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This question is not specific to any one method of contracting and applies to evaluations that use either LPTA or Tradeoffs as a basis for award. Can an offeror's proposal be excluded from consideration based solely on a price that is so high that the Government would not make an award to it? More specifically, can a proposal be excluded from consideration based solely on price, without having evaluated any other factor, such as technical or past performance if the Government is certain that it would not make an award at the offered price?

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This question is not specific to any one method of contracting and applies to evaluations that use either LPTA or Tradeoffs as a basis for award. Can an offeror's proposal be excluded from consideration based solely on a price that is so high that the Government would not make an award to it?

Have you considered a competitive range determination under FAR 15.306( c ).

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Have you considered a competitive range determination under FAR 15.306( c ).

What is your point? If discussions are to be conducted, under FAR 15.306 (c ), one determines which firms to include in a competitive range after first evaluating all proposals in accordance with 15.305 (a ). FAR 15.305 (a ) includes price or cost, past performance and technical evaluations.

"15.306 (c ) Competitive range.

(1) Agencies shall evaluate all proposals in accordance with 15.305(a ), and, if discussions are to be conducted, establish the competitive range. Based on the ratings of each proposal against all evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the most highly rated proposals, unless the range is further reduced for purposes of efficiency pursuant to paragraph (c )(2) of this section.

(2) After evaluating all proposals in accordance with 15.305(a ) and paragraph (c )(1) of this section, the contracting officer may determine that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted. Provided the solicitation notifies offerors that the competitive range can be limited for purposes of efficiency (see 52.215-1(f )(4)), the contracting officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals (10 U.S.C. 2305(b )(4) and 41 U.S.C. 253b(d ))..."

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It is called a competitive range determination.

The original question is "(C )an a proposal be excluded from consideration based solely on price, without having evaluated any other factor, such as technical or past performance if the Government is certain that it would not make an award at the offered price?"

If it involves a source selection under FAR 15.3, would that involve a deviation from FAR 15.305 (a ) and - if discussions are to be conducted, a deviation from 15.306 (c )?

Although, it might be possible if no discussions are contemplated, can the Government avoid a technical and past performance evaluation if discussions are to be conducted? What if the offered price is based upon a misinterpretation of the requirements and might otherwise be correctable and advantageous to the Government, assuming that discussions are going to happen?

The Gold Cross decision, referenced above, involved an RFQ for a commercial item with quotations. It did not involve proposals under the FAR 15.3 source selection procedures, correct? The specific case invovled a quotation that was 20 times higher than the selectee's price. The agency eliminated it, then evaluated the remaining two vendors' technical submissions, and determined that one of the other firm's quotation represented the best value and made award to that firm. According to the Decision, there were apparently no discussions.

The decision also noted (Italics added) : "In this regard, the RFQ provided that the agency intended to make award without discussions, and the record does not indicate that the agency ever established a competitive range or conducted discussions...The protester points to various FAR provisions that it claims required the agency to evaluate its technical submission. Under these circumstances, we do not think the referenced FAR sections--governing source selection procedures--are applicable once an agency has reasonably determined that a quoted price is not fair and reasonable. As explained above, once the agency determined that the protester's price was unreasonable, the agency could not contract with Gold Cross, and any subsequent evaluation of Gold Cross's technical submission would have no bearing on the procurement."

To be honest here, I haven't read the other decisions cited in the Gold Cross Decision - yet.

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This question is not specific to any one method of contracting and applies to evaluations that use either LPTA or Tradeoffs as a basis for award. Can an offeror's proposal be excluded from consideration based solely on a price that is so high that the Government would not make an award to it? More specifically, can a proposal be excluded from consideration based solely on price, without having evaluated any other factor, such as technical or past performance if the Government is certain that it would not make an award at the offered price?

Rios, there have been previous discussions in other threads concerning an abbreviated LPTA procedure, where one can skip the technical evaluation of higher priced proposals if there is a lower priced, technically acceptable proposal that you can award to without conducting discussions. That may partially answer your question. I don't recall if the RFP specifically has to describe the intended procedure but I think the method discussed did include the intended methodology in the RFP.

You asked if one "can" exclude a high priced proposal basely solely on price, not whether one "should" do so. While it might often or generally always make sense to use such procedures in certain purchases, such as for supplies, commodities (?) or routine services, it might not always make sense in some other acquisition types, such as design-build or construction contracting.

