Jump to content
The Wifcon Forums and Blogs

Recommended Posts

Hypothetical situation:

Say an agency sends out a solicitation containing a lengthy Section C, SOW with a voluminous number of requirements listed. The Section M evaluation criteria states this is a Trade-off/Best Value, Non-Price Eval Factors are more significant than Price.

Note, the Technical Approach Eval Factor DOES NOT say anything along the lines of "we will evaluate to the degree to which the proposal meets or exceeds the requirements set forth in the Section C, SOW." Rather, assume the Technical Approach Eval Factor only stated that the agency would evaluate for only certain things mentioned in the SOW.

Does the agency still have an obligation to evaluate for ALL of the requirements set forth in the SOW? Can an agency consider the remaining things in the SOW that were not evaluated, just matters of "contract administration" after award?

Link to comment
Share on other sites

The agency’s contracting officer is bound to evaluate the contractor's technical proposal against only the specific criteria set out in the solicitation when doing the technical evaluation of proposals. In making the determination of responsibility, the contracting officer should consider the contractor’s ability to execute the entire SOW set out in Section C.

Link to comment
Share on other sites

Guest Vern Edwards

Does the agency still have an obligation to evaluate for ALL of the requirements set forth in the SOW? Can an agency consider the remaining things in the SOW that were not evaluated, just matters of "contract administration" after award?

govt2310:

There is something wrong with your questions. I'm not sure whether the questions are poorly worded or reflect some conceptual misunderstanding on your part.

In a source selection, the government does not evaluate "requirements set forth in the SOW." The government evaluates offers and offerors based on information in proposals pertaining to the offeror's promises and capability with respect to those requirements. What the government evaluates should reflect the content of the proposals. You must instruct offerors about what to include in their proposals about their offers and themselves and then state what you will consider when evaluating the proposals (the evaluation factors).

So, in response to your questions I ask:

1. What did you ask for in the offers? Did you ask for a statement to the effect that the offeror agrees to fulfill the requirements in the SOW? Did you ask for a description of how the offeror intends to fulfill the requirements. Do you want to evaluate the response(s) on the basis of some qualities (evaluation factors) that you want them to have?

2. Do you want to evaluate the offeror itself for its capability to fulfill the SOW requirements?

Link to comment
Share on other sites

Although I agree with Vern's response and his questions, some short answers to your questions are:

1) The agency does not have to evaluate proposals for all of the requirements set forth in the scope of work but must evaluate those aspects that it asked the proposers to address in their proposals. I will not expand on that yet until you answer Vern.

2) After award, the Contractor must comply with all aspects of technical performance and capability in the solicitation, including those which were not addressed in the proposal in response to the proposal submission requirements.

The government must not knowingly award a contract based upon a non-compliant proposal. I would expect the description of the "basis of award" or somewhere in Section M to somehow state that the winning proposal or best value or that award requires the proposal to be "compliant" with or "conform" to all solicitation requirements or similar words to that effect.

See, for example, the key excerpts from Comp Gen Decisons at http://www.wifcon.com/pd15_206a.htm

The government must amend the solicitation if it wants to entertain deviations to the original requirements: SEE FAR 15.206 -- Amending the Solicitation.

(a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation.

...( c ) Amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from the competition.

(d) If a proposal of interest to the Government involves a departure from the stated requirements, the contracting officer shall amend the solicitation, provided this can be done without revealing to the other offerors the alternate solution proposed or any other information that is entitled to protection (see 15.207( b ) and 15.306(e)).

Link to comment
Share on other sites

1-What did the agency ask for in the offers?

ANSWER: We asked that they address the requirements in the SOW.

2-Was the agency intending or trying to evaluate offeror capability to fulfill the SOW requirements?

ANSWER: Yes.

* * * * *

In the Evaluation Section of the Solicitation, one of the factors was TECHNICAL APPROACH AND UNDERSTANDING. It stated that the Offeror's Technical Approach and Understanding will be evaluated on the Offeror clearly demonstrating an understanding of the requirements with the SOW and describing a viable ,efficient solution showing how they will be met. Then it listed several "elements" that "should also be addressed."

* * * * *

Answer/Response to the other questions posted:

Yes, the Government evaluates whether the offeror's proposal met the requirements of the SOW. So in situations where the evaluation factors state that the agency will evaluate the offeror's approach/promises in regard to the SOW, but the evaluation factors do not state that ALL of the requirements will be evaluated, can the agency still make award to an offeror if it turns out, after the fact, that an "unevaluated" requirement has not been met?

And is this a matter of responsibility b/c the requirement was not evaluated, or is it a matter of post-award contract administration?

