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HoosierDaddy2002

Multiple Offers from One firm

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My agency recently released a draft RFP for a large fixed priced construction contract utilizing a Best Value - Trade Off source selection process. The draft RFP also included the draft evaluation criteria - Technical Experience, Past Performance and Price. One of the (five) Technical Experience sub-factors will evaluate the experience of the prime's major subcontractors/suppliers/manufacturers. The draft also stated that, when combined, the Technical Experience sub-factors are of equal importance, and when combined - Technical Experience and Past Performance are significantly more important than Price. After issuing the draft RFP, we conducted a pre-solicitation conference to obtain industry feedback. It was well attended and based on further market research - we anticipate substantial competition once the official RFP is released.

After the conference, an interested offeror contacted me and indicated that it intended to submit multiple offers so that it "will allow the review team to evaluate and select a preferred supplier over another supplier or manufacturer based on past experience as well as the best value proposal." The firm inquired if the multiple offer approach was acceptable to the government.

I considered whether this was a question of alternate proposals - but the phrasing of the question makes me believe it is not as the offeror intends to present multiple offers that conform to stated requirements. Despite stating experience and past performance are significantly more important than price, I also think that this offeror believes it will boil down to a price-based decision - so it wants to submit multiple offers in hopes one of them will present the winning best value combination. It also makes me think that they interpret "major subcontractor/supplier experience" to mean my *agency's experience* with that subcontractor/supplier - which is not at all how that sub-factor is written. As I mentioned, we are anticipating healthy competition based on interest in the project so far - so the team is concerned that if we allow this approach, other offerors might follow suit which will further snarl and drag out the evaluation of initial proposals.

My first instinct was not to definitively answer, but rather to refer them to the basic version of the provision FAR 52.215-1, which was listed in the draft RFP, and emphasize that they take into consideration presenting us with an offer (singular) with its best terms from both a cost and technical standpoint.

I will be consulting counsel before formally responding, but am wondering if anyone had any thoughts? Can we disallow this multiple offer approach - and if so, is it really a good idea to do so? Might it be to our advantage to allow that approach? Or is my interpretation flawed - and this is actually an alternate proposal type situation?

Any feedback will be appreciated.

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Guest Vern Edwards

My thought is that no statute or regulation forbids a firm from submitting more than one offer in response to an RFP or IFB. There are several protest decisions in which it was reported that a firm submitted more than one offer. Some agencies have encouraged it. See e.g., Henry Schein, Inc., GAO B-405319, 2011 CPD p. 264 and Nordic Air, Inc., GAO B-400540, 2008 CPD p. 223, among others. See too Collins & Airman Corp., GAO B-247961, 92-2 CPD p. 41, in which one firm submitted two offers and both were included in the competitive range. I'm not sure that you could forbid a firm from submitting more than one offer without a heck of a good reason. On what grounds would you do so? Anyway, why do you care? An offer is an offer, no matter who submits it.

It is not a matter of alternate proposals. An alternate proposal is one that departs from the terms of the solicitation.

No big deal, really.

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You may preclude multiple offers by including a provision in the solicitation prohibiting more than one offer, e.g., Dale Stevens Constr., B-242234, 91-1 CPD ¶ 354. FAR 52.215-1 does not contain such a prohibition, so you will have to add it. You may also allow multiple conforming offers, even if the RFP is silent on the issue. See Educational Media, Inc., B-225457.2, 87-1 CPD ¶ 498.

Instead of trying to figure out what the prospective offeror meant by "multiple offer", why don't you ask them? Did he mean i) multiple conforming offers or ii) multiple offers where one or more comform with the RFP and one or more don't?

As far as what to do in your situation, you'll have to think it through and decide. If you ask me, I think your evaluation criteria invites this sort of offeror behavior.

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Guest Vern Edwards

HoosierDaddy shouldn't ask anybody anything or answer any question if he's not the contracting officer for the procurement. Consulting counsel does not sound like contracting officer to me.

