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Showing results for tags 'discussions; source selection'.
Good day, Purpose: I am soliciting feedback on the following scenario for the purpose of understanding better how discussions held in a FAR Part 8 setting work and if the below scenario passes your sniff test as experienced 1102's. Scenario: a significant weakness or deficiency is identified in a quoter's submission in an FSS order (FAR 8.4). Past Performance was not an evaluation factor in the RFQ. To address this issue the Contracting Officer decides to enter discussions to allow the vendor opportunity to be eligible for award. Contracting Officer looks to the procedures laid out in FAR 15.306(d) for guidance on how to fairly conduct the discussions as FAR 8 is silent on the matter. The Contracting Officer understands FAR 8.404(a)'s principle regarding FAR 15 but in light of the need for discussions decides to use it for guidance. Contracting Officer reads the following in FAR 15.306(d): The Contracting Officer sends out discussion letters addressing only the required elements (deficiencies and significant weaknesses) without addressing regular weaknesses. Question: Does the Contracting Officer's act of not addressing weaknesses with any quoter constitute a problem/issue?
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?
Recent policy emphasizes the desire to conduct discussions during the source selection process (DFARS 215.300 Scope of subpart. Contracting officers shall follow the principles and procedures in Director, Defense Procurement and Acquisition Policy memorandum dated March 4, 2011, Department of Defense Source Selection Procedures, when conducting negotiated, competitive acquisitions utilizing FAR part 15 procedures.) The DoD Source Selection Procedures, Chapter 3, paragraph 3.3.1 states in part "The SSA may choose, in rare circumstances, to award a contract on the basis of the initial proposals received without conducting discussions..." FAR 15.306 addresses exchanges with offerors after receipt of proposals, DFARS 215.306 indicates for procurements over $100M the KO should conduct discussions. NMCARS provides no amplifying information on discussions. Current policy is based on the assumption that through discussions, the Government will receive more efficient competition and better pricing. In most circumstances I would agree, however…. Consider a large (over $500M) Cost Reimbursable, Multiple Award IDIQ contract, where cost is established utilizing a cost model. The model provides a set number of hours per labor category, fixed subcontract amount, fixed ODC amount etc…the offeror need only provide ceiling labor and indirect rates (and the basis of the establishment of these rates). The cost analysis/realism consists of validation of the rates used in the model and realism adjustments where needed. The labor and indirect rates are the cost drivers for the contract, typically substantiated by FPRA’s or audits etc. Capped rates have been mandated to reduce risk to the Government. In the event evaluations clearly established no weakness/deficiency with the requisite number of low cost proposers, why would the Gov’t have discussions? Discussions should be meaningful - if there is nothing to discuss, why go through a competitive range determination and open up potential pre award protest issues? I understand we all have to drink a little policy kool-aide – but we also need to be mindful of our taxpayer dollars and limited resources! Upper management is not inclined to move ahead without discussions, no matter the argument. I’d appreciate any comments!