Failure to Acknowledge Solicitation Amendments

[cblack20]

I have a situation where one of our bidders refused to acknowledge a solicitation amendment. This amendment was issued to extend the period for acceptance of offers ( holding prices from 90 to 120 days).

This is a FAR 15 procurement issued as a RFP. Can I exclude this bidder from the competitive range because they did not response or acknowledge (after several attempts) the amendment? GAO case law has many cases that deal with FAR 14. Would those case laws apply here -in FAR 15?

[ji20874]

If you're Part 15, you shouldn't use the term "bidder" -- the confusion caused by imprecise use of terms might be contributing to the problem. Use "offeror" instead in Part 15.

Do you want to reject the offer as unacceptable, or exclude it from the competitive range? These are two different matters, and you should not think if them as identical.

Regarding the idea of responsiveness in a FAR Part 15 acquisition, you might want to look at GAO Decision B-400177, ECI Defense Group. In particular, see footnote 3 -- While DSCR rejected ECI's proposal as "non-responsive,"the record is clear that the solicitation here employed negotiated procedures pursuant to FAR Part 15. Accordingly, references to "nonresponsiveness" are inappropriate, since this concept is not applicable to negotiated procurements. . . . See also footnote 12 in B-297078, Lifecare Management Partners -- As a preliminary matter, we note that the protester alleges that the agency should have rejected Wright's proposal as "nonresponsive." The record is clear, however, that the solicitation here employed negotiated procedures pursuant to Federal Acquisition Regulation (FAR) Part 15.Accordingly, the protester's references to "nonresponsiveness" are inappropriate (and its reliance upon FAR Part 14 and our decisions in sealed bidding procurements is misplaced), since this concept is not applicable to negotiated procurements. . . .

The first case above also focused on an offeror's failure to acknowledge an amendment. There, the amendment was a material amendment. In contrast, our amendment doesn't seem to be a material amendment. You're not invoking the firm bid rule, are you? Under para. ( d ) of the solicitation provision at FAR 52.215-1, we allow offerors to propose offer validity periods differing from what we set in the solicitation.

Based only on what you wrote, and filling in the gaps in my own mind, my first-blush response is that you should evaluate the offer along with the other offers you received -- after you have done that, then you can decide if you need a competitive range decision as you proceed towards a best-value selection decision. If the best value offer has expired before you make your decision, well, you cannot accept an expired offer. But to disqualify the offer up-front solely because of a failure to acknowledge a non-material (my opinion) amendment is problematic.

Best wishes...

[Guest Vern Edwards]

Don't exclude them from the competitive range. If they refuse to extend the period for acceptance, send them a notice that you consider their proposal to have been withdrawn, since you won't be in a position to accept their proposal before the end of the period. Tell them that you will discontinue the evaluation of their proposal.

[Guest Vern Edwards]

I just thought of something. When you amended the RFP, did you give them the opportunity to modify their propsals? I assumed that you did and that they declined, but I should not have assumed. My bad. If you didn't, that might explain their refusal.