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Guest Vern Edwards

Don, Could you tell me where in that decision the GAO says it's okay to prohibit firms from submitting more than one offer? The only mention of multiple offers I could find was this:

The RFP prohibited the submission of more than one proposal by an offeror.

and this:

Following an unsuccessful protest to the agency, Stevens filed the instant protest with our Office. Stevens contends that the award was improper for two reasons: (1) the Air Force improperly waived material requirements of the RFP in order to accept HHI's alternate proposal; and (2) HHI submitted an alternate proposal in violation of the RFP's prohibition against multiple proposals.

GAO did not rule on the question of whether it was permissible to limit offerors in that way. It may be that they have made such a ruling in another decision, but they didn't rule that way in the decision you cited. If I missed it, please tell me where it is.

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Guest Vern Edwards

See FAR 52.212-1(e):

(e) Multiple offers. Offerors are encouraged to submit multiple offers presenting alternative terms and conditions or commercial items for satisfying the requirements of this solicitation. Each offer submitted will be evaluated separately.

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There are enough clauses and provisions in this particular requirement as it is - so I don't like the idea of attempting to further convolute it by restricting (if it is even possible) how many offers a firm may submit. Like Vern mentioned, an offer is an offer - we will evaluate all that offers that we get - even if there are a lot. It might stretch out the evaluation process for us - but it might also help us arrive at the best value.

And Don also has a point - our evaluation criteria are inviting this kind of behavior. We actually started with many more technical sub-factors. Although I believe we have wittled them down to the most essential ones, there is obviously still room for this kind of strategy.

I may have neglected to mention that this requirement is for construction, so 52.212-1 will not apply. And to clarify, I am not the PCO. I am the contract specialist ... at a conservative agency with a conservative KO ... so consulting counsel is something we do regularly, but that has served us well.

I sure do appreciate all of the feedback.

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So the next question HoosierDaddy2002 needs to figure out is whether or not to issue an amendment to the draft RFP noting the question asked and an answer. If Hoosier would have asked questions internally and come to a conclusion "to definitely not answer"...and refer them to FAR 15.215-1" etc. such an approach may have been acceptable. However now that the question has been vetted publically on this forum with discussion and implied conclusions on how the agency will proceed makes me wonder whether the question has to be answered more succinctly and that the answer has to be provided in an amendment to the draft RFP or noted in the release of the finalized RFP.

Thoughts?

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Why would an amendment be necessary to answer the question? Why can't HoosierDaddy2002 just tell the firm that the RFP does not prohibit multiple offers? That would be a fact, not an interpretation.

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This is only a draft RFP so it don't matter. He wanted industry to point stuff like this out so it can be addressed in the final RFP. At lease I hope that was why they did it.

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Guest Vern Edwards

HoosierDaddy doesn't have to issue an amendment or answer any questions. All he has to do is issue the RFP and let people ask questions as they may. If he gets a call before the RFP goes out he should tell the caller to look at the RFP when it comes out and ask questions at that time.

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Thanks all for the responses.

Don, in response to your question see FAR 15.201, specifically (f).

Carl,

First, FAR 15.201(f) doesn't require an amendment--it requires public disclosure of "specific information about a proposed acquisition that would be necessary for the preparation of proposals" if such information were disclosed to one or more potential offerors.

Second, suppose the Govt. issued an RFP that did not prohibit multiple offers and an offeror asked if he could submit multiple offers. If the CO's response was that the RFP did not prohibit multiple offers (something apparent from the RFP), do you think the CO would run afoul of FAR 15.201(f) if he/she did not publicly disclose his/her answer?

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Don - Yep, If someone has to ask the question then the answer, in my view, is not clear, should be answered and the answer shared. And while many may want suggest the answer is clear in the context of this thread it obviously was not or the poster would not have asked it and the reason for my post #8. No need to beat this horse further I asked the question and got answers, and I, if I were the CO would know what I would do espeically after vetting the whole affair publically in a forum other than the process of the RFP. But as is the case on matters like this it will be up to the CO of record to decide what to do.

Thanks for the input.

