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Greetings,

I was reading this discussion: Unreasonable Price, Responsibility Determination, 8a Contractor

http://www.wifcon.com/arc/forum587.htm, which I found to be very insightful.

As I relate this discussion to a current situation I have on procurement for a service which was done competitively, LPTA ? Two proposals were received one from the incumbent contractor. The incumbent contractor propose price was significantly high (42% above the IGE), the other contractor proposed prices was significantly low (-38% below the IGE) -- the IGE is substantiated. Now both contractors are Large Businesses. The following actions were done: (1) we had requested data other than certified cost or pricing data, which both contractors provided. (2) We held meaningful discussions with both offerors regarding its price proposals from not only total price, but the prices for individual line items. Both contractors stood by their pricing and no changes were made. It appears that we may award to the low; however, I have my doubts on this? though the information provided by the low bidder (i.e. data other than certified cost or pricing data), more specifically, cost breakdown lead our agency to believe that their price is reasonable (notice I only said reasonable) is there other steps I can take to ensure the awarding this to the low bidder does not pose any risk to the contract. If the company was a small business I could ask for a Certificate of Competency from SBA; however, being they are large are there any formal actions I can take - Determination of Responsibility or a Financial Capability Assessment, if so what statute gives the Government the right to request such information from a large business?

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Greetings,

I was reading this discussion: Unreasonable Price, Responsibility Determination, 8a Contractor

http://www.wifcon.com/arc/forum587.htm, which I found to be very insightful.

As I relate this discussion to a current situation I have on procurement for a service which was done competitively, LPTA ? Two proposals were received one from the incumbent contractor. The incumbent contractor propose price was significantly high (42% above the IGE), the other contractor proposed prices was significantly low (-38% below the IGE) -- the IGE is substantiated. Now both contractors are Large Businesses. The following actions were done: (1) we had requested data other than certified cost or pricing data, which both contractors provided. (2) We held meaningful discussions with both offerors regarding its price proposals from not only total price, but the prices for individual line items. Both contractors stood by their pricing and no changes were made. It appears that we may award to the low; however, I have my doubts on this? though the information provided by the low bidder (i.e. data other than certified cost or pricing data), more specifically, cost breakdown lead our agency to believe that their price is reasonable (notice I only said reasonable) is there other steps I can take to ensure the awarding this to the low bidder does not pose any risk to the contract. If the company was a small business I could ask for a Certificate of Competency from SBA; however, being they are large are there any formal actions I can take - Determination of Responsibility or a Financial Capability Assessment, if so what statute gives the Government the right to request such information from a large business?

Have you considered a pre-award survey? If not, read FAR 9.105 and 9.106.

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ipod24,

I think you have the wrong idea. A contracting officer is required to make a determination of responsibility for prospective contractors, whether they are large or small. Upon determining a small business concern nonresponsible, the CO is required to refer the matter to the SBA. The SBA then gives the small business concern the opportunity to apply for a COC. The CO doesn't ask the SBA for a COC.

In any event, you seem to have doubts as to the financial responsibility of a prospective contractor. Follow the procedures in FAR 9.105 and 9.106 (and DFARS 232.072 if you are in DoD) to obtain the information that you need to make a determination of financial responsibility.

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Guest Vern Edwards
[A]re there any formal actions I can take - Determination of Responsibility or a Financial Capability Assessment, if so what statute gives the Government the right to request such information from a large business?

There are two things that you can and should do.

First, with regard to the incumbent, they may be proposing a high price because they think they are in such a favorable position that they can get away with charging more. You can conduct discussions with them, show them the government estimate, and tell them that their price is too high and that you do not consider it to be fair and reasonable. Tell them that they must either show you that the government estimate is wrong or reduce their price to an amount that you consider to be fair and reasonable.

