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What if Offeror's Proposal Info and Past Performance Reference differ on relevancy?

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Offeror Acme submits a timely proposal to a solicitation. Acme's proposal contains a Past Performance (PP) Volume with narrative describing its performance on Three Past Contracts. On Past Contract #1, Acme described it as a $30 million total value contract for 5 years. Acme sends Past Performance Questionnaires (PPQs) to its PP references. Those PP references fill out the PPQs and provide them to the agency. When the agency reviews the PPQs, it finds the reference for Past Contract #1 states that the Past Contract #1 was for $24 million for 3 years. Assume that Past Contract #1 was a commercial contract for a private company, not a government agency.

QUESTION: What should the agency do? Should the agency believe the Offeror or the PP reference on what the total value and period of performance was for the contract?

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Offeror Acme submits a timely proposal to a solicitation. Acme's proposal contains a Past Performance (PP) Volume with narrative describing its performance on Three Past Contracts. On Past Contract #1, Acme described it as a $30 million total value contract for 5 years. Acme sends Past Performance Questionnaires (PPQs) to its PP references. Those PP references fill out the PPQs and provide them to the agency. When the agency reviews the PPQs, it finds the reference for Past Contract #1 states that the Past Contract #1 was for $24 million for 3 years. Assume that Past Contract #1 was a commercial contract for a private company, not a government agency.

QUESTION: What should the agency do? Should the agency believe the Offeror or the PP reference on what the total value and period of performance was for the contract?

Did you call the reference and DISCUSS/CONFIRM the info it sent? If so, did you mention the discrepanmcy?

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This is a fact pattern. Yes, the agency contacted the PP reference and confirmed the info it sent. The PP reference confirmed that their side of the story concerning the discrepancy and does not know why the offeror gave different information.

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I would tend to believe the respondent reference if I had confirmed the information until the proposer can otherwise clarify or refute them.

If you intend to conduct discussions and if the firm would otherwise be considered for inclusion within the competitive range, you can discuss the discrepancy during discussions.

If the discrepancy might be the deciding consideration on whether or not to include the firm in the competitive range for discussions, I believe that you can obtain a clarification concerning the discrepancy. The firm can't revise its proposal but can confirm or explain the discrepancy.

If you intend to award without discussions, you can also contact the firm for a clarification.


15.306 Exchanges with offerors after receipt of proposals.

(a) Clarifications and award without discussions. (1) Clarifications are limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.

(2) If award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror's past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.

(3) Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions. If the solicitation contains such a notice and the Government determines it is necessary to conduct discussions, the rationale for doing so shall be documented in the contract file (see the provision at 52.215-1) (10 U.S.C. 2305(B)(4)(A)(ii) and 41 U.S.C. 3703( a )(2)).

( b ) Communications with offerors before establishment of the competitive range. Communications are exchanges, between the Government and offerors, after receipt of proposals, leading to establishment of the competitive range. If a competitive range is to be established, these communications—

(1) Shall be limited to the offerors described in paragraphs ( b )(1)(i) and ( b )(1)(ii) of this section and—

(i) Shall be held with offerors whose past performance information is the determining factor preventing them from being placed within the competitive range. Such communications shall address adverse past performance information to which an offeror has not had a prior opportunity to respond; and

(ii) May only be held with those offerors (other than offerors under paragraph ( b )(1)(i) of this section) whose exclusion from, or inclusion in, the competitive range is uncertain;

(2) May be conducted to enhance Government understanding of proposals; allow reasonable interpretation of the proposal; or facilitate the Government's evaluation process. Such communications shall not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, and/or otherwise revise the proposal. Such communications may be considered in rating proposals for the purpose of establishing the competitive range;

(3) Are for the purpose of addressing issues that must be explored to determine whether a proposal should be placed in the competitive range. Such communications shall not provide an opportunity for the offeror to revise its proposal, but may address—

(i) Ambiguities in the proposal or other concerns (e.g., perceived deficiencies, weaknesses, errors, omissions, or mistakes (see 14.407)); and

(ii) Information relating to relevant past performance; and

(4) Shall address adverse past performance information to which the offeror has not previously had an opportunity to comment.

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Clarifications is problematic. What if the firm's answer is, the proposal info is correct, the reference is wrong? Who does the agency believe then? Assume this is award without discussions.

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See also this discussion at: http://www.wifcon.com/discussion/index.php?/topic/2755-proposal-pp-info-is-not-verified;-it-conflicts-with-pp-references-info-now-what/

"Proposal PP info is not verified; it conflicts with PP reference's info - Now What?"

Hmmm, you already asked this question in that thread.

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Clarifications is problematic. What if the firm's answer is, the proposal info is correct, the reference is wrong? Who does the agency believe then? Assume this is award without discussions.

And note the GAO case law, which appears to say, the "failure to include info in proposal" concept trumps the "too close at hand" concept:

We have recognized that in certain limited circumstances, an agency has an obligation (as opposed to the discretion) to consider "outside information" bearing on the offeror's past performance when it is "too close at hand" to require offerors to shoulder the inequities that spring from an agency's failure to obtain and consider the information. See, e.g., International Bus. Sys., Inc., B-275554, Mar. 3, 1997, 97-1 Comp. Gen. Proc. Dec. P 114 at 5. This doctrine, however, is not intended to remedy an offeror's failure to include information in its proposal. See Great Lakes Towing Co. dba Great Lakes Shipyard, B-408210, June 26, 2013, 2013 Comp. Gen. Proc. Dec. P 151 at 8; FN Mfg. LLC , B-407936 et al., Apr. 19, 2013, 2013 Comp. Gen. Proc. Dec. P 105 at 3. [*27] Where an offeror is in control of the past performance information contained in its proposal--and not reliant on third parties to submit that information--it exercises its own judgment as to the information that the agency should consider. See L-3 Servs., Inc., B-406292, [13] Apr. 2, 2012, 2012 Comp. Gen. Proc. Dec. P 170 at 12 n.10. Such circumstances are instead governed by the well established principle that offerors are responsible for submitting a well-written proposal with adequately-detailed information that allows for a meaningful review by the procuring agency. See Hallmark Capital Group, LLC, B-408661.3 et al., Mar. 31, 2014, 2014 Comp. Gen. Proc. Dec. P 115 at 9.

If no discussions contemplated then I would ask the proposer to prove that it is correct. It could provide a copy of the contract, for instance. If it does, then its up to you whether you follow up with the reference.

And when you do either, I advise that you actually contact the party(ies) orally to discuss. You might ask for written confirmation but a REAL, oral conversation will be clearer than ask-answer by email or other written methods.

Sorry - Please don't say that you already did the above. In the future, please don't ask general questions, then dribble out additional information as people try to answer. I don't mean to be rude but you previously asked the same general question in another thread.

Someone else may try to help.

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$30 Million for 5 years versus $24 Million for 3 years -- who cares? These seem equally relavant to me.

The discrepancy could be EASY to explain -- maybe $30 Million was the estimated price and $24 Million was the actual payout. Maybe 5 years was allowed for a period of performance but the superstar contractor did everything faster than expected (and at a lower price).

If you think the discrepancy is a big deal, and the answer to the question will make a difference in whether or not you award without discussions, then ask a clarification question. Just ask the %#!$ question and make clear it is only a clarification question. Or, if the answer to the question won't make a difference, forget about it and proceed with your award to whichever firm provided the best value.

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