If it is true that the Government cannot knowingly make award to a non-compliant proposal, doesn't that require that the Government always evaluate ALL, meaning 100%, of the listed requirements in the SOW? Because if say only 10% of the requirements are evaluated for, then the Government tries to make award, then post-award the Government finds out that one of the other requirements in the 90% that were not evaluated for, one of those is "not met," doesn't that make the Government stuck with a contract that fails to meet its requirements? Or is this considered just a matter of contract administration?

Link to comment
Share on other sites

Guest Vern Edwards

You ask:

So in situations where the evaluation factors state that the agency will evaluate the offeror's approach/promises in regard to the SOW, but the evaluation factors do not state that ALL of the requirements will be evaluated, can the agency still make award to an offeror if it turns out, after the fact, that an "unevaluated" requirement has not been met?

What do you mean by "after the fact"? After what fact? After the fact of the evaluation, but before award? You'll have to clarify that for me.

Generally, suppose that the solicitation says that the government will evaluate an offeror's understanding of the requirements. Suppose further that it instructs offerors to address particular requirements in their proposals. Now suppose that a proposal indicates, expressly or by implication, that the offeror will not fulfill a requirement in the SOW that was not required to be addressed. In that case the government cannot make an award to that offeror, even though the solicitation did not require that the offeror address that particular requirement or identify a response to that requirement as one to be evaluated. I say that based on two GAO principles. First:

It is a fundamental principal of government contracting that an agency may not award a contract on the basis of a proposal that fails to meet one or more of a solicitation's material requirements. Plasma-Therm, Inc., B–280664.2, Dec. 28, 1998, 98–2 CPD ¶160 at 3.

Contrack International, Inc., GAO Dec. B-408945, 2013 CPD ¶ 300.

And second:

Agencies may properly evaluate a proposal based on considerations not expressly stated in the RFP where those considerations are reasonably and logically encompassed within the stated evaluation criteria and where there is a clear nexus between the stated and unstated criteria. Exelis Systems Corp., B–407111 et al., Nov. 13, 2012, 2012 CPD ¶340 at 18.

Great Lakes Towing Co., GAO Dec. B-408210, 2013 CPD ¶ 151.

Link to comment
Share on other sites

You asked:

1. "...So in situations where the evaluation factors state that the agency will evaluate the offeror's approach/promises in regard to the SOW, but the evaluation factors do not state that ALL of the requirements will be evaluated, can the agency still make award to an offeror if it turns out, after the fact, that an "unevaluated" requirement has not been met?"

2. "And is this a matter of responsibility b/c the requirement was not evaluated, or is it a matter of post-award contract administration?"

3. "If it is true that the Government cannot knowingly make award to a non-compliant proposal, doesn't that require that the Government always evaluate ALL, meaning 100%, of the listed requirements in the SOW? Because if say only 10% of the requirements are evaluated for, then the Government tries to make award, then post-award the Government finds out that one of the other requirements in the 90% that were not evaluated for, one of those is "not met," doesn't that make the Government stuck with a contract that fails to meet its requirements? Or is this considered just a matter of contract administration?"

In addition to what Vern asked and described above, I need to clearly understand whether or not the government reviewed and evaluated EVERYTHING that was actually in the proposal(s) in your "hypothetical situation". I don't understand if the Government fully evaluated the proposals in this specific situation. You are asking GENERAL questions (referring to "always") within one "hypothetical" scenario.

You used phrases such as: "doesn't that require that the Government always evaluate ALL, meaning 100%, of the listed requirements in the SOW?"; "if say only 10% of the requirements are evaluated for"; "then post-award the Government finds out that one of the other requirements in the 90% that were not evaluated for"; "after the fact, that an "unevaluated" requirement has not been met"; "b/c the requirement was not evaluated";

NO, the Government DOESN'T ALWAYS evaluate ALL, meaning 100%, of the listed requirements in the SOW. The Government doesn't ALWAYS ask the proposal to address, in detail, 100% of the listed requirements of the SOW in the proposal, if that is the point of your question.

In a best value trade-off source selection with a very voluminous list of requirements, the government will often ask the proposals to address items in the SOW that the proposed solutions to may be considered discriminators between proposers. The Government might also require the proposers to address some specific requirements in the statement of work that the government wants to evaluate the proposers' understanding of. SEE FAR 15.304 ( b ).

You said that the SOW is very lengthy and lists "a voluminous number of requirements." govt2310, is there a reason why the government would need to ask for a proposed approach or solution to each and every requirement in the SOW in this situation?

YES, the Government GENERALLY DOES evaluate all of the proposal - at least that which it asked the proposers to address. There are exceptions and twists, which are beyond the scope of this thread. Assuming that the proposer did not add information in its proposal that wasn't asked for in your hypothetical situation, the government should have evaluated all of it - not 10% as you hinted at above.

Your clarifications to these questions are necessary for me to better address your questions regarding what happens after discovery "after the fact" or "post award" that some of the 90% non-evaluated requirements are not met. Thanks!

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...