Second, with regard to the other offeror, you can show them the government estimate and tell them that their price is so low that it suggests that they do not understand the requirement. You can tell them that they must either show you that the government estimate is wrong or acknowledge that they have submitted a below-cost proposal. Tell them that if they cannot show you that the government estimate is wrong or that they have intentionally proposed a price that is below the cost of performance, then you may decide that their proposal is technically unacceptable on grounds that they do not understand the work and that their proposal is too risky. If they tell you that they have intentionally proposed a price that is below the cost of performance, then tell them that they must show you that they can perform at a loss without defaulting or performing poorly, and that if they can't prove that they are financially capable you might declare them to be financially non-responsible.

Your authority for asking for information about their cost estimate is FAR 15.403-3. Your authority for asking for financial responsibility information is the last sentence of FAR 9.102? and FAR 9.105-1.

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...The incumbent contractor propose price was significantly high (42% above the IGE), the other contractor proposed prices was significantly low (-38% below the IGE) -- the IGE is substantiated... The following actions were done: (1) we had requested data other than certified cost or pricing data, which both contractors provided. (2) We held meaningful discussions with both offerors regarding its price proposals from not only total price, but the prices for individual line items. Both contractors stood by their pricing and no changes were made.

I was waiting for the answers to the specific question that ipod24 asked before expressing some doubt about the effectiveness of price discussions already conducted, which were described as "meaningful". If "no changes were made", I wonder if the government made a very strong case for questioning the reasonableness of either proposed price. You said that the government's estimate for the required services is "substantiated".

If you are still concerned about the low proposer's price, I wonder if the government probed the firm's understanding of and technical approach to providing the required service or if they specifically indicated concerns that the price might be so low as to face a risk of failure (as Vern indicated as performing poorly or defaulting), while also taking into account that it is a large business.

The incumbent's final, unchanged price is 42% higher than what the government believes is a substantiated estimate of reasonable cost. I seriously wonder how strongly the government challenged the reasonableness of the price or if there was much bargaining or persuasion to lower the price.

I agree with Vern's advice concerning a negotiation approach with each of the two firms.

Bottom line seems to lean toward the conclusion that the government still isn't satisfied that either price is fair and reasonable or that if the lower priced offeror "can perform at a loss without defaulting or performing poorly", and that the government isn't satisfied that the lower priced firm is financially capable to endure performing at a loss.

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Tell them that if they cannot show you that the government estimate is wrong or that they have intentionally proposed a price that is below the cost of performance, then you may decide that their proposal is technically unacceptable on grounds that they do not understand the work and that their proposal is too risky.

Vern,

Wouldn't the solicitation have to say that "understanding of the work" would be evaluated in determining technical acceptability?

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Guest Vern Edwards

There would have to be some kind of technical factor in the solicitation that would be the basis for evaluating the risk of the offeror's proposed approach. The poster said that it is an LPTA source selection, which indicates that there is some kind of technical acceptability factor. Based on that factor, I would consider the risk of the offeror's approach. See the GAO's decision in Government Acquisitions, Inc., B-401048, 2009 CPD ? 137, footnote 14:

As this Office has stated, evaluating the risk associated with an offeror's proposed approach is generally appropriate, whether or not risk is specifically stated as an evaluation factor, because consideration of risk is inherent in the evaluation of technical proposals. See, e.g., Communications Int'l, Inc., B?246076, Feb. 18, 1992, 92?1 CPD para. 194 at 6.

I would simply say that the low price raised questions in our mind about the offeror's approach and I would ask the offeror for more information about its approach during discussions. I would rely on that information, not on the low price in and of itself, to make a determination as to whether the risk indicated that the proposal was technically acceptable.

You would have to write it up carefully, but if you know what you're doing and the offeror's information supports you, you should be able to conclude that the approach indicates a lack of understanding that makes the risk is too high for technical acceptability. The evaluation factor is risk, not understanding per se.

Of course, eliminating the low price guy in this case would leave an incumbent whose price is too high.

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There would have to be some kind of technical factor in the solicitation that would be the basis for evaluating the risk of the offeror's proposed approach. The poster said that it is an LPTA source selection, which indicates that there is some kind of technical acceptability factor. Based on that factor, I would consider the risk of the offeror's approach.

