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LPTA Award - No Discussion interpretation


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Question: I am a contracts intern and I have completed a Lowest Price technically Acceptable (LPTA) source selection in which only one offeror was technically acceptable, out of three (3), and by coincidence was also the the lowest price. Prior to award is it improper to ask the winning Contactor if he would consider lowering his proposed price? His current price is fair and reasonable. I'm just not satisfied unless I know I have got my lowest price. I dont want to jeopardize what has already been an easy procurement with a protest, and I dont want to open up discussions with the other contractors who were not technically acceptable. What are your thoughts?

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BoomerMan,

There is likely a really short schoolhouse answer to your question, but I personally don't find that answer very satisfying.

Rather than waxing poetic about why I think ratcheting down the price of the sole technically acceptable (and presently awardable) offeror is bad form and a potentially risky endeavor, I'd like to better understand your circumstances. If you're willing to answer the following questions, it might help (though understand some very bright and experienced folks here may find these questions completely irrelevant).

(1) How does the apparent successful offeror's price compare to the IGE?

(2) For the following two questions, indicate where you stand on the continuum between STRONGLY AGREE to STRONGLY DISAGREE.

(a) To become technically acceptable, both currently technically unacceptable offerors would have to substantially rewrite their proposals.

(B) There was a reasonable expectation, based on market research or other assessment, that two or more responsible offerors, competing independently, would submit priced offers that satisfy the solicitation's expressed requirement.

(3) If your answer to 2a & 2b is the same and is closer to the strongly agree end of the spectrum, do you have any thoughts on the reason for the disconnect?

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Guest Vern Edwards

I have a more-to-the-point question: Did you consider conducting discussions with the two offerors who submitted unacceptable technical proposals, telling each what it had to do to become acceptable, and then giving all offerors an opportunity to submit final proposal revisions?

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I have one more to the point question: Did you consider conducting discussions with the two offerors who submitted unacceptable technical proposals, telling each what it had to do to become acceptable, and then giving all offerors an opportunity to submit final proposal revisions?

I commend your efforts or instincts to try to negotiate a better deal for the US Taxpayers. But I had really had similar questions in my mind last evening as the other two gentlemen. I wondered if there was some reason why the other two firms couldn't become technically acceptable and/or if they couldn't all competitively lower their prices if you went back to all three or at least two of the three. It depends upon the specifics (how close the pricing is, what it would take to become technically acceptable, etc.).

Since this is an LPTA acquisition, I'm assuming that getting the best possible price for a product or service that simply meets your requirement is your objective. So if two or all three firms could supply a product or service that meets your minimum requirements, why not negotiate with more than one? Of course, I don't know the specific facts, here.

In theory, if the other two firms are technically incapable of becoming compliant or price competitive, it might be possible to establish a competitive range of one and ask for a better deal. However, that might be risky, too. There's a possibility that the firm might not only refuse to reduce its price but could possibly withdraw or raise its price. Maintaining price competition is generally preferred, where practical.

Reminds me of the time that our secretary called up and negotiated Walmart down 10 cents for three 59 cent Magic Markers for marking concrete test cylinders.

That would have been okay I suppose, but she had physically sent the lab boys downtown in a pickup truck to check prices of at least three stores, then come back and tell her, first!!

I'm not equating your efforts with that folly - it just brought back memories of the $100 or more effort by 3 people and expense, including 2 trips to the local town in a government pickup truck, to buy three markers for $0.49 for a savings of $0.10. Then she used a "Form 44" that cost the government an average of (so I'm told) $75 to process and pay for the markers. Even if she had allowed them to use the petty cash fund, she would have made them come back to get it. I don't guess any of them thought to simply call 3 stores, if that was really necessary (it wasn't)...

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I use that story to illustrate that it is commendable and preferable to always look out for the taxpayers. Just don't be penny wise and pound foolish in doing it. Consider the cost/benefit ratio and risks involved.

Maybe the effort, time and cost to keep 3 firms in the running isn't worth the possible savings here, maybe it is...

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The question reminded me of the article in the February 2011 issue of Contract Management magazine entitled, "FAR 15.4, Contract Pricing - Requiring Data Other Than Certified Cost or Pricing Data: Unveiling the Ingredient Costs of the Recipe."

The article is at http://www.ncmahq.org/Publications/CMMArti...ItemNumber=8976.

I found that it focused more on the exceptions than the rule, all too often talked about the FAR "prescribing" actions that a close reading shows the FAR simply allows under certain limited circumstances but does not require, and used jumbled or incorrect FAR references.

The author seemed to not only look for authority to challenge a competitive price, but also to believe that such challenges are FAR requirements with broad rather than limited applicability.

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Boomerman - Not sure if you are DoD, but if you are, read Shay Assad's memo dated 24 Nov 2010 regarding Improving Competition in Defense Procurements. This takes away our ability to use FAR 15.403-1©(1)(ii) or (iii) to determine that the offered price is based on adequate competiton when only one offer is received. Although you did receive more than one offer, was there adequate competition if none of the other offers could meet the Government's requirement?

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