Sam101

Right, but when all the stars align, the government can end up staring at a document from the GAO stating "the protest is sustained, on the grounds that the government engaged in improper discussions".

I know how to negotiate, thank you, I just like the way "no money no contract" sounds. But I understand your point, well said. This may be a mistake on the contractor's part, for trying to play games, especially when the solicitation asks for best prices on initial quotes.

I am not an expert on indemnification matters in terms of when or why or how the government accepts the responsibility to compensate a contractor for harm or loss as a result of the contractor performing a government contract. I would imagine that only the clauses in the contract apply, so if there is an indemnity clause in the contract, it would have been in the solicitation (market research would have resulted in the government determining that an indemnification clause of some sort, crafted by the government, is appropriate... and I believe there are some standard indemnification clauses in the FAR, and possibly in agency supplements). I believe that any random contractor provided indemnity clause can be ignored, since contractors can't just plug their custom clauses into a contract just because it's in their small print. I guess that's why the government usually informs offerors that they must state any exemptions to the terms of a solicitation in a certain section of their proposal, I usually state in section L that offerors must state exemptions in their introductory letter, and that this is the only place that the government will consider any exemptions, and exemptions stated anywhere else in their proposal (such as in small print on the last page of their price proposal) will be ignored. It's good to know that, at least according to The Analysis Group, LLC B-401726,B-401726.2 that asking a quoter to remove a custom indemnity clause counts as discussions, I would have thought that this would count as a clarification, in terms of "hi, offeror, I noticed you forgot to remove the indemnity clause from your quote, you probably used a template that you use for commercial business to business contracts, please remove this clause, if you don't remove it, the government will ignore it anyways, actually, since the government will ignore it anyways, don't worry about it, I'm not asking you for a revised quote/proposal, I'm just letting you know that your custom indemnity clause will be ignored." For example, if the FAR Changes clause is in a solicitation, and the offeror has "any changes to the contract will be bilateral" in small print somewhere hidden in their proposal, not in the introductory letter's exemptions section, and the government awards a contract, this doesn't mean that the Changes clause gets overridden by the "any changes to the contract will be bilateral" just because that was part of the proposal. If this sounds too simple and doesn't reflect how things work in real life, then the FAR counsel should change the rules to make everything stated above true.

Thanks for the case, C Culham. ... I don't know what's more frightening about The Analysis Group, LLC B-401726,B-401726.2, the fact that it seems to imply that FAR 15 requirements can reach into FAR 8.4 or that a quoter can be found unacceptable for having a hold harmless clause in their quote. I don't know if I ever received a quote with a hold harmless clause, but I have seen quotes with something like "the customer will pay $X amount if they cancel work within a certain number of days", and it's usually towards the end of a price quote, and I always just ignore it and pretend it's not there, since I only ask for a price in the price volume, and everything else is irrelevant. Even if the government awarded to SAIC and ignored the hold harmless clause, wouldn't that clause not apply anyways? What's the point of asking SAIC to remove it if it cannot legally be included in a government contract anyways? Like, why couldn't the government just realize that the hold harmless clause in SAIC's quote was just boilerplate text that they probably include in all of their commercial quotes that they forgot to remove it? I was under the impression that only FAR and agency clauses apply to a contract no matter that a quotation says.

Yes, this is fair, I would document in the file that asking for a $200 discount is more reasonable than asking for a $600 or $5,000 discount, so I would argue that the first quoter has a more reasonable chance at award than the other two quoters. Yes, this is fair, I would say that asking for a $600 discount is more reasonable than asking for a $5,000 discount and that the government gave the first quoter a chance to revise their quote also, so essentially the first and second quoters had a reasonable chance of award, while the third quoter did not. But maybe I would say "no money no contract" and ask the end user to add $200 to the requisition and award to the first quoter. This makes sense for really simple requirements, for more complex requirements, it wouldn't be as simple, and use of evaluation factors will turn bargaining into discussions to where the GAO might say something like "well, the government bargained their way into FAR 15 on this one, because their actions sure do look like discussions as described in FAR 15, even though the government used the term "bargain" in the solicitation."

It's difficult to overcome delusions. With FAR 1.102-2(c)(3)'s "All contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same", it's difficult to comprehend how not allowing all offerors/quoters who have a reasonable chance of award a chance to revise their proposal/quote is treating all offerors/quoters fairly. I'm not saying that the government can't wordsmith their way into allowing only one offeror/quoter to revise their proposal/quote, they can, I'm just saying that it's not as easy as "well, we'll just negotiate with one offeror just because we're in FAR 13, even though this offeror has a 95% chance of winning and the rest have 94% chance." Yes, please help.

