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Potential Protest Opportunity for the Vendor?


PATRICK3

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I have a situation where a contractor submitted a proposal but was denied the contract which was rated using LPTA, for information which wasn't required in the solicitation. Basically, they received a letter stating that their proposal wasn't accepted but the reasons why, were never provided to the contractor. Two days after receiving the unsuccessful letter, the vendor asked the CO to provide reasons as to why they didn't qualify to better assist for future procurements. A week later the CO responded by stating information as to why the vendor didn't qualify. Two days after that response, the vendor stated that the information that the CO sent as justification for not winning the award, was not stated in the evaluation factors section or in any section in the solicitation. The vendor requested that the CO re-evaluate the proposal, as what was requested in the solicitation was all provided. The CO hasn't responded yet and it's been 3 weeks since the vendor requested the CO to re-evaluate. The CO that awarded the contract is no longer in the agency. The dollar value is under the Simplified Acquisition Threshold of $250,000. My questions are...

1. Can the vendor at this point Protest this award, even though technically 10 days have passed and all they asked was for the CO to re-evaluate their proposal?

2. Would it be best to cancel the award and re-solicitate the contract and do it correctly, using the Termination for Convenience? I know we may have to pay the vendor an equitable adjustment for doing so as well. 

Thank you!

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My thought:  Forget your questions 1 and 2.  Instead, the question the new contracting officer and his or her managers need to answer is whether the award was grossly improper.  Was the award grossly improper?  If NO, then leave it alone.  If YES, then you might think about a T4C along with other measures (including leaving it alone).

In your opinion, was the award grossly improper?  This is a YES/NO question.

The process works best when all players follow the rules.  Your unhappy vendor could have filed a protest which would have forced a timely resolution -- but the vendor did not, which indicates it is not pursuing the matter.  I have little sympathy for vendors who won't file protests but still want to beg for reconsideration. 

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I wouldn't say it was improper to be honest @ji20874. So given that fact, the vendor at this point can not protest, right? That timeframe has passed? I thought I read somewhere in a GAO Case where a vendor asked the CO for additional information and because they didn't provide it, they could still protest at a later date. I know the 10 day rule after receive notice that they didn't win the award though. Thanks again

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31 minutes ago, PATRICK3 said:

I wouldn't say it was improper to be honest

If you won't say the award was improper, then why are you even thinking about a T4C and a re-evaluation?

Whether or not the protester can still file a protest is not your concern -- that is between the vendor and the GAO.

According to the GAO, an inadequate debriefing is not generally a basis for a protest.  Are you wondering about an uncompleted debriefing?  It doesn't sound like it -- the former contracting officer already and promptly provided "...information as to why the vendor didn't qualify..." (the basis for the determination, right?).  It seems to me that any required debriefing has been done.

As far as I can tell, there is no obligation for you to reply to the unhappy vendor's letter requesting re-evaluation.  Why are you wringing your hands over this matter?  Is there something else you haven't shared?

 

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Hey @ji20874, the main issue is that the information that was provided to the vendor was not accurate as to what was stated in the solicitation. I understand your reasoning and I appreciate it. I was just wondering if the CO has fulfilled their duty as to the information given to the vendor. I don't want to add anymore to my plate. Trust me. Lol. Thanks 

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2 hours ago, PATRICK3 said:

I was just wondering if the CO has fulfilled their duty as to the information given to the vendor.

This seems to be the case, from what I have read here. 

2 hours ago, PATRICK3 said:

What would make an award improper in your eyes?

I think that a grossly improper award will be self-evident and fact-specific.  If you [with access to the entire file] are not seeing any impropriety, then I'm not, either.  We cannot second-guess every award decision beyond the reviews and controls already in place.

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2 hours ago, PATRICK3 said:

Question for you...What would make an award improper in your eyes?

Three things, among many others:

  1. Evaluation of an unstated factor. See FreeAlliance.com, LLC; Radus Software LLC/Radus CTA; Mobomo, LLC, GAO B-419201.3, June 24, 2021.
  2. Failure to document a reasonable basis for an evaluation. See Congosante, LLC, GAO B-417111, February 21, 2019.
  3. Evaluation inconsistent with the solicitation statement of factor relative importance. See The Clay Group, LLC, GAO B-406607, July 30, 2012.
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