem with the proposal, but did not know it should be called a "deficiency" or that the deficiency made the proposal unacceptable
You can find many decisions in which agencies awarded contracts on the basis of proposals that were unacceptable at the time of award, and thus lost a protest.
Nevertheless, I will look around when I have time. There might be something.
Thanks, Mr Edwards.
but please keep my self-definition for 'deficiency' in mind: a 'deficiency' does not make a proposal 'unacceptable', it just makes the actual creation of a contract [meta]physically impossible. That is, a 'deficiency' is a condition which makes a contract creation impossible (missing an element of contract).
The FAR part 15 description (definition?!?!) for a 'deficiency' DOES cover my condition within its first item, but DOES NOT cover my definition is its second item
15.001 -- Definitions.
As used in this part ?
?Deficiency? is a material failure of a proposal to meet a Government requirement or a combination of significant weaknesses in a proposal that increases the risk of unsuccessful contract performance to an unacceptable level.
?Proposal modification? is a change made to a proposal before the solicitation closing date and time, or made in response to an amendment, or made to correct a mistake at any time before award.
?Proposal revision? is a change to a proposal made after the solicitation closing date, at the request of or as allowed by a contracting officer, as the result of negotiations.
?Weakness? means a flaw in the proposal that increases the risk of unsuccessful contract performance. A ?significant weakness? in the proposal is a flaw that appreciably increases the risk of unsuccessful contract performance.
Deficiency, as shown in FAR Part 15, is NOT A DEFINITION , but an EXAMPLE. it should read;
?Deficiency?, examples of which are (1) a material failure of a proposal to meet a Government requirement or and (2) a combination of significant weaknesses in a proposal that increases the risk of unsuccessful contract performance to an unacceptable level.
Of course, (1) is a true example because it shows no meeting of the minds, but (2) is NOT EVEN a true example, since it does not prevent a contract from being created / awarded.
Since these definitions are really only applicable to this FAR Part 15, and not the real world, I am not concerned. What the FAR Part 15 is defining as 'deficiency' is only applicable to this section.
I become concerned when the proposal presents a condition which the Government cannot accept. I call this a DEFICIENCY. It prevents the creation of a contract (for example, the Govt cannot perform; Offeror proposes that Govt is to do something which is not within contract law).
I find this category of contract interesting: aleatory contract
: a contract in which either party's performance is dependent on an uncertain event
Barry sends
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Try these two:
Systems Management, Inc, Comp Gen B-287032.4, Apr 16, 2001, 2001 CPD, ? 85
Cortland Memorial Hospital, Comp Gen B285890, Ma4 5, 2001, 2001 CPD, ? 48
Thanks for all your help. I wish to close out my request.
Joel, these did not fulfill my search, but are intreresting in themselves:
Matter of: Systems Management, Inc.; Qualimetrics, Inc.
File: B-287032.3; B-287032.4
Date: April 16, 2001
DIGEST
Protest is sustained where the procuring agency improperly relaxed for the awardee
a mandatory solicitation requirement that the weather observation system be
certified by the Federal Aviation Administration, yet did not notify the offerors of its
changed requirements, and the record evidences that the protesters were prejudiced
because they could have proposed different systems if they had been apprised of the
agency?s actual requirements.
Matter of: Cortland Memorial Hospital
File: B-286890
Date: March 5, 2001
DIGEST
Protest of agency?s source selection is sustained where contemporaneous
documentation does not establish that the selection was consistent with the
solicitation?s evaluation criteria.
DECISION
Cortland Memorial Hospital protests the award of a contract to Cayuga Medical
Center under request for proposals (RFP) No. 670-05-00, issued by the Department of
Veterans Affairs (VA) for a community-based outpatient clinic (CBOC) to serve VA
beneficiaries. Cortland essentially contends that the agency?s award decision was
based on an unreasonable evaluation of proposals.
We sustain the protest.
and a footnote: Because we recommend that the agency reevaluate proposals, we need not address the other issues raised by Cortland.
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What, exactly, do you need the decision to say?
To show [say] that a government contract was awarded, where the Government recognized that the proposal had a deficiency, and the deficiency was recognized by the Government at the time the Government made the award.
I mentioned to my supervisor that I came across such a case [protest], and my supervisor appropriately responded, "show me." Now I cannot find the example.
All of the referenced cases and points which were graciously - previously mentioned are solid. I am searching for an aberration, something which should never have been allowed to happen, and yet did happen. An award was made in light of an existing and true proposal deficiency.
Barry
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All you want is a case? Any case? There are many such cases. Hundreds. If you awarded a contract on the basis of a proposal that contained a deficiency and you get a protest you are going to lose. Period. End of story. That's Source Selection 101.
Great!! That's what I am seeking -
Vern, can you reference THREE cases for me. I have been searching for at least 15 manhours, and I cannot find.