Thanks for the case, Don. What I would take away from B-281512 is that essentially the government documented in their contract file that United was "not in the competitive range" and I would imagine that if D&D's revised price came to be above $438,098.00 (United's original price) that the government would have allowed United to revise their quote also.

Yes, exactly. SAP is not meant to allow for proposal or quote revisions, if an agency chooses to allow for proposal or quote revisions, they must follow FAR 15.306's (d) and (e) only, but not (a) through (c). In this sense, SAP is still good because of not having to follow FAR 15.306's (a) through (c) AND no required debriefings. And regarding FAR 15.306(d)(3), the "deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond" is not required either, because SAP does not require to have those terms in the solicitation.

Absolutely not, because FAR 13.106-2 is Evaluation of quotations or offers, so it does not matter if it's an RFQ or RFP. I just realized that I titled this thread FAR 13.103-2 instead of FAR 13.106-2, I changed the title to reflect FAR 13.106-2.

Interesting, thank you, Don. Now, I believe you, however I am desperately trying to find some case law to solidify this, i.e., I need to find case law that deals with a solicitation that tailored FAR 52.212-1 for SAP, to substitute the word discussions in that clause with another word, like "negotiate" or "bargain". The closest case that I could find so far is B-419705.2 Academy Leadership, LLC, this protest was sustained. Now, the solicitation for B-419705.2 Academy Leadership, LLC was 70CMSD21R00000001. I looked up 70CMSD21R00000001 on SAM.gov and looked through it to try to find FAR 52.212-1, but I could not find it, so it appears that the agency did not even include FAR 52.212-1 in the RFP. However, the RFP does state, in Attachment 08.07_RFP 70CMSD21R00000001.docx, that "ICE reserves the right to contact any Contractor at any point to request additional information regarding their proposals", which sounds to me pretty much the same as "The Contracting Officer will not negotiate with any quoters other than those of the Government’s choice" as in your tailored paragraph (g). Although, to be fair, I do see that the agency did further down on the last page of Attachment 08.07_RFP 70CMSD21R00000001.docx state that "The Government intends to award without discussions; however, reserves the right to hold discussions if the Contracting Officer deems it necessary." But still, "ICE reserves the right to contact any Contractor at any point to request additional information regarding their proposals" should have overridden the later use of the term "discussions" when reading the RFP as a whole, for example, the RFP explicitly stated "the rules regarding vendor communications described in FAR Part 15.3 shall not apply to this acquisition." But GAO still sustained this protest on the grounds that "not discussions" were not meaningful. If anyone knows of a case where the agency tailored FAR 52.212-1 for SAP and also did not contradict itself by using the term "discussions" elsewhere in the solicitation please let me know.

Right, but bargaining = discussions in terms of the bargaining needs to be meaningful AND all offerors who have a reasonable chance of receiving the award need to be bargained with.

Because of International Waste Industries B-411338: Jul 7, 2015: True, I see Discussions are negotiations that occur after establishment of the competitive range... Since FAR 13 does not require a competitive range, I guess if not intending to form a competitive range, it makes sense to not use the word "discussions". But still, even if I state in my FAR 13 RFP that "the agency may bargain with offerors", this really means "the agency may enter into discussions with offerors but skip the competitive range formation part".

Right, I hear that all the time... and I'm still trying to figure out my thought process for why I even wanted to initiate this thread... but I guess I'm struggling with the concept of "call it "allow offerors/quoters to revise their proposals/quotes" instead of discussions when using FAR 13" when the end result is the same... i.e., calling it "not discussions" does not magically make it so that the agency does not have to: 1) Make sure that these "not discussions" are meaningful; and 2) Make sure that the agency allows all offerors/quoters who have a reasonable chance of award an opportunity to revise their proposal/quote. So, my point is this: why spend time trying to find a synonym for "negotiate" or "discussions" when the end result is the same (the only difference is sending the exclusion from competitive range letter)? I understand the convention of not using the term "discussions" in FAR 13, but I don't understand why it's a convention, why can't it be called "FAR 13 Discussions"?