If the Government could obtain some significant benefit or additional value from keeping an initially higher priced firm in the competition (trade-off), it may make sense to proceed with discussions and include such firms. Even in an LPTA situation, it might be possible to obtain significantly lower prices after conducting discussions. I've been involved in a few situations where the proposer who was initially much higher than others ultimately lowered its price and won the award due to superior technical proposal or qualifications (trade-off) or lowered its price in an LPTA. Discussions revealed flaws or weaknesses in the RFP and/or in assumptions initially made by proposer(s), which resulted in significant price savings in the revised proposals.

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Sure. The source selection plan could have a mult-tiered evaluation process. The first tier could be price. If too high, an offeror would not make it to the next stage .... of course as stated prior- SHOULD one do this? Personally, I would not. Discussions can change everything.

The Source Selection Plan is an internal Government document that has no outcome on the competition. It's purpose is to set forth the roles and responsibilities of the source selection team.

If Sections L and M of the RFP have such an evaluation process, then sure. But the SSP doesn't dictate it.

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The Source Selection Plan is an internal Government document that has no outcome on the competition. It's purpose is to set forth the roles and responsibilities of the source selection team.

If Sections L and M of the RFP have such an evaluation process, then sure. But the SSP doesn't dictate it.

I can't speak for other places, but every place I've worked has included the Instructions to Offerors and the evaluation factors as part of the SSP. See, for example, paragraph 2.2.5 of the Department of Defense Source Selection Procedures.

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I agree, but I was just stating on principle what the SSP says is not binding. You would hope that they have included L&M as an attachment (and the final version), or even better just referenced the RFP directly. I was just pointing out that relying upon the SSP isn't binding on anything, it's what the RFP says. You hope that the instructions to offerors and evaluation criteria in the SSP match the RFP exactly, but I'd be lying to you if I told you that I haven't seen otherwise.

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dcarver,

Your beliefs about the force of source selection plans are outdated. See http://www.wifcon.com/cofc/09-602c.pdf.

Don,

GAO has not yet bought into the COFC judge's view of the role of the SSP. For GAO, the SSP represents "internal agency guidelines". Failure to follow the SSP does not present the basis of a protest at GAO. The most recent expression of GAO's view may be seen in footnote 7 of ABSG Consulting, Inc., B-407956; B-407956.2, Apr. 18, 2013:

"Additionally, ABSG argues that this is one of several aspects of the Coast Guard’s source selection plan that were not followed. Supplemental Protest at 2-3. Such complaints concerning whether an agency followed internal guidelines do not state a valid ground of protest. Johnson Controls World Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD ¶ 88 at 6 n.6; see also Walsh Investors, LLC, B-407717, B-407717.2, Jan. 28, 2013, 2013 CPD ¶ 39 at 8 n.6 (source selection plan is an internal guide that does not give rights to parties)."

The discussion in paragraph II C of the COFC's USFalcon decision is worth a careful read and consideration. Perhaps one could avoid a loss at the COFC by modifying formally the source selection plan and assuring the SSA approval of the modification.

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Don,

The discussion in paragraph II C of the COFC's USFalcon decision is worth a careful read and consideration. Perhaps one could avoid a loss at the COFC by modifying formally the source selection plan and assuring the SSA approval of the modification.

That's one way to do it. Alternatively, the SSP can define the types of deviations that are permissible.

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The Source Selection Plan is an internal Government document that has no outcome on the competition. It's purpose is to set forth the roles and responsibilities of the source selection team.

If Sections L and M of the RFP have such an evaluation process, then sure. But the SSP doesn't dictate it.

Anyone that does not know enough to crosswalk the SSP into UCF Sections L & M of the RFP should get out of contracting...

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Anyone that does not know enough to crosswalk the SSP into UCF Sections L & M of the RFP should get out of contracting...

I agree, but that doesn't mean that those people don't exist in contracting. I digress, I was just trying to make a point that the SSP isn't binding, the RFP is. You guys are taking my comment a bit too far on it. I think we can all agree that the SSP and RFP evaluation criteria should be the same.

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I agree, but that doesn't mean that those people don't exist in contracting. I digress, I was just trying to make a point that the SSP isn't binding, the RFP is. You guys are taking my comment a bit too far on it. I think we can all agree that the SSP and RFP evaluation criteria should be the same.

Unfortunately, you are absolutely correct regarding the folks in contracting. Also- SSP and RFP evaluation criteria should and must be the same. Besides a mismatch creating a solid basis for a potential protest, it is an essential best practice for contracting (that often exist to avoid a protest).

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