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Freyr

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  1. Thanks guys, I'll be trying to put all this information together for my CO to help with her final decision. Your answers are pretty solidly pointing in a single direction. Just for my own curiosity as someone still fairly new to being an 1102, if the effect is the same then what's the difference other than the course of action that produces it? If we waive the issue for everyone and just document the circumstances/reasoning then that would have the same effect as posting an amendment that removes it right?
  2. The funny thing is that our legal office feels issuing an amendment after receipt of proposals to change the eval factors is more risky than waiving requirements (I'm not sure why). The factor that's an issue really only affects about 1% of the work performed, so they feel there's an argument to be made that it's reasonable to relax the requirement for everyone as long as they're treated the same. I'm wondering if a claim a potential protestor could make is that since they were rated so low in all the other areas but submitted this part right that they would have been awarded a contract if we kicked out everyone who didn't submit that part right (assuming we do waive the issues). Seems like it would be award to a vendor who isn't necessarily the best value to the Government based on a technicality (or maybe a latent defect in the RFP?)
  3. We're actually doing multiple award (up to 30) so theoretically the issue would be waived for the numerous proposals with that issue (about 50% of the ones received, including the otherwise highest rated ones). We're getting pressure from the program office to find a faster way to deal with the issue and not allow for revisions/resubmission.
  4. Thanks guys, we did include 52.215-1 and had been thinking about that as well. We have been kicking ourselves for boxing ourselves in with our own language for sure. I think we'll end up going that route but I'm trying to do some research on what a "proposal modification" really means vs a "proposal revision." The definitions are there but it's not entirely clear how to go about determining if a mistake was made or if a vendor simply claims it was a mistake so we don't inadvertantly end up performing discussions. Most of what I've searched for is regarding offerors trying to submit proposal modifications and a CO rejecting them. I've also been trying to read through case law as well regarding waiving things, largely reading B-414401. What stood out to me in this case is that the Army decided to completely forego an entire evaluation factor. It states in there the reasoning was " The Army decided that the RFP did not reflect the intended evaluation and, despite the clear language of the solicitation, imposed a 90 percent confidence level on the evaluation." Overall the GAO found that there was no prejudice due to this decision. I don't see it as the government lying about how they'd evaluate but they also don't go the route of amending the RFP.
  5. Thank you for the replies, I'm taking this as a great learning opportunity. I'm curious what you think of the below article. It seems to imply that while it's a slippery slope there is some discretion COs can use when evaluating provided there's no prejudice. https://govcon.mofo.com/post-award-protest-primer-series/unstated-evaluation-criteria-and-waived-solicitation-requirements-bid-protest-primer-10/ Specifically the last part that says, "the protester must demonstrate that it “would have submitted a different proposal or quotation or that it could have done something else to improve its chances for award had it known that the agency would waive the requirement.” See Glock, Inc., B-414401, June 5, 2017, 2017 CPD ¶ 180"
  6. Sorry about the confusion, clearly the problem is not half solved yet for me! I think what my CO is looking to do is avoid needing to have all the offerors resubmit their proposals by amending the solicitation so she's looking to use the authority under FAR 15.306(b) to deal with only those specific offerors who have the issue or simply waive/relax that solicitation requirement that's causing problems.
  7. I guess my whole question revolves around having a solicitation requirement that doesn't really reflect the Government's needs and ends up kicking out otherwise good offerors but no one realizes it until proposals are received. So I've been pondering this question of whether an offeror would be allowed to correct a minor error in their proposal in a negotiated procurement on a pass/fail item if failure to correct that error would result in removal of the proposal from consideration. Pass/fail items don't result in any proposal being rated higher or lower than another proposal, it's more a matter of acceptability/RFP compliance, so would a change in one of those after receipt of proposals necessarily be considered a "material" change or a deficiency as FAR 15.001 defines a deficiency as "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." This pass/fail item may not necessarily increase the risk of unsuccessful performance to an unacceptable level but the solicitation itself may have been unintentionally restrictive enough regarding that item to result in removal of the proposal from consideration. For example, maybe an offeror is instructed to input a certain dollar amount for a cost reimbursable CLIN (say $10,000) but instead they input $5,000 and the RFP strictly states that any deviation from the pricing instructions would result in removal of the proposal from consideration. Or perhaps an offeror was instructed to submit a management approach which must discuss certain areas of employee retention but the plan fails to address it (again, it's a pass/fail and not rated on a scale). Changes to either of these wouldn't result in the proposal being rated higher or lower than another other proposal and allowing the offeror to correct their apparent mistakes wouldn't have resulted in any other offeror changing their proposals to their competitive advantage. FAR 15.306(b)(3) seems like an interesting avenue to allow for correction of these kinds of mistakes that are apparent upon review a proposal. Has anyone ever seen it actually implemented in such a manner so that the clarification process may be used rather than having to engage in discussions with each offeror? It's interesting to me that FAR 15.306 points to FAR 14.407 for how to handle these types of mistakes. The GAO always says that the acid test for whether it was discussions vs clarifications is the offeror getting the chance to revise their proposal but the COFC doesn't seem to always agree with that. Would the simplest and most reasonable solution be to just change the RFP after receipt and let everyone send in updated proposals or maybe just document the reasoning for not kicking those offerors out and continue the evaluation with those offerors?