Hi, so, I'm probably thinking too hard about this, but actions of an agency in conducting FAR 13 procurements have more weight than what it says in the solicitation regarding discussions, correct? You see, I was reading this thread: In this thread, this was one of the comments: Everything in this page: https://www.wifcon.com/pd13_1062.htm, indicates that if an agency's actions allow proposal/quote revisions, "it is the actions of the parties that determines whether discussions have been held" - Priority One Servs., Inc., B‑288836, B‑288836.2, Dec. 17, 2001, 2002. So, I believe that even if a FAR 13 solicitation says "the agency may allow any quoter to revise its quotation but this will not be considered formal discussions as in FAR 15 in any way no matter what", that an agency still can't do "no matter what", i.e., an agency can still not form a formal competitive range (i.e., send "you are not in the competitive range" letters), but must still document the file as to why the agency is allowing one or more quoters to change their quotes, and why the agency is choosing not to allow all quoters to change their quote, and that explanation better be good, so the explanation will pretty much look similar to a formal competitive range determination explanation. Is my understanding correct?

Shouldn't agencies always send clarifications to apparent awardees asking if their proposed key personnel are still available (especially if the evaluation took a long time)? For example, if the agency in the case of COFC - No. 21-1966C (February 4, 2022) Golden IT v. US had asked the apparent awardee (right before making the award) if their proposed key person was still available and the apparent awardee said "no, they are not available anymore", the agency would have made award to Golden IT (probably, unless the agency opened "discussions" and allowed for quote revisions to allow for submission of revised key personnel). And another similar case, KPMG COFC No. 22-866: Even if the RFQ stated that a letter of commitment was required for each key personnel, I can't find any law that states that letters of commitment are legally binding between the employer and employee (the employee can just sign a letter of commitment without thinking and then not follow through after award), so even if the solicitation requires a letter of commitment, shouldn't the agency still clarify with the apparent awardee that their key personnel are available? And if a letter of commitment is not legally binding, what is the point of a letter of commitment anyways? I mean the only thing I can think of is that it may prevent offerors from proposing key personnel without that key person's consent. So, the way I see it is that there are only 2 answers that the apparent awardee must give in response to the agency’s request for clarification (which the agency sends right before making award) in order for award to be proper: 1) Yes, KeyPerson is still available and willing to start work upon award; or 2) KeyPerson is saying they are on the fence and might resign but maybe not, we are in communication with them. (But how will the Government have proof of this?) … If the apparent awardee responds with something like any of these then award will not be proper: 1) We can’t reach KeyPerson, they are not answering their phone and responding to email; or 2) KeyPerson left our company five days ago and is not available anymore; or 3) Apparent awardee doesn’t respond at all. Even if GAO (unlike COFC) says that offerors are required to notify the agency even after proposals are submitted but before award of key personnel unavailability, offerors may not comply with this GAO “rule”, so the agency should just send a quick email to clarify key personnel availability just in case. Has anyone here sent such a clarification before? If so, how did that work out for you?

I understand that this change will not change the price ceiling, but will it increase the burn rate? i.e., will the ceiling get reached faster? Did the Task Order have 2 senior researchers and now it has 3? This may be an issue.

I'm not a business owner but if I was I would like a tool which tells me how to make an end product be Buy American Act or Trade Agreements Act compliant. And if that tool was to be free that would be great.

To me recording an obligation means obligating funds in a computer... so if you issue a purchase order for nonseverable services or an item of supply on September 30th 2023 but the contractor does not accept the offer until October 5th 2023, I would imagine that the government is required to obtain FY23 funds to obligate to this now formed contract, unless the funds were already obligated in anticipation of acceptance. At the end of the day, either way counts as an obligation being properly recorded. As for severable services, the government will need to obligate FY24 funds... if FY23 funds were obligated on September 30th along with issuing the OF347 prior to acceptance then those will need to be deobligated since performance did not start before October 1st. If this is wrong then it's messed up and they need to re-write the red book to make this true.

Isn't this necessary though? Because even if the contractor does not provide written acceptance they can still begin performing, right? So how can they begin performing if there are no funds obligated?

Well, in the case of only the SOW needing to be changed, nothing. Unless the SOW is pasted the middle of the clauses, like section C would have a "custom clause" titled C-1 SOW and then the contents of the SOW are under that (I don't recommend this, as it's way easier to have the SOW be an attachment, for many reasons). But what if I made a typo in section B where in one of the CLINs I put the wrong period of performance? Then I would definitely need to modify the "offer to buy" somehow. Yes, the OF347 not having a block for the vendor countersignature is what is causing me to obligate funds without knowing if the contractor will even accept the order. Not all contract writing systems support the SF1449... I have no idea why that is... Would you use an SF1449 for a GSA FAR 8.4 buy? Or only for open market and FAR 16.5 buys? I guess I can do this even if it is commercial... but not on September 30th.