Agreed, that if I awarded a contract on the basis of a proposal which contained a deficiency, and if I got a protest, I would lose. Please ignore 'informational deficiency', and I am looking for a negotiated procurement using FAR Part 15
My position is that, given my understanding of deficiency, it is not possible to award a contract. 'Deficiency', to me, describes a condition where one of the elements of a [valid] contract is missing.
With out that missing element, then a contract is not a contract.
OK, just three GAO or COFC cases where the Govt Contracting Officer did award a contract, and it was put down by protest (or even ignored due to lack of standing or jurisdiction or what-ever).
Many thanks.
Barry
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I am searching for a GAO or COFC case (protest)
(1) where a federal contract was awarded [as evaluated under FAR Part 15] when there was a 'deficiency' in the proposal,
or
(2) where the proposal was declared 'unacceptable' by evaluation [evaluated as unacceptable, yet was the least unacceptable proposal]
Thank you
Barry
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This site:
http://www.acq.osd.mil/dpap/dars/opencases...casenum/far.pdf
This case:
2006-034 Revise FAR to reflect SBA's interpretation of the
Small Business Act and SBA's interpretation of its
regulations regarding the relationship among the
small business programs.
This status:
09/24/2008 The DARC requested that the case be placed in a "hold"
status while resolving issues identified during review of the draft
final rule, including issues raised in a decision by the Comptroller
General.
This quest:
I want to learn about the 'issues identified during review of the draft final rule', and
I want to ID and get the refererenced 'decision by the Comptroller General' to see the issues there.
And, if possible, who is 'resolving' these issues.
Many thanks
Barry sends 2/9/2009
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Thank you all for your very valued input. Sincerely.
I forgot to consider my own personal guidance: When I am asked a question, I do not answer the question unless I am absolutely clear on how, or for what purpose the interrogator will use my response. So often when I am asked a question, I ask 'why do you ask that question; what will you do with my answer?'
If I am not satisfied with the question presented, I will say 'Let me rephrase your question so that I can give an answer.'
Apparently my question had twists and turns which I had not considered, and for receiving that insight I am thankful.
Here's a ditty I like to sing - "Ask the RIGHT question and you will get the RIGHT answer. Ask the WRONG question and you will get - - - - - the RIGHT answer - - - to the WRONG question." [Yes, a little strange person sitting at this keyboard.]
Barry sends 2/9/2009
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Person Year / Man Year.
I see figures like "200,000 Labor Hours, based on a 1980 LH Man Year equates to XXX FTE (Full Time Equivalents)"
I then ask "Why do you use 1980 LH to equate to a FTE, and not some other figure?" I question the 1980 as without rationale since 1980 LHs equals 49 weeks, 2 days, and 4 hours, i. e., 49.5 weeks. It is an awkward figure. 1984 is better, (though ominous), and 1920 is more reasonable yet, considering 2 weeks holidays and 2 weeks leave.
Perhaps the 1980 figure is in some regulation or guideline, or is in common use. I don't know.
Barry sends
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What is the most popular figure to classify a Person Year?
2080 is full time, 40 hours per week, 52 weeks per year.
2000 considers the 10 national holidays.
1980 is the figure that is being used in the acquisition which I am supporting. I questioned the rationale of using 49.5 weeks (1980/40) as a Person Year because it not only breaks a week in half, it breaks a day in half.
What number of hours would you use, as a general matter. Thanks.
Barry sends
Proposals containing deficiencies are ineligible for award
in Contract Award Process
Posted
Well, your language seems confrontational so I will accept:
"based upon a deficient proposal which doesn't comply with all material solicitation requirements."
Perhaps "based upon a [deficient] proposal which doesn't comply with [all] even a single material solicitation requirement."
"When the courts and GAO say that it a fundamental principle in federal acquisitions . . ."
I guess I look to the courts and GAO for [fundamental??] principles of law.
"What exactly is it that you cannot understand about the information that I referenced/cited for you in your similar thread the past few days? "
I am sorry, but it might take unacceptable time, space, and bandwidth to explain "What exactly [is it] it is that [you] I cannot understand ..." Especially the EXACTLY part... And please put whatever definition you care to on my use of the term 'unacceptable'. Question is taken as rhetorical.
"Good God, Almighty! "
Ok, but I usually say "Good God, Almighty, thank you for the food and for your gifts . . . " I found it does not help to yell to the Good God, Almighty! since the Almighty is not noted for hearing impairments. Vengeful - yes; hearing impairments - no.
Barry sends
PS- I am not legal, though I must interact with legal counsel, nor am I contracting rated, yet I have to 'share knowledge and insights' with contracting.
If I could only ask the right question here, there would be a better chance for me to get the right answer.
Too bad the NEWBIE forum was placed somewhere where a newbie [me] can?t find it.
Hey!!
A little light humor?!?! OK.
"Sometimes you eat the bear; sometimes the bear eats you. 10 to 1 is NOT an acceptable ratio, for either the bear or for you."