  8. Mostly it's the use of non-commercial/cost reimbursable line items that led us this direction.
  9. The term "on-ramp" is an interesting one to me. Clearly it's been around for a while but it doesn't seem to be a concrete/defined term. 13 CFR 125.2(e)(2)(iii) even uses quotes when talking about it. In the approach I offered it would have been a single solicitation with multiple phases of awards based on multiple submission time frames, but I don't necessarily think it needs to be a single solicitation that provides for all submission time frames. If the situation changes there may be a need for increased vendors down the road that was unforeseen at the current time (almost like an IDIQ for getting more vendors!). This would need a separate "on-ramp" after the initial solicitation. So how would you define on-ramp? Is it a new solicitation, an amendment to a solicitation that already had awards issued, or something else entirely? How beholden to the original solicitation would you be under an on-ramping approach?
  10. I think this is the same case. https://www.justice.gov/archive/usao/ma/news/2010/October/ThrowerAllenSentencingPR.html Excerpt: "Thrower was found guilty by a jury after a seven day trial in July, 2010. The evidence at trial showed that Thrower, who had responsibility for preparing purchase requests and sole source justifications for the services of commercial contractors at Fort Benning, used his official position as Chief of Quality Support Division in the Human Resources Directorate to arrange for and influence the awarding of both sole source and competitive contracts to Military Service Support, LLC (MSS) for personnel-related services. Marie Cimino, Thrower’s sister, was President and Chief Executive Officer of MSS, a company formed in 2004 and located at Cimino’s single family residence in Groveland, Mass. Thrower and Cimino concealed their familial relationship from U.S. Army contracting officials and from MSS employees in Georgia." Edit: the original link posted should be https://www.justice.gov/archive/usao/ma/news/2010/July/THROWERverdictPR.html
  11. Our agency is contemplating a strategy for a new multiple award contract that needs contractors now but a greater amount of contractors down the road, what would be the risks in doing a FIFO (First In First Out) method? As in we make awards to the top 5 contractors who submit their proposals within 40 days, then we make award to the next top 5 who submit within 80 days, then the next top 5 who submit within 120 days. Is there any reason why we wouldn't be able to have multiple proposal submission time-frames? I haven't seen any solicitations like this but also haven't seen anything that would explicitly say no (let's call it innovation). This would allow us to fill our need for right now, then slowly build up to a total amount required. Trying to do the best alternative to the "everyone who meets our criteria gets an award" strategy.
  12. With absolutely no way to differentiate? Can always draw straws....
  13. Completely agree that it makes no sense . As I read it the Prime (whether that be a single entity or a JV) may submit projects from subcontractors without submitting any itself due to "shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor." So what's the point of a multiple award contract if you can be awarded a contract with zero experience? Aside from letting companies make money on selling their past performance to other contractors.
  14. Shika, 1. Yes, the JV itself can be a Prime contractor as it's a legal entity itself. If I understand the link provided it says that JVs should be treated as such. 2. If the JV submits by itself only (C) would apply to it. If the JV submits as part of a team with subcontractors then both B and C would apply simultaneously. Including the underlined would change it substantially to say that you must look to the Prime first before looking at subcontractors. 3. No, it reads to me that when looking at subcontractor capabilities and past performance you shall consider it as if it were the Prime's. Though I think I recall seeing some past GAO cases where an agency required experience from the prime itself due to the nature of the requirement. I think this is what I was talking about-- https://www.gao.gov/decisions/bidpro/405365.htm From before the update Retreadfed mentioned though.
  15. So doing a little scenario here...Solicitation gets protested with a company saying "you need to evaluate my sub performance as mine per this USC!" GAO likely goes to the SBA to get their opinion on it. My bet is SBA says that sub past performance needs to be evaluated as the USC applies to that procurement. Has there been any instances where the SBA says "don't worry about it, no regulations about that law have been made"?
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