Sam101

This wifcon thread is a good supplement to this thread:

So, the way I see it, there are 2 instances of price reasonableness analysis when a competitive range is formed:

One for the competitive range formation, and one during trade-off documentation.

2 hours ago, joel hoffman said:

That can be tricky

But it's like that by default, isn't it?

Even if the solicitation does not state that unacceptable offerors are not eligible for award, the definition of unacceptable (and probably marginal as well) in the solicitation likely means the same thing as if the solicitation does state that unacceptable offerors are not eligible for award, since the government cannot award to an unacceptable offeror (an offeror who cannot meet the critical requirements of the SOW, at least based on their proposal) by default, right?

2 hours ago, joel hoffman said:

If you decide to conduct discussions and have one or more firms with deficiencies that may be curable, You need to consider pricing and non-price aspects of the proposals in establishing the initial competitive ranges.

Emphasis added.

Right, so, the way I see it, a firm being ineligible for award CAN become eligible AFTER discussions.

And you need to consider pricing when forming a competitive range, so that's why this is true:

When an offeror is unacceptable (un-awardable), the government must consider their price for the green text but not the red text:

1) When determining competitive range.

2) When documenting trade-off analysis.

3) When determining price reasonableness.

42 minutes ago, Jamaal Valentine said:

Read FAR 15.503

So, in accordance with FAR 15.503(a)(1) Preaward notices of exclusion from competitive range. The contracting officer shall notify offerors promptly in writing when their proposals are excluded from the competitive range or otherwise eliminated from the competition. The notice shall state the basis for the determination and that a proposal revision will not be considered.

Why is FAR 15.503(a)(1) titled "Preaward notices of exclusion from competitive range" when or otherwise eliminated from the competition means eliminated from competition even if a competitive range is not established? Such as an unacceptable rating but the government does not form a competitive range?

12 minutes ago, Jamaal Valentine said:

good writing is hard

True.

1 hour ago, Jamaal Valentine said:

I am not aware that price must be considered for unacceptable offers because the offer is excluded (ineligible for award as-is by rule).

That's what I thought too, but see Six3 Systems, Inc. - B-405942.4,B-405942.8:

Quote

Read together, the solicitation's definition of a marginal rating (which encompassed a failure to clearly meet solicitation requirements) and its statement that a proposal must meet the solicitation requirements to be considered for award adequately advised offerors that a rating of marginal may render a proposal ineligible for award. In other words, and stated conversely, the solicitation effectively informed offorers that ratings of acceptable or higher may be necessary for a proposal to be considered for award. Accordingly, we see no merit in Six3's argument that the agency was required to consider its lower-priced, marginal-rated proposal for award.[6] See Superior Landscaping Co., Inc., B-310617, Jan. 15, 2008, 2008 CPD ¶ 33 at 3, 4, 8 (proposal rated marginal properly excluded from best value tradeoff where solicitation provided that proposal must receive rating of at least acceptable to be considered for award).

Emphasis added.

But, actually, now that I'm re-reading the above quote from Six3 Systems, Inc. - B-405942.4,B-405942.8, I just realized that it's not about the solicitation's "statement that a proposal must meet the solicitation requirements to be considered for award adequately advised offerors that a rating of marginal may render a proposal ineligible for award", but rather the definition of marginal AND that statement COMBINED.

But this is what bugs me about GAO cases, they confuse the reader... why couldn't they just simply state that the solicitation's definition of a marginal rating (which encompassed a failure to clearly meet solicitation requirements) ALONE makes it so that the government doesn't have to include the marginal offeror in the trade-off process?

If the definition of marginal being un-awardable alone is enough, then this is true regardless of whether the solicitation has the above green statement:

When an offeror is unacceptable (un-awardable), by the definition of Marginal OR Unacceptable in the RFP, the government must consider their price for the green text but not the red text:

1) When determining competitive range.

2) When documenting trade-off analysis.

3) When determining price reasonableness.

Thank you all for walking me through this... but just so I'm clear, is this correct?:

When an offeror is unacceptable (un-awardable), and the solicitation explicitly states that any rating below Acceptable is not eligible for award, the government must consider their price for the green text but not the red text:

1) When determining competitive range.

2) When documenting trade-off analysis.

3) When determining price reasonableness.

When an offeror is unacceptable (un-awardable), and the solicitation DOES NOT explicitly state that any rating below Acceptable is not eligible for award, the government must consider their price for the green text but not the red text:

1) When determining competitive range.

2) When documenting trade-off analysis.

3) When determining price reasonableness.

The way I see it there are three instances where the government considers competing offerors' prices:

1) When determining competitive range.

2) When documenting trade-off analysis.

3) When determining price reasonableness.

When an offeror does not meet all requirements of the SOW, it doesn't hurt to consider their price for competitive range and trade-off purposes, but it may not make sense for price reasonableness purposes.

The cases cited so far in this thread talk about competitive range and trade-off, but not price reasonableness.

