SSKO Posted October 26, 2011 Report Share Posted October 26, 2011 If the soliciation/procurement (RFP)is cancelled the day of receipt of proposals and before the proposals are opened, what should the agency do with the proposals? Send them back? Destroy them? One suggestion here was to use them for "market research" to develop the new solicitation. I thought unopened proposals should be returned to the offeror, but I cannot find any specific guidance. We plan to resolicit for the requirement this FY. Meanwhile, the customer was given KO permission to open the proposals and is using them to prepare an updated IGCE. Is this appropriate? Link to comment Share on other sites More sharing options...
ji20874 Posted October 26, 2011 Report Share Posted October 26, 2011 The key is whether the contractor proposal information is entitled to protection from disclosure to "any person other than a person authorized, in accordance with applicable agency regulations or procedures, by the agency head or contracting officer to receive such information" (FAR 3.104-4( a )). Even if the information is not protected, the disclosure may be improper if "the Federal agency plans to resume the procurement" (FAR 3.104-4( e )( 2 )). Why not send a notice to all the offerors saying the solicitation is cancelled but that the Government intends to open (or has already opened) the proposals already received as part of a market research effort to develop an independent Government cost estimate and re-write the solicitation for issuance in the future? That's just being honest and transparent. Transparency is a big deal now-a-days. Essentially, the contracting officer is converting a RFP into a RFI. RFP is defined in FAR 15.203( a ). RFI is defined in FAR 15.201( e ). They are different. Link to comment Share on other sites More sharing options...
ji20874 Posted October 26, 2011 Report Share Posted October 26, 2011 When an Invitation for Bids (IFB) is canceled before opening, the bids are returned unopened to the bidders. FAR 14.209( b ). Link to comment Share on other sites More sharing options...
SSKO Posted October 26, 2011 Author Report Share Posted October 26, 2011 The key is whether the contractor proposal information is entitled to protection from disclosure to "any person other than a person authorized, in accordance with applicable agency regulations or procedures, by the agency head or contracting officer to receive such information" (FAR 3.104-4( a )). Even if the information is not protected, the disclosure may be improper if "the Federal agency plans to resume the procurement" (FAR 3.104-4( e )( 2 )).Why not send a notice to all the offerors saying the solicitation is cancelled but that the Government intends to open (or has already opened) the proposals already received as part of a market research effort to develop an independent Government cost estimate and re-write the solicitation for issuance in the future? That's just being honest and transparent. Transparency is a big deal now-a-days. Essentially, the contracting officer is converting a RFP into a RFI. RFP is defined in FAR 15.203( a ). RFI is defined in FAR 15.201( e ). They are different. Good points, thank you. Considering the proposals are marked "........These data shall not be disclosed outside the Government and shall not be duplicated, used or disclosed in whole or in part for any purpose other than to EVALUATE THE PROPOSAL ...........(my emphasis), I would consider this information "protected". Link to comment Share on other sites More sharing options...
SSKO Posted October 26, 2011 Author Report Share Posted October 26, 2011 When an Invitation for Bids (IFB) is canceled before opening, the bids are returned unopened to the bidders. FAR 14.209( b ). Yes, in regards to "Bids", in FAR Part 14, but in FAR Part 15 for "proposals", I can't find similar language. I have seen the language in agency (DLA) supplements. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted October 27, 2011 Report Share Posted October 27, 2011 Why do you need a regulation to tell you what to do? What's up with that? This isn't hard. The proposals belong to the offerors if you're not going to consider them. They sent them to you in the expectation and on the condition that you would use them in order to decide which to accept. You're not going to accept any of them. What right to you have to use the information in them for "market research"? That would be unethical without the permission of the offerors. You would violate confidentiality for your own ends. Keep the proposals unopened, contact each offeror, and ask if they want their proposal returned or destroyed. Get permission before you use the information in them for purposes other than you represented to the people who sent them to you. Document the file. Link to comment Share on other sites More sharing options...
SSKO Posted October 31, 2011 Author Report Share Posted October 31, 2011 Why do you need a regulation to tell you what to do? What's up with that?This isn't hard. The proposals belong to the offerors if you're not going to consider them. They sent them to you in the expectation and on the condition that you would use them in order to decide which to accept. You're not going to accept any of them. What right to you have to use the information in them for "market research"? That would be unethical without the permission of the offerors. You would violate confidentiality for your own ends. Keep the proposals unopened, contact each offeror, and ask if they want their proposal returned or destroyed. Get permission before you use the information in them for purposes other than you represented to the people who sent them to you. Document the file. Thanks Vern. The proposals are marked quite clearly and I objected to them being used for Market Research.........I appreciate your response. Link to comment Share on other sites More sharing options...