This makes sense in a perfect world without the constraints of a contract writing system. I usually process the award in the system and then send it out for contractor acceptance, meaning funds are obligated, and if I cancel it the funds in the system will go back to the program office account and a new requisition will need to be made before I can generate a new OF347... Perhaps I should not process the award in the system (and obligate the funds as a result) until I get acceptance, but if it's September 30th that's not good.

I'm talking about a situation where an OF347 is issued in response to an RFQ and then the contractor says that they won't accept the award because I forgot to add some part of their technical quote to the award's SOW. So now I must issue a modification to add some language to the SOW... but a modification to what? Surely not a contract, because a contract was not formed since the contractor did not accept the award or start performance yet.

As a practical matter, to illustrate how it looks like in real life, consider the SF30. Item 11 (I usually call these "blocks" in order to not confuse anyone with "line item (as in section B)" in a fast-paced conversation) is used for amendments and Item 13 is used for modifications. Also see Items 9 and 10. Item 14 is used to describe the amendment or modification. Yes, amendments are changes to a solicitation and modifications are changes to a contract. I suspect that Item 13 says "CONTRACT/ORDER" because in FAR part 2 Contract means, in part: So technically when a contract is not yet formed (no written acceptance or start of performance did not occur) in the case of a response to an RFQ the government may modify the "order that is not a 'contract' yet". I don't know if this happened to me before, it probably did, such as when there was a typo in the SOW and I had to modify the order before the contractor accepted the order. If there is no distinction between contract and order in terms of if Item 13's "CONTRACT/ORDER" means contracts or "orders that are already contracts" then saying "CONTRACT/ORDER" does not make sense, in that case it should only say "CONTRACT", since orders are contracts after they are accepted or performance starts. While I'm ranting, I might as well describe what I think about the term "Call Order" under agency awarded BPAs formed under GSA procedures as in FAR 8.405-3. I know we call the Tasks Orders awarded off of those type of BPAs "Call Orders" instead of "Task Orders" but they are really Task Orders, or they don't have names, so might as well call them Task Orders, because you issue Task Orders to GSA holders, you have a BPA so that you can issue Task Orders off of the BPA... Don't worry, a BPA won't magically turn into an IDIQ just because you call it a Task Order instead of a Call Order.

No, see WHR Group, Inc. B-420776; B-420776.2: In my original post's sample section M, the stated evaluation criteria is: M.1 Corporate Experience: The government will determine whether the offeror has sufficient experience based on the three past contracts that they described. The "rating" method, i.e., "how the stated criteria will be assessed" is not stated if using Choice 1, because saying "Acceptable means The offeror meets requirements" is the same thing as not disclosing how the stated criteria will be assessed. Choice 2, saying "Acceptable means all three past contracts are relevant" IS disclosing how the stated criteria will be assessed.

Because my sample Section M’s “sufficient experience” means “The government will determine whether the offeror has at least three years of experience cooking beef” however that definition is not stated in the RFP because FAR 15.304(d) says that it is not required to be. Does FAR 15.304(d)’s “The rating method need not be disclosed in the solicitation.” not apply to FAR 15.101-2 Lowest price technically acceptable source selection process? I understand that 15.101-2(c)(1) states “The agency can comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers” however I believe that this comprehensive and clear description can just be documented in the agency’s internal acquisition plan, and it does not need to be disclosed in the RFP. It appears to me that 15.304 applies to both trade-off and LPTA, because the beginning of FAR Subpart 15.3 - Source Selection says in FAR 15.300 that “This subpart prescribes policies and procedures for selection of a source or sources in competitive negotiated acquisitions.”… and I believe that negotiated acquisitions can be either trade-off or LPTA. B-414531 FreeAlliance.com, LLC is a good example of an LPTA procurement that through a quick glance has an RFP (W912CN-16-R-0026, which is found on SAM.gov with the inactive filter on) that doesn’t seem to describe in extreme detail as to what “the rating method is” although I’m sure it was in their acquisition plan, or if it wasn’t in the acquisition plan it was in the government’s mind, so if someone asked the government “can you comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers?” the government would answer “well, yes, we can.” But I do agree that it’s better to comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers in the RFP if using LPTA. And the other alternative is to use a technically acceptable corporate experience trade-off, if that’s even a thing.