On a related note, regarding competitive range determinations, see Addx Corporation B-417804; B-417804.2; B-417804.3, https://www.gao.gov/assets/b-417804.pdf.

Addx Corporation rated marginal but GAO still said that the government should have considered Addx Corporation's price during the competitive range determination.

If the government states in RFP that "offerors who rate below Acceptable may not be considered for award and their price will not be evaluated", but then when performing the competitive range determination, the government "evaluates" a marginal offeror's price, by "considering" their price for competitive range determination purposes, how is that "offerors who rate below Acceptable may not be considered for award and their price will not be evaluated"?... Because the government is now evaluating the marginal offeror's price even though they said they wouldn't?

I don't know if the solicitation in Addx Corporation B-417804; B-417804.2; B-417804.3 that "offerors who rate below Acceptable may not be considered for award and their price will not be evaluated". It probably should have, although I'm not sure if GAO differentiates "competitive range determination price comparison" and price analysis for price reasonableness purposes prior to making an award.

And see this case:

https://www.gao.gov/assets/830/826402.pdf

The government properly made award to a marginally rated offeror.

I wonder how the price reasonableness determination looked like for this award.

3 minutes ago, joel hoffman said:

You are only discussing prices, not why B is a better value than A or C, considering both price and non-price factors.

Right, so the reader will assume (or not care and not assume anything) that the prices are for similar quality services, or items.

20 minutes ago, joel hoffman said:

Does that make sense to you ?

Yes, that makes sense, in the context of the marginal rating being un-awardable, but in the context of the marginal rating being still awardable, it's confusing. 

Vern had comments on this related thread:

Assuming that Marginal is not ineligible for award, but still bad, leaving any mention of non-price ratings out of the price reasonable analysis might make the reader think that all compared prices are of not bad non-price ratings... but I don't know if that matters for price reasonableness purposes. So that's what I'm asking about.

Assuming a solicitation says that it's OK to award to a marginally rated offeror, then the price reasonableness analysis can look like this:

Offeror A: $750,000.00

Offeror B: $789,000.00

Offeror C: $775,000.00

Independent Government Estimate (IGE): $783,000.00.

Choice 1: Apparent awardee's, Offeror B's price is reasonable, their price is close enough to the IGE, and other offers received are lower than offeror B's, but not too much lower, and by the way, Offeror C was rated marginal.

Choice 2: Apparent awardee's, Offeror B's price is reasonable, their price is close enough to the IGE, and other offers received are lower than offeror B's, but not too much lower.

Which way is more proper? Choice 1 or Choice 2?

I don't think I ever mentioned non-price ratings in a price reasonableness determination... but is there a good reason to include the fact that one or more offerors' prices whose price you're comparing the apparent awardee's price to rated marginal for a nonprice factor in a price reasonableness determination? Or does it not matter?

Right, in the instant case of Six3 Systems, Inc. - B-405942.4; B-405942.8, the marginally rated offeror was properly not included in the trade-off analysis, and I assume also was not included in the price comparison with other offers received for price reasonableness purposes.

I guess another way of phrasing my question is:

When is it proper to not include an offeror's price in the price comparison with other offers received for price reasonableness purposes? Only when they are not included in the trade-off analysis?

So, when looking at Six3 Systems, Inc. - B-405942.4; B-405942.8, we have this quote:

Quote

Agency decision not to include protester’s lower-priced, marginal-rated proposal in best value tradeoff is unobjectionable where solicitation adequately advised offerors that marginal rating may render proposal ineligible for award.

I understand that the only way that the government is not required to include a marginal rated offeror in its trade-off analysis is IF the solicitation states that marginal rated offerors may not (or shall not) be considered for award.

I always thought a marginally rated offeror's price doesn't matter for neither the trade-off analysis nor the price reasonableness analysis, because it's not relevant, since its non-price proposal is marginal, but according to Six3 Systems, Inc. - B-405942.4; B-405942.8, the government is required to include a marginally rated offeror in its trade-off analysis IF the solicitation doesn't say that they won't.

So I have these 2 questions:

1) If the marginally rated offeror is included in the trade-off analysis, can't it also be included in the price reasonableness analysis?

2) Can the marginally rated offeror be included in the price reasonableness analysis even if it's not included in the trade-off analysis?

Let's assume that the definition of Marginal is "the proposed approach is terrible and the risk of unsuccessful performance is certain."

On 3/13/2024 at 7:46 AM, Vern Edwards said:

Have the three men exerted nine hours of effort or 27 (3 x 9) hours?

The level of effort for this scenario is 9 hours, because those are the productive hours.

But the price of this work will not be $250 per hour multiplied by 9 hours (assuming each productive hour costs $250 per hour), it will be $250 * 9 hours plus some other cost of having the workers be on site waiting their turn, the main cost driver will be $250 * 9 though. 

How do you get the data from SAM.gov? Do you use the SAM.gov Get Opportunities Public API? Or is it some bot that scrapes SAM.gov without using the API directly?