I would simply say that the low price raised questions in our mind about the offeror's approach and I would ask the offeror for more information about its approach during discussions. I would rely on that information, not on the low price in and of itself, to make a determination as to whether the risk indicated that the proposal was technically acceptable.

You would have to write it up carefully, but if you know what you're doing and the offeror's information supports you, you should be able to conclude that the approach indicates a lack of understanding that makes the risk is too high for technical acceptability. The evaluation factor is risk, not understanding per se.

Of course, eliminating the low price guy in this case would leave an incumbent whose price is too high.

So, if the government cannot determine if the risk indicates that the proposal is technically acceptable for the lowest priced offer and the other offer is clearly unreasonable, it would seem to me that another round of discussions is warranted. The first round apparently didn't produce satisfactory results. Even if the government determines that the risk is unacceptable for responsibility determination based upon unacceptable risk, the only other price is (apparently) not fair and reasonable. That is reason enough to try to salvage this effort with further discussions.

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I've found a general reluctance on the part of many government personnel to bargain for better pricing during source selection discussions. Even in this forum, there seems to be some trepidation throughout many threads.

If the current solicitation is based upon award to the lowest priced, technically acceptable offer, then one would think that price is important enough to try to persuade a firm that its price is unreasonably high and to understand the implications of a price that one thinks is uncomfortably low. I've been involved with enough instances where extremely low prices resulted in poor performance, poor cooperation, lack of performance and default. Dealing with all that is a major pain in the Gazoo and requires a lot of extra time and resources. It's better to find out as much as possible before accepting a high risk, low offer and to take advantage of the discussions process the extent possible.

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I've found a general reluctance on the part of many government personnel to bargain for better pricing during source selection discussions. Even in this forum, there seems to be some trepidation throughout many threads.

If the current solicitation is based upon award to the lowest priced, technically acceptable offer, then one would think that price is important enough to try to persuade a firm that its price is unreasonably high and to understand the implications of a price that one thinks is uncomfortably low. I've been involved with enough instances where extremely low prices resulted in poor performance, poor cooperation, lack of performance and default. Dealing with all that is a major pain in the Gazoo and requires a lot of extra time and resources. It's better to find out as much as possible before accepting a high risk, low offer and to take advantage of the discussions process the extent possible.

First off, I most definitely want to thank you all for providing insightful and educated feedback on matters/situations I have posted in the past. It has continuously broadened my knowledge in the Acquisition community. Vern, thank you for being candid with your responses, and to the others as well - much respect.

So going back to this situation on my requirement; just an update... regarding the two proposals with a huge variance in pricing (see past postings for information) -- the incumbent who was high lost the contract, and after providing a post-award debrief filed a protest claiming the awardee could not possibly do the job at the price it had proposed. Knowing I have done all I can (1) Requested a Determination of Responsibility (2) Performed price and cost analysis (3) Past performance evaluation, among other actions to determine if the awardee posted a risk to the contract... I guess it was bound to happen. This is kind of a downer... even if you think you've done all you can to maintain a steady acquisition process... there are always factors/events/actions that you cannot control... Keep you inform on the outcome as far as the incumbent?s argument on the matter and whether the protest will be sustained or not.

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  • 2 years later...

All,

Please correct me if I'm wrong, but contractor responsibility determination is not concerned with the contractors bid/proposal. Instead, the focus is on if the contractor meets certain legal standards. I believe this post is referring to the reasonableness of the offered price. One is concerned with the company itself (business standards, ethics, financial capability, etc..) and one is used to determine if the contractor's proposal is fair and reasonable. Two different "things."

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Responsibility addresses a number of issues involving the contractor's ability to execute its proposal at the proposed price as well as its compliance with laws and regulations. Take a look at the standards the contractor must meet to be determined “responsible".

9.104-1 -- General Standards.