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Don - Yep, If someone has to ask the question then the answer, in my view, is not clear, should be answered and the answer shared. ...

Carl,

I think you're giving more credit to the questioner than may be deserved. Too many times over the years, I've gotten similar questions -- usually from people who hadn't read the whole RFP, and just asked first and read the RFP (or not) later. The mere fact that someone asks a question doesn't necessarily mean that the document isn't crystal clear.

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I have been known to ask questions that I think I already knew the answers to.

My intent was to get the questions answered in an Amendment, as a way to clarify to potential competitors the complexity of a job that may not be obvious from the RFP.

"Lowballing" is as widespread as it ever was, and getting something clear that could otherwise later be called a "latent defect" in an attempt to get an Equitable Adjustment (price hike,) is my way of heading that tactic off.

Sometimes it works.

Of course the answers to some questions are obvious.

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The Government is rarely accused of overcommunicating with industry now, is it?

At any rate, if you provide an answer the specific question and/or a public clarification in the RFP, I suggest adding the word "conforming" to indicate that offerors may submit multiple, conforming offers and that they will be separately evaluated.

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Guest Vern Edwards

What a tempest in a teapot.

The agency issued a draft RFP and someone got a question. Draft means draft. The CO doesn't owe anyone an answer at this point in time. He or she gets to think things over until he or she issues the RFP.

The document that matters is the real RFP. The CO owes answers to questions received about that document. Posting the question to this forum has no legal effect whatsoever.

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What a tempest in a teapot.

The agency issued a draft RFP and someone got a question. Draft means draft. The CO doesn't owe anyone an answer at this point in time. He or she gets to think things over until he or she issues the RFP.

The document that matters is the real RFP. The CO owes answers to questions received about that document. Posting the question to this forum has no legal effect whatsoever.

No disagreement with that here.

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From the first "Myth Busters Memo" .....

Misconceptions and Facts about Vendor Communication

1.

Misconception – "We can’t meet one-on-one with a potential offeror."

Fact – Government officials can generally meet one-on-one with potential offerors as long as no vendor receives preferential treatment.

Prior to issuance of the solicitation, government officials – including the program manager, users, or contracting officer – may meet with potential offerors to exchange general information and conduct market research related to an acquisition. In fact, the FAR, in Part 15, encourages exchanges of information with interested parties during the solicitation process, ending with the receipt of proposals. There is no requirement that the meetings include all possible offerors, nor is there a prohibition on one-on-one meetings. Any information that is shared in a meeting that could directly affect proposal preparation must be shared in a timely manner with all potential offerors to avoid providing any offeror with an unfair advantage (FAR 15.201(f)).

The government ethics rules and Competition in Contracting Act, (10 U.S.C. § 2304), prohibit preferential treatment of one vendor over another. Where vendor interaction is expected to include contract terms and conditions, any one-on-one meetings should include, or at least be coordinated with, the contracting officer (FAR 15.201).4 After the solicitation is issued, the contracting officer shall be the focal point for these exchanges. (Special rules govern communications with offerors after receipt of proposals; that situation is not addressed here.)

Some vendors have expressed concern that involvement in pre-solicitation discussions might lead to exclusion resulting from organizational conflict of interest (OCI) concerns. This should not be the case. While a vendor who, as part of contract performance, drafts the specification for a future procurement will almost certainly be barred by OCI rules from competing for that future procurement, pre-solicitation communications are generally less structured, less binding, and much less problematic. When a vendor, in its role supporting the government, is drafting specifications for a future acquisition, the government is relying on the vendor to provide impartial advice regarding the requirements needed to meet the government’s future needs. Ensuring that the vendor will not be motivated by a desire to win the future contract is the way we try to ensure that this advice will be impartial. This differs dramatically from the pre-solicitation context. In the latter context, the government is not looking for impartial advice from one source, but is instead looking for a variety of options from a variety of sources, each one understandably, and reasonably, attempting to demonstrate the value of its own approach. These marketing efforts, in themselves, do not raise OCI concerns.