I'm a government employee, and with my government account, I can send what seems like unlimited requests, with my personal non-government account, the request limit is too low to be of any real use... If you are not using a government account, can you get unlimited requests with a business account?

On 3/27/2024 at 12:48 PM, Guitarsit said:

If you want to be completely by the book and don't care whether that results in an award to Company A or Company B, sure you could ask the question.

1) Yes, I want to be by the book, and even if I did not want to, I am required to be by the book.

2) No, I do not care if Company A or B wins, as long as it is by the book.

On 3/27/2024 at 12:48 PM, Guitarsit said:

I know some companies that will twist a departing employee's arm into signing a letter of commitment on their way out the door

Well this is fraud, and if I have anything to do with it, I'll hunt down the facts, terminate the contract, and award to whoever was next in line.

If a company asked me to sign an LOC even though they knew I was not going to be available prior to award, I would ask for $50,000.00 in exchange for my signature on the LOC, sign the LOC, then call the agency and say "they made me sign the LOC", and keep the money.

On 3/27/2024 at 3:46 PM, formerfed said:

the government taking long periods in performing evaluations

Yes, I know.

B-421307

52 minutes ago, joel hoffman said:

not ignoring non-conforming terms and conditions in a quote or proposal,  “meeting of the minds”, etc.

I agree.

59 minutes ago, joel hoffman said:

You could specifically identify the specific terms or conditions that you don’t accept in the government’s offer to award.

I agree, however, this could count as discussions, since it's the same thing as asking SAIC to remove their indemnity clause.

It should not count as discussions though as long as the removal of a contractor's unacceptable custom clause does not affect their price quote, or anything else either, like their technical approach, if that was an evaluation factor.

In the case of United Marine International LLC File: B-281512, is “FAR Sec. 12.301(c) where a relative technical evaluation is contemplated” implying that FAR 52.212-2 Evaluation-Commercial Products and Commercial Services is only appropriate for trade-off solicitations? And not LPTA?

If FAR 52.212-2 Evaluation-Commercial Products and Commercial Services can be used in LPTA, how is “the offered equipment's compliance with the specifications” not an evaluation factor? If this clause is allowed in LPTA, shouldn’t DACW69-98-Q-0328 have had FAR 52.212-2 in the solicitation that looked like this?:

Addendum to 52.212-2 Evaluation—Commercial Products and Commercial Services.

52.212-2 is entirely replaced with the following:

(a) The Government will award a contract resulting from this solicitation to the responsible quoter whose quote conforming to the solicitation will meet the Government’s requirement, the following factor shall be used to evaluate quotes for technical acceptability:

Whether the description of the equipment meets the requirements of the performance specifications in Section C.

(b) The resultant contract will not have options, the default text of 52.212-2(b) is not applicable.

(c) The Government will make an offer to buy to form a contract, based on the selected quote.

(End of provision)

14 hours ago, Retreadfed said:

not open-ended and is limited to the availability of appropriations

So, does this mean that the indemnified contractor is only entitled up to the contract price just like in the case of a T4C termination fee?

For example, if a contract, no matter the contract type, is $100,000.00, and the contractor almost finished the work (like, I mean the contractor is literally putting the final nail in the work) and is ready to get paid $100,000.00, and a contractor employee accidently drops a hammer on a subcontractor's toe, and the subcontractor gets injured, there would be almost $0.00 left for the government to cover the cost of the government's responsibility to pay for the subcontractor's medical bills?

Or is "availability of appropriations" not the same as "the obligated value of the contract"?

26 minutes ago, joel hoffman said:

accept everything at face value

Yeah, my wallet is looking pretty thin at the moment, sell me this here brand new Lexus for $15,000.00 with 0% interest and make the loan term 10 years.

32 minutes ago, ji20874 said:

The negotiation examples I shared are legitimate and honorable

I agree.

I remember a recent negotiation where I had to let multiple quoters know that their prices were too high, but I did not explicitly state the decease the government was looking for in terms of explicit dollar amounts, e.g., $200 or $500, I just said this:

Quoter 1: Your price is moderately too high, please decrease.

Quoter 2: Your price is significantly too high, please decrease.

Quoter 1 decreased their price well and ended up getting the award, I don't remember by how much Quoter 2 decreased their price, but in any event, Quoter 1 got the award.

1 hour ago, joel hoffman said:

It likely takes more of time, effort and labor cost for you and the other government organizations, offices and personnel to contact the end user to demand $200 more  to award a purchase order

I see your point, but just in general, not just in the government, but for businesses as well, I sometimes struggle to understand what "labor cost" means when it comes to performing "extra" tasks, in the sense that if workers are not performing these "extra" tasks, it's not a guarantee that they would spend their time doing something else that is useful to the business, or the government, i.e., the workers might be idle... if the works are idle, then what is the extra cost involved in them doing extra tasks? Is it better to pay workers for being idle?