To be determined responsible, a prospective contractor must --

(a) Have adequate financial resources to perform the contract, or the ability to obtain them (see 9.104-3(a));

(b ) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;

(c ) Have a satisfactory performance record (see 9.104-3(b ) and Subpart 42.15). A prospective contractor shall not be determined responsible or nonresponsible solely on the basis of a lack of relevant performance history, except as provided in 9.104-2;

(d) Have a satisfactory record of integrity and business ethics (for example, see Subpart 42.15);

(e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors). (See 9.104-3 (a).)

(f) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them (see 9.104-3(a)); and

(g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations (see also inverted domestic corporation prohibition at 9.108).

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The keys words are " ability to execute" and " comply with laws and regulations." Neither of these have to do with if the proposed price is too high or low. Under a firm-fixed priced contract, if a contractor proposes to complete the project for a price the government believes is too low, so what. As long as the contractor has the financial means to complete the project even if it results in a loss. While "buying in" is always a concern, if the contract specifications are clear and precise it's not an issue.

https://www.fas.org/sgp/crs/misc/R40633.pdf

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You are right, the key words include "ability to execute". While the contractor can buy in, the contracting officer must decide whether or not the contractor can perform the contract given its very low price. If the contracting officer does not think the contractor can perform at the buy-in price, he or she must determine the contractor to be non-responsible.

Let me provide a couple of examples to illustrate that compliance with law and regulation is not the only consideration you make when facing a “buy in” circumstance.

First, assume you need a contractor to provide security services for a Navy ship visiting a middle-eastern port. The price is 20% below the nearest competitor’s price and 35% below the government estimate. You ask the contractor to explain how he or she could obtain the barges, barriers and services needed to execute the contract per the SOW. The contractor is unable to demonstrate that it has identified sources and prices for the security barges and for the tugs needed to maneuver the barges, but the contractor insists that its competitors are greedy and making too much profit. Do you determine the contractor to be responsible because the contractor has never run afoul of a US or foreign law or regulation affecting port security services?

Next, assume you are seeking to contract for household good shipment (HHG) services. The price is well below competitors’ prices and 10% below the existing contract. When you speak with the contractor, you discover that it lacks experience and sources associated with shipping HHG overseas. The contractor tells you not to worry because he has relatives located overseas who know sources that can handle the shipments. What is your decision concerning responsibility?

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Napolik, looking at the responsibility standards, which one would you rely upon to determine the contractor in either of your two hypos was not responsible? Why would you determine the contractor was not responsible instead of determining that its proposal was technically unacceptable?

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Guest Vern Edwards

I'm not entirely sure what Locke is getting at. Locke wrote:

Please correct me if I'm wrong, but contractor responsibility determination is not concerned with the contractors bid/proposal. Instead, the focus is on if the contractor meets certain legal standards.

Not so. The legal standards for responsibility are directly linked to an offeror’s bid or proposal. See FAR 9.104-1:

To be determined responsible, a prospective contractor must--

(a) Have adequate financial resources to perform the contract, or the ability to obtain them (see 9.104–3(a));

( b ) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;

* * *

(e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors) (see 9.104–3(a));

(f) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them (see 9.104–3(a))….

Questions about responsibility do not spring from a vacuum. Questions about responsibility arise from the proposal at hand. The issue is whether an offeror is responsible enough (able, capable) to do what it proposed to do, when it proposed to do it, at the price that it proposed. Questions about financial responsibility often arise in the context of a particular proposed price.

Locke said:

The keys words are "ability to execute" and " comply with laws and regulations." Neither of these have to do with if the proposed price is too high or low. Under a firm-fixed priced contract, if a contractor proposes to complete the project for a price the government believes is too low, so what. As long as the contractor has the financial means to complete the project even if it results in a loss. [Emphasis added.]

The first highlighted statement is nonsense. In the second, the writer contradicts himself. See Bannum, Inc. GAO Dec. B-408838, 2013 CPD ¶ 288:

[W]hether an offeror can perform at its proposed price concerns the offeror's responsibility. Reliable Trash Serv., Inc., B–258208, Dec. 20, 1994, 94–2 CPD ¶252 at 5.