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Hoosierdaddy (i love that name!), after reviewing your initial post, I wonder what the intent is of evaluating the "experience" of suppliers and how a firm would use multiple offers to optimise its proposals. Will you evaluate the equipment or materials themselves, the amount of experience a supplier hasp or what? You didn't mention evaluating past performance of the suppliers.

Or is the firm interested in proposing various combinations of subs or brand name suppliers with corresponding prices? I could see such a strategy offering the government some trade off choices.

I've been involved in a lot of construction RFP''s where we looked at key subcontractors and various electronic or mechanical alternative brands from the perspective of technical quality and experience/past performance. But we never simply looked at "experience" of key subs or suppliers. Are you looking at specific types of materials or equipment?

Just curious how the draft RFP was structured and described under that subfactor. You said that you didn't think the firm's strategy was what you intended under that subfactor. Thanks.

I will understand if you prefer not to elaborate here. However, if the firm's intended approach doesnt align with "how that sub-factor is written", you might want to re-consider the sub-factor and the evaluation criteria for it, as it might well cause confusion or other problems during the actual competition. For instance, how would you evaluate that firm's alternative proposals if what it is attempting doesn't align with the eval criteria or results in unintended results for the sub-factor.

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Going back to the original inquiry regaring multiple offers per firm/company - does this apply to sister company (ies) as well? FAR Clause 52.212-1 sate "

(e) Multiple offers. Offerors are encouraged to submit multiple offers presenting alternative terms and conditions or commercial items for satisfying the requirements of this solicitation. Each offer submitted will be evaluated separately." However, not quite sure it applies to sister companies as well, and whether this will cause any issues to the Government?

Here is the question I had received from a contractor:

Currently we have two sister-companies, with one owner, separate DUNS and SAM Codes and currently performing work on the installation. One of our companies has lower overhead and may afford us an opportunity to propose both companies separately, offering varied solutions. We have done-so in the past, but first we have verified this would not be a problem. Are we able to propose as two companies with alternate solutions for the Solicitation?

Agency: DOD-Army

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Guest Vern Edwards

I assume that by "sister company" you mean "affiliate" as defined in FAR 2.101.

Are you asking whether separate proposals from affiliates will be considered multiple proposals from a single firm? If so, and if the affiliates are separate and distinct legal entities, then the answer should be no. But if a solicitation forbids multiple offers, then offerors should ask the contracting officer before submitting proposals, to be on the safe side.

To all: Questions like this one should be submitted to the cognizant contracting officer. We at Wifcon cannot say what is or what will be in such cases. At most, all we can say is what ordinarily is or what should be. To submit a proposal in reliance on such an answer would be stupid.

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Don't know if this applies, if the acquisition is for a Commecial Item, but FAR 12.302 says that FAR 52.212-1 isn't supposed to be tailored:

"... in a manner that is inconsistent with customary commercial practice for the item being acquired unless a waiver is approved in accordance with agency procedures."

In the few narrow areas where I am exposed to customary commercial practice, I don't often see where solicitations restrict alternate proposals. More often I see a solicitation restricting who can submit an offer, usually limited to established qualified sources.

My sense is that, generally, if there's a better way of doing things, which usually means cheaper, then industry wants to have that option.

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Thank you for your response Vern.

I definitely agree with you on your last statement. While I inquire the minds of Contracting Officers, past and present, or individuals who’ve had the experience working in acquisition environment, it is a matter of opinion what is shared on this forum. Some substantiated base on references provided (e.g., FAR, DFARS, GAO cases, etc.), others based on experience and logic thinking. I most definitely would not take what’s stated on this forum as the ultimate response to our solution to issues/concerns or what have you… I can only speak for myself when I say that this… the information that is provided here expands my knowledge in this career field. It is one of many sources I tap into, both as a Specialist and a young Contracting Officer, to find information about my concerns with what I can and cannot do when it comes to working in the acquisition environment. I do hope when people see a response to their inquiry(ies), that they do not just leave it at that; we have to analyze for ourselves if whether the information given is indeed the right solution base on the individual’s case. As the idiom goes “take with a grain of salt…”

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