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Non-Responsive proposal


siwilliams

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I'm curious about the process of taking exception to terms & conditions in a competitive solicitation. I'm always hesitant to take exception to items for fear that our proposal would be deemed nonresponsive. However, I'm not 100% sure on which items other than not meeting the technical criteria, delivery schedule or something like debarment would automatically eliminate a company from competition. Typically things like unlimited rights in technical data are something to which I'd like to take exception. Would this get my proposal automatically thrown out, should I just bring it up during question/answer period and hope it's eventually eliminated, or try to negotiate after award?

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Non-responsive is not the same as technically unacceptable. Non-responsive implies that the Offeror did not respond to a material element of the solicitation. Technically unacceptable is where the Offeror failed to meet a minimum technical requirement. Taking exception to a requirement may result in your proposal being technically unacceptable, but non non-responsive. The key word there is may because it depends on the evaluation criteria in the solicitation.

Not all solicitations require that the offeror comply with all technical requirements. For example, some include a subjective evaluation of how well the proposal meets or exceeds the technical requirements. My first recommendation would be to read the evaluation criteria.

Second, it makes sense to ask the contracting officer about the requirement well before the solicitation closing date. In the example of data rights, you could try to make a case for why the data rights clause is incorrect. It would not be unheard of where the CO included the incorrect data rights clause. If the CO refuses to change the clause, you need to access whether it is worth the risk accepting the governments terms and submitting a proposal.

Debarment is a completely different scenario. If you are debarred or suspended, the agency would likely determine your firm as not responsible. The agency would need to justify why it was in the agency's interest to award to a debarred or suspended firm.

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Guest Vern Edwards

The concept of responsiveness applies to acquisitions conducted by sealed bidding (FAR Part 14). It does not apply to acquisitions conducted by competitive negotiation (FAR Part 15). See e.g. Carlson Wagonlit Travel, GAO B-287016, 2001 CPD ¶ 49 (March 6, 2001) at Note 1:

Although the solicitation refers to responsive and nonresponsive proposals, the concept of responsiveness is not applicable to negotiated procurements. Where a proposal submitted under a negotiated procurement fails to meet a material requirement of the RFP, it is unacceptable, not nonresponsive. Blocker, LDA, B-282122.3, Aug. 2, 1999, 99-2 CPD ¶ 25 at n.1.

So nonresponsiveness and unacceptability arise from the same kind of defect. The distinction is that sealed bidding is conducted without discussions, so a nonresponsive bid is dead on arrival with no chance of resurrection, while in a negotiated procurement an unacceptable proposal could be kept in the competitive range and the defect which made it unacceptable eliminated through discussions and by submission of an acceptable final proposal revision. However, there is no guarantee that the government will conduct discussions or include the proposal in the competitive range. Submitting a unacceptable proposal is very risky.

As a general rule, a solicitation requirement is "material" if failure to satisfy it would affect price, quantity, quality, or delivery.

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How do you know the offeror is not small?

If the offeror didn't check the "right" block in the reps and certs, or checked the "wrong" block, well, I suppose the offer is unacceptable. I wonder about any duty that falls on you to allow the offeror to correct its mistake -- generally, a contracting officer has some flexibility to waive informalities and minor irregularities in proposals.

If the offeror did check the "right" block in the reps and certs, well, we're supposed to be able to rely on the offeror's self-certification and use the process at FAR 15.503( a )( 2 ) to let its competitors tell us otherwise.

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It's presumed you're referring to technical data as defined under 41 USC 116. If so, then I'd offer the following.

When Intellectual Property (IP) issues are as stake, the only way to adequately address those are during the solicitation stage with the Q&A as you've already pointed out. You really can't take exception to the IP clause during your submission with the hope to receive an award and also adopts your exception. There are, however, steps you can take to identify that which is excluded from the grant of unlimited rights by marking the appropriate page or pages as trade secret, commercial, financial, confidential or privileged and in turn, a grant of limited (or restricted) rights will be granted. The marking of such is not dispositive of whether such is, in fact, excluded from unlimited rights - only that the Government is placed on notice that the contractor believes such to be true. If you haven't already, you may wish to carve out your technical data under 52.227-15(B)(2) Representation of Limited Rights Data and Restricted Computer Software in the solicitation and also under your SAM.gov reps and certs, if appropriate.

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