What appears to be a below-cost proposal might indicate that an offeror will have to perform at a loss, which might raise a question about whether it has the financial capacity to absorb the loss. In the absence of a below-cost price, doubts about financial responsibility might not arise. (Price realism need not be an evaluation factor in order to consider an offeror's financial responsibility in the face of a below-cost price. See Bannum, cited above.)

It is the proposal that prompts the determination. The determination must reflect the requirements of the proposal. This is a very old principle in Government contracting, dating back to as early as the late 1960s.

While a bid or proposal may prompt questions about the offeror's responsibility, the properties of the bid or proposal itself are not matters of responsibility. Whether a bid is responsive or not, whether a proposal is acceptable or not, how good it is compared to others, whether the price is fair and reasonable, and whether the price is below cost, are not matters of responsibility.

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Guest Vern Edwards

Retreadfed asked Napoli:

Why would you determine the contractor was not responsible instead of determining that its proposal was technically unacceptable?

One answer is that a determination of “technical acceptability” may be tantamount to a determination of nonresponsibility.

The GAO has held many times that an agency can use a “responsibility-type factor” (see FAR 9.104-1), such as financial responsibility, as an evaluation factor in source selection. Moreover, if an agency uses a responsibility-type factor to make a comparative assessment of offerors (e.g., to determine the relative quality of past performance), the decision not to award to a small business offeror based on such a consideration need not be referred to the SBA for certificate of competence consideration. It was this line of decisions that prompted the shift from LPTA to "best value" source selection by some agencies, such as DLA, in the mid-1980s.

When conducting an LPTA source selection, if responsibility-type factors are included among the technical evaluation factors, there is no comparative assessment of offerors on the basis of such factors. Each offeror is technically evaluated pass/fail on the basis of common standards. The only basis for comparison is price. Thus, if an agency determines that a proposal submitted by a small business is technically unacceptable based on such a factor, the decision is tantamount to a determination of nonresponsibility and the agency is required to refer the offeror to the SBA for certificate of competency consideration.

The key GAO decision explaining all of this is PHE/Maser, Inc., 70 Comp. Gen. 689, GAO Dec. B-238367, 91-2 CPD ¶ 210, in which GAO sustained a protest because the Air Force did not refer a small business for a certificate of competency when the offeror was denied a contract based on an evaluation responsibility-type factors that did not entail a comparison to other offerors.

A determination regarding an offeror's intent or ability to comply with a material provision of a solicitation relates to that offeror's “capability, competency, capacity, credit, integrity, perseverance, and tenacity” to perform the contract. See 15 U.S.C. § 637( b )(7). We have specifically held that the determination of whether an offeror can comply with the “Limitations on Subcontracting” clause “is a matter of responsibility to be [finally] determined by the SBA in connection with its Certificate of Competency (COC) proceedings.” Stemaco Prods., Inc., B–243206, Mar. 27, 1991, 91–1 CPD ¶ 333; see also Little Susitna, Inc., B–244228, supra.

Here, the Air Force did not conclude that PHE/Maser failed to offer to comply with the “Limitations on Subcontracting” clause. Rather, the Air Force simply decided that PHE/Maser would not comply with the RFP requirements in that regard. Thus, the Air Force determined that PHE/Maser was nonresponsible on this basis. See Standard Manufacturing Company, Inc., B–236814, Jan. 4, 1990, 90–1 CPD ¶ 14 (whether contractor will meet its obligations to perform is a matter of responsibility).

In short, the Air Force improperly based its assessment of “high risk” regarding PHE/Maser's proposal on PHE/Maser's financial capability and the Air Force's concern that PHE/Maser would not comply with the “Limitations on Subcontracting” clause without referring the matter to the SBA. Both of these bases for rejecting the proposal are matters of responsibility which, under the Small Business Act, must be referred to the SBA prior to a procuring agency's rejection of a small business proposal. Our decision in this regard is not affected by the fact that the Air Force did not label as “responsibility” its determinations regarding PHE/Maser's financial capability and compliance with the “Limitations on Subcontracting” clause. See Clegg Industries, Inc., supra. An agency may not avoid the requirements of the Small Business Act by labeling as “risk assessments” what are, in effect, responsibility determinations.