ipod24 Posted November 17, 2011 Report Share Posted November 17, 2011 I have an inquiry that is somewhat aligned to this thread... Suppose we received proposals and the Government, while evaluating each proposal to determined an awardee, suddenly had an epiphany [for lack of a better word] and realized that how they went about approaching the solicitation (e.g., evaluation criteria) had numerous mistakes. The Government then cancels the solicitation and subject to fixing its mistake will re solicit ? do the companies that proposed have the right to claim proposal cost? I?ve asked this with my fellow peers and they say no ?it is the cost of doing business?. When I look at FAR 33.104 (h) (1) If the GAO determines that a solicitation for a contract, a proposed award, or an award of a contract does not comply with a statute or regulation, the GAO may recommend that the agency pay to an appropriate protester the cost? Under Title 28 USC 1491((2). - To afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs. The Government did not have a reasonable means of cancelling a solicitation in my view ? they pretty much cancelled it because it failed to analyze its numbers (IGE, lack of historical data, etc.), evaluation criteria due to lack of attentiveness. Had it been due to reasons like not being able to determine fair and reasonable pricing then I believe the cancellation would have been a valid one. So can the contractor claim proposal cost? Or is it just the mere idea that ?it is the cost of doing business?? Link to comment Share on other sites More sharing options...
napolik Posted November 17, 2011 Report Share Posted November 17, 2011 I have an inquiry that is somewhat aligned to this thread... Suppose we received proposals and the Government, while evaluating each proposal to determined an awardee, suddenly had an epiphany [for lack of a better word] and realized that how they went about approaching the solicitation (e.g., evaluation criteria) had numerous mistakes. The Government then cancels the solicitation and subject to fixing its mistake will re solicit ? do the companies that proposed have the right to claim proposal cost? I?ve asked this with my fellow peers and they say no ?it is the cost of doing business?. When I look at FAR 33.104 (h) (1) If the GAO determines that a solicitation for a contract, a proposed award, or an award of a contract does not comply with a statute or regulation, the GAO may recommend that the agency pay to an appropriate protester the cost? Under Title 28 USC 1491((2). - To afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs. The Government did not have a reasonable means of cancelling a solicitation in my view ? they pretty much cancelled it because it failed to analyze its numbers (IGE, lack of historical data, etc.), evaluation criteria due to lack of attentiveness. Had it been due to reasons like not being able to determine fair and reasonable pricing then I believe the cancellation would have been a valid one. So can the contractor claim proposal cost? Or is it just the mere idea that ?it is the cost of doing business?? To obtain your proposal costs, you need to file a protest with GAO or an action at the COFC. I do not have sufficient info to offer an opinion on the likelihood of success in either forum. Take a look at the excerpt I pasted below from the Data Trak Consulting decision. You can read the decision here: Data Trak. See also this decison: A-Tek In response, DataTrak asserts that the agency ?did not have a justifiable change in its needs that would support this action.? Supplemental Protest (B-292503.2) at 14. Rather, the protester alleges, the revised RFQ is for the same effort and scope of work as the initial RFQ and DataTrak insists that the agency simply issued the revised RFQ to change the evaluation criteria and thus avoid making award to DataTrak whose quotation in response to the initial RFQ was fully responsive. Id. at 14-16; Protester?s Comments at 9-13. Link to comment Share on other sites More sharing options...
ji20874 Posted November 17, 2011 Report Share Posted November 17, 2011 Where do you sit? Sometimes, what you see depends on where you sit. Are you (A) a Government employee; or ( a contractor employee/official? If (A), are you (1) holding animus towards your program or contracting office for making a decision you don't agree with; or (2) sincerely concerned that a contractor might file a claim against which your agency has no defense? An interested party, such as a contractor who submitted a proposal, may file a protest against the cancellation of a solicitation. The GAO will sustain the protest if it finds a basis for doing so. Often, though, the GAO opines that a contracting agency has broad discretion to cancel a solicitation after receipt of proposals, especially a RFP in contrast to an IFB. Cancelling a solicitation in order to craft better evaluation criteria and to correct other earlier mistakes sounds like a good idea to me. Contractor employee/official's action: Consider protesting the cancellation of the solicitation; and if successful, then seek proposal preparation costs. Government employee's action: Work hard and make the next solicitation better than the last one. Help your agency be successful in its acqusition program. Link to comment Share on other sites More sharing options...
ipod24 Posted November 18, 2011 Report Share Posted November 18, 2011 To obtain your proposal costs, you need to file a protest with GAO or an action at the COFC. I do not have sufficient info to offer an opinion on the likelihood of success in either forum. Take a look at the excerpt I pasted below from the Data Trak Consulting decision. You can read the decision here: Data Trak.See also this decison: A-Tek Thanks napolik for those informative GAO cases! Link to comment Share on other sites More sharing options...
brian Posted December 19, 2011 Report Share Posted December 19, 2011 Why do you need a regulation to tell you what to do? What's up with that?This isn't hard. The proposals belong to the offerors if you're not going to consider them. They sent them to you in the expectation and on the condition that you would use them in order to decide which to accept. You're not going to accept any of them. What right to you have to use the information in them for "market research"? That would be unethical without the permission of the offerors. You would violate confidentiality for your own ends. Keep the proposals unopened, contact each offeror, and ask if they want their proposal returned or destroyed. Get permission before you use the information in them for purposes other than you represented to the people who sent them to you. Document the file. NOTHING of substance to add. I just have this for Vern: SALUTE! what a great answer. Link to comment Share on other sites More sharing options...
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