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  1. These are all good points. I can understand why there is no GAO decision with the fact pattern I proposed. The agency's action must be reasonable, and it would be extremely difficult to show that an offeror with "unsatisfactory" Past Performance was somehow the "best value."
  2. Has anyone ever seen a GAO or court decision upholding an agency's decision to make award to an offeror rated unsatisfactory (or "No Confidence") for past performance? I know it sounds ridiculous, but some agencies put in their adjectival ratings scale/definitions that "unsatisfactory" makes the proposal unawardable, and others do not. Well, in the scenario where the RFP did not state that "unsatisfactory" made a proposal unawardable, and if the agency chooses not to open discussions, can the agency, in its source selection decision trade-off narrative, still make award to that offeror? I have never seen this done, but I'm thinking this question must have come up before at GAO or the courts.
  3. I had to go out of town for 2 months suddenly, but I'm back now. Thanks to all who responded. ji20874's observation that discussions cannot have been concluded/done properly because the price issue was not pointed out to the offeror makes sense to me.
  4. Due to the circumstances, if the agency were to do a second round of discussions with the one offeror in the competitive range of one, it is impossible for that offeror to bring its total price under the "ceiling" and still remain technically acceptable. I did find this GAO decision, but it involved a IFB not a RFP, see https://www.gao.gov/assets/b-295533.2%2Cb-295533.3.pdf. This is SOS International from 2005. "Where solicitation provided for award of contract on indefinite quantity basis, bid that offered larger quantity than maximum specified in solicitation is responsive, where bid did not limit government’s right to purchase only up to the maximum quantity specified in the solicitation or otherwise condition the firm’s pricing or performance on the government’s buying the larger quantity." "OVERSTATED MAXIMUM QUANTITY" "SOS argues that McNeil’s bid was nonresponsive because it was based on an incorrect maximum number of hours for CLIN 0003. However, a bid based on a larger quantity than is required by the solicitation is nevertheless responsive, so long as it is not conditioned on the government’s award of a quantity larger than that called for under the solicitation, and the solicitation does not preclude award of a quantity smaller than the maximum quantity specified. Charles V. Clark Co., Inc, B-196712, Mar. 12, 1980, 80-1 CPD ¶ 194 at 2-3. Here, as noted, this is an IDIQ contract under which the government is obligated to order only the minimum guaranteed quantities, but may order additional quantities, up to the maximum specified in the solicitation. Thus, the agency is obligated to purchase the 1,000 hour minimum quantity under CLIN 0003, but may elect to purchase a larger quantity up to the specified maximum of 50,000 hours. As McNeil’s bid did not condition its obligation to perform on the government’s ordering the erroneous maximum quantity (66,000 hours), it follows that the agency could order any quantity up to the correct lower maximum of 50,000 hours without changing McNeil’s performance obligation, and would not be obligated to order the additional 16,000 hours specified in McNeil’s bid. McNeil’s bid’s inclusion of the incorrect maximum quantity for CLIN 0003 therefore was immaterial and did not render the bid nonresponsive." Thoughts?
  5. My concern is, since the Solicitation informed offerors that the agency would evaluate their total price for the IDIQ, and the Solicitation set forth a "ceiling" for the IDIQ, maybe offerors relied upon that "ceiling" in figuring out their total price. If they had known that the agency would raise the ceiling after award, maybe they would have bid differently. It is an issue of fairness and even playing field.
  6. There are 5 offerors. 4 are technically unacceptable to such an extent that they are not capable of being made acceptable without a complete rewrite. These 4 did not make it into the competitive range. There was only 1 technically acceptable offeror, however, their price was way higher than the "ceiling" of the IDIQ.
  7. Assume that the 4 technically unacceptable offerors were so "technically unacceptable and not capable of being made technically acceptable without a complete rewrite." Assume that the program office desires to move forward with awarding to the offeror proposing $172 million, that they do not want to amend the solicitation, redo the competitive range and do discussions, and so forth. They just want to make award now. If the contract type is an IDIQ, is it possible to make award to an offeror whose proposal exceeded the "ceiling" in the Solicitation, or is that offeror non-compliant/non-conforming/ineligible for award?
  8. Say the Solicitation is to award a Single-Award IDIQ. There is no task order included in this Solicitation. There is no Sample Task Order. The Solicitation stated that the maximum ceiling price/amount for this IDIQ was $148 million. For some unknown reason, the Solicitation included CLINs, even though this is a IDIQ. The Solicitation instructed offerors to fill out a pricing spreadsheet, and it required pricing each CLIN for each option year (base year plus 4 option years). There were 5 timely offerors/proposals. 4 of them are technically unacceptable or otherwise ineligible for award. So there was a competition range of one. Discussions were already held. No one pointed out to the offeror that its total price of $172 million exceeded the maximum ceiling set by the Solicitation. The final revised proposal has been received, and the price remains unchanged. Could the agency just make award to this offeror, and when the $148 million ceiling is hit (say in option year 2), just not exercise the options for years 3 and 4? Or is the agency required to revise the Solicitation and allow for revised proposals from all 5 offerors?
  9. Ah, that's it: T&M is a pricing arrangement, not an ordering arrangement. Thank you.
  10. FAR 16.601 address T&M contract type, and FAR 16.602 addresses Labor-Hour contract type. I do not see any requirement here to include a guaranteed minimum in these contract types. Yet I see examples of solicitations in the past that include a guaranteed minimum. Is there any requirement to include a guaranteed minimum? If you don't have a guaranteed minimum, is the contract illusory, as the agency could just order nothing?
  11. Thanks, Vern. Ok, I see how to an RFP can be written to use two techniques.
  12. The example RFP that I posted on Wednesday did not use two techniques. It evaluated all of the market segments the same way. My question is, could you make an RFP that does use two techniques? Your on-the-spot language answers my question. Thank you.
  13. Yes, that is my question: could you use, say LPTA, to select the winners for one market segment, but use, say Trade-Off, to select the winners for the other market segments? ji20874 thinks there is no problem. Note, in that Air Force RFP, they did not use two different methods to select the winners. But I'm wondering, could you do that? And if you can, does anybody have an example solicitation of where this was done?
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