This rule is reflected in the last sentence of FAR 15.101-2( b )(1). However, FAR is misleading in seeming to say that it applies only to past performance. That is not true. It applies to all responsibility-type factors. See Feldman, Government Contract Awards: Negotiation and Sealed Bidding, Section 6:14, Evaluation factors versus definitive responsibility criteria (2013):

Where the agency has deemed a small business' proposal as technically weak or unacceptable under the RFP's evaluation criteria, the GAO has said that this decision is not a responsibility determination, and that the procuring agency has no duty to refer the matter to the SBA. On the other hand, if the agency uses traditional responsibility factors as technical evaluation criteria, and determines acceptability on a pass/fail basis or an equivalent method, this decision does involve offeror responsibility and rejection of such a small business offeror generally must be referred to the SBA. [Footnotes omitted.]

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Vern,

It appears that the CRS Report for Congress would disagree with your statement “Not so. The legal standards for responsibility are directly linked to an offeror’s bid or proposal. See FAR 9.104-1.”

Seeing in their January 4, 2013 report they state, “Responsibility determinations are sometimes confused with responsiveness determinations; evaluation of past performance in negotiated procurements; and qualification requirements. However, all these focus upon contractor’s bids, not the contractors themselves.”

Furthermore, the report goes on to say “While responsibility is determined when the contract is awarded, responsiveness is determined when the bid is opened.”

Per FAR Part 9.105-2(a)(2), If the contracting officer determines that a responsive small business lacks certain elements of responsibility, the contracting officer shall comply with the procedures in Subpart 19.6. When a Certificate of Competency is issued for a small business concern (see Subpart 19.6), the contracting officer shall accept the Small Business Administration’s decision to issue a Certificate of Competency and award the contract to the concern.

Based on the responses from this post, if the CO determines the contractor to be non-responsible because their proposed price was either too high (price analysis) or too low (cost realism), the CO would stop the evaluation process and contact the Small Business Administration (SBA)?

Under a competitive firm-fixed price contract, if the government is concerned that the proposed price is too low (based on the IGE), so what. First, price analysis is used to determine if the price is too high, not to low. Second, there is nothing illegal about a contractor willing to complete the project at a cost the government believes is too low.

Under 9.104-1, before award, the CO must determine that the prospective contractor meets the conditions (a) – (g).

(a) Have adequate financial resources to perform the contract, or the ability to obtain them. This asks if the contractor has the financial means to complete the project even if it results in a loss to the contractor. Not is their proposal responsible.

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Guest Vern Edwards

Locke:

I don't rely on the Congressional Research Service (CRS) for input on Government contracting. The attorney-researchers there are competent at what they do, research, but they are not experts in Government contracting and they do not write for experts. I do my own research.

In my opinion, you did not read what I wrote carefully. For instance, at the end of the second post I said:

While a bid or proposal may prompt questions about the offeror's responsibility, the properties of the bid or proposal itself are not matters of responsibility. Whether a bid is responsive or not, whether a proposal is acceptable or not, how good it is compared to others, whether the price is fair and reasonable, and whether the price is below cost, are not matters of responsibility.

I think that is clear enough to most people.

You ask me the following rhetorical question:

Based on the responses from this post, [i'm not sure to what post you refer] if the CO determines the contractor to be non-responsible because their proposed price was either too high (price analysis) or too low (cost realism), the CO would stop the evaluation process and contact the Small Business Administration (SBA)?

Why did you ask me that? Nothing in either of my posts should have prompted you to ask me that. I would not expect a CO to determine an offeror to be nonresponsible because their price was too high or too low. But if an offeror's price was too low (i.e., below the cost of performance), I would expect the CO to investigate and determine whether the otherwise successful offeror was financially responsible -- could absorb the loss and still perform. If the CO found the otherwise successful offeror to be financially nonresponsible, and if the offeror were a small business, I would expect the CO to withhold award and refer the matter to the SBA for COC consideration.

Part of the problem here is that you have not made your point clearly. You started out by saying:

Please correct me if I'm wrong, but contractor responsibility determination is not concerned with the contractors bid/proposal. [Emphasis added.]

Well, you are wrong. A responsibility determination is "concerned with" an offeror's bid or proposal, because it is about whether the offeror can fulfill that bid or proposal if awarded the contract. If there were no proposal, there would be no need for a responsibility determination. That's what Napolik tried to explain to you.

Perhaps you should clarify what you mean by "is not concerned with". Perhaps you meant that the concept of responsibility does not apply to bids and proposals, but to offerors (prospective contractors) who submit bids or proposals. If that is what you meant in your initial post, and if that had been what you said, and if that had been all you said, I suspect that no one would have responded to you.

What I wrote is clear, and I stand by what I wrote. Your last post amounted to little more than quoting and summarizing the CRS and the FAR. Your "not concerned with" language is vague. Your "so what" statement suggests a startling professional ignorance of or lack of concern with sound business practice, because the legality of a practice is not the be all and end all. And for you to end your post by referring me, of all people, to FAR 9.104-1 was ludicrous.

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  • 9 months later...

Hi, iPod. How did your protest turn out?

First off, I most definitely want to thank you all for providing insightful and educated feedback on matters/situations I have posted in the past. It has continuously broadened my knowledge in the Acquisition community. Vern, thank you for being candid with your responses, and to the others as well - much respect.

So going back to this situation on my requirement; just an update... regarding the two proposals with a huge variance in pricing (see past postings for information) -- the incumbent who was high lost the contract, and after providing a post-award debrief filed a protest claiming the awardee could not possibly do the job at the price it had proposed. Knowing I have done all I can (1) Requested a Determination of Responsibility (2) Performed price and cost analysis (3) Past performance evaluation, among other actions to determine if the awardee posted a risk to the contract... I guess it was bound to happen. This is kind of a downer... even if you think you've done all you can to maintain a steady acquisition process... there are always factors/events/actions that you cannot control... Keep you inform on the outcome as far as the incumbent?s argument on the matter and whether the protest will be sustained or not.

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  • 2 months later...

Happy New Year All!

Based on my last posting, I just wanted to provide an update on this topic as I had stated previously. Interesting enough, the firm withdrew its protest (mind you this was a few years ago) -- I guess it was done prematurely and were “emotional” about not getting the award (purely speculative on my part J) The firm requested a FOIA, which I assumed was for them to do some fact finding to substantiate/warrant a potential protest of, "...could not possibly do the job at the price it had proposed..." on their part. In this case, they may not have found anything that would have led to any biasness, arbitrary, capricious, or non-accordance with laws/regulations actions, etc. from the Government.

In spite of the issue and outcome, I last heard from the ACO (back in 2012 - 13) who was responsible for the contract admin... The contractor had performance issues with meeting Government requirements (i.e., task orders issued and scope requirement, which were still IAW the terms and conditions of the contract). I assume it may or may not have been attributed to their price [Minor detail: reason for price variance between the two offerors was due to proposed personnel to do the job – this is a performance base acquisition]... famous quote... "We did not anticipate the demand on workload based on the price proposed..." Contractor is still performing, but with some struggles, which I am sure would be reflected on their CPARS… and I believe it is coming up for re compete.

The lessoned I learned from this, as I have stated previously… No matter how much effort you do as a 1102 (due diligence), subject to constraints of the law, regulation, policy, etc… you abide by these guidance, your acquisition, and hope that whoever gets the award knows and CAN perform the job successfully with, hopefully, little to no issues.

Could we have considered a different approach to evaluations (i.e., best value) maybe, but that is for another topic.

Note: There is a lot of information that could lead to other question/conclusions regarding this posting… I hope readers look at this situation at face value.

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