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Two Bids - One Technically Unacceptable


Guest dw21

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I'm doing a tradeoff/best value source selection under FAR Part 16 where one of the two offerors has been determined technically unacceptable. Is there a FAR reference that formally directs me what to do next to award to the remaining offeror? Do I maintain the current path, establish the competitive range and document the best value determination? Or do I treat this much like I would LPTA as the remaining offeror will need to be evaluated for F&R price and it really only matters that their technical is at a minimum rated 'acceptable' or higher? thanks for the help.

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A source selection under FAR Part 15 (Subpart 15.3)?

Or, a fair opportunity consideration under FAR Part 16 (Subpart 16.5)?

Or something else?

You must answer the above question before anyone here can help you. Your first sentence has an error somewhere -- it has to be one or the other--

I'm doing a tradeoff/best value source selection under FAR Part 16 15...

I'm doing a tradeoff/best value source selection fair opportunity consideration under FAR Part 16...

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Really? You're doing a FAR Subpart 16.5 fair opportunity consideration for a task order under multiple-award contracts, but you're using FAR Subpart 15.3 procedures? FAR 16.505( b )( 1 )( ii ) clearly says the policies in FAR Subpart 15.3 do not apply to the ordering process. I wouldn't allow that approach in my office.

But, to answer your question -- let's just say this is a pure FAR Part 15 source selection.

  • You evaluate both offers (already done).
  • You find one unacceptable and one acceptable (already done)
  • Do you want to open discussions? Maybe you want to give the unacceptable offeror a chance to become acceptable? Or maybe you want to make the acceptable offeror better? Or both?
    • If so, you establish a competitive range -- a range of both offerors if you want to give the unacceptable offeror a chance to become acceptable, or a range of one offeror if you only want to make the acceptable offeror better.
    • You notify each offeror of its inclusion in or exclusion from the competitive range, and you conduct discussions with the offeror(s) in the competitive range.
  • Or, if you don't want to open discussions, but the acceptable offeror you received is awardable as-is, then you do not establish a competitive range. You simply select it as the best value offeror and make award without discussions.

You do not change from a tradeoff approach to a LPTA approach.

Oh, and you don't have two bids (as suggested in the title) -- you have two offers.

FAR Subpart 15.3 tells you everything you need to know about competitive range and discussions. FAR Subpart 15.5 tells you everything you need to know about notices to unsuccesful offerors.

All this said, though, you really should not be using FAR Subpart 15.3 source selection procedures in a FAR Subpart 16.5 fair opportunity consideration. Stay in your lane.

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Your first sentence has an error somewhere -- it has to be one or the other--

I'm doing a tradeoff/best value source selection fair opportunity consideration under FAR Part 16...

Why is "fair opportunity consideration" the correct term for describing use of the fair opportunity procedures at FAR 16.505? The term does not appear anywhere in Title 48 of the CFR.

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The FAR does not provide a formal name for fair opportunity considerations. I use that term descriptively.

See FAR 16.505( b )( 1 )( i ):

The contracting officer must provide each awardee a fair opportunity to be considered for each order...

Hence, fair opportunity consideration.

I don't want to call it a source selection -- when people do that, they get confused like the original poster and think that FAR Subpart 15.3, which is titled "Source Selection," applies. By calling it a fair opportunity consideration, I and others in my office can better tell the difference and stay in the right lane.

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I think the poster may be talking about awarding a single source IDIQ task order under a multiple award IDIQ parent contract.

With regards to FAR Part 16, the FAR only allows the agency to award an IDIQ to a single offeror upon determining that there is a single source that is qualified and capable of performing the work at a reasonable price (see FAR 16.504©(1)(ii)(D)). Otherwise you have to make multiple awards per FAR 16.504©. So, for a award of a single award IDIQ task order to go forward this determination has to be made.

But, the best value FAR Part 15 evaluation process described in the solicitation also needs to be completed – I think that is what the poster is asking. What comes first? FAR Part 15 or 16, or they happen at the same time, are they independent or dependent on each other? If there is only one acceptable offeror per FAR Part 16, does the evaluation then flip to a LPTA from a best value?

The problem is the single source IDIQ task order under a multiple award IDIQ parent contract. How do you do that?

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Guest Vern Edwards

Incompetent COs have entirely ruined the fair opportunity process. They were given a gift by FASA, and they rejected it. By doing so they turned a process in which offerors were to "be considered" (passive) into one in which they were required to actively compete, a la FAR Part 15, with all the attendant costs for both government and industry. Too sad. Too bad.

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Whynot, this is a task order or delivery order competition under an existing ("parent") ID/IQ. I think that ji pretty well outlined the process.

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I agree with ji as well. I think the problem the poster is having is similar to what is described in the following case.

http://www.wifcon.com/cofc/12-708.pdf

On the one hand, the RFP did require the agency to make a best value determination. On the other hand, the FAR nonetheless allowed the agency to award to a single offeror only upon determining that there is a single source that is qualified and capable of performing the work at a reasonable price. Here, the record demonstrates that the agency used a best value determination when it decided to award the contract to a single offeror. That is, the agency selected Concur because it was technically superior and priced lower than CWT. Such determination is inconsistent with FAR 16.504©(1)(ii)(D).

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No. Never. No way, no how. You do not convert from tradeoff to LPTA in what is intended to be a competitive FAR Subpart 15.3 source selection once you determine that there is only one acceptable offer and the other offer is unacceptable. No.

DO THE TRADEOFF

You simply do the tradeoff and make award to the offer that provides the best value (presumably, the acceptable offer). Or, if the interests of the Government are served by giving the unacceptable offer a chance to become acceptable, or if you want to make the acceptable offer better, establish a competitive range and open discussions.

Example:

. OFFER A OFFER B

Factor 1 unacceptable satisfactory

Factor 2 excellent satisfactory

Factor 3 satisfactory satisfactory

Factor 4 price $1.1 Million $1.4 Million

It is my decision that OFFER B provides the best value. I am unwilling to accept the risk associated with the unacceptable rating, and the benefits of OFFER B in Factor 1 easily merit the additional cost of OFFER B. I note OFFER A's excellent rating for Factor 2, but the benefits in that factor do not offset the risk associated with Factor 1, et cetera... /s/ SSA

ACKNOWLEDGE THAT YOU'RE NOW IN A NON-COMPETITIVE SITUATION

Or, instead of doing the tradeoff, you might acknowledge that you're in a non-competitive situation. This will depend on the reason that the other offer is unacceptable. Is it unacceptable because a factor was rated as unacceptable as not meeting the Government's needs in an acceptable manner? Or is it unacceptable because the offer was fundamentally flawed and represents a material deviation from the solicitation such that it cannot be evaluated at all? These are two entirely different situations. If the first scenario is true (a factor was rated as unacceptable as not meeting the Government's needs in an acceptable manner), you probably won't know until during or after the evaluation and you could remedy that by opening discussions (doing so is usually discretionary on the Government's part) -- do the tradeoff. But if the second scenario is true (the offer was fundamentally flawed and represents a significant non-compliance with or material deviation from the solicitation such that the offer cannot be evaluated at all), maybe you're in a non-competitive situation now. In such a case, you do not convert from tradeoff to LPTA. No. Never. No way, no how. You simply acknowledge that you have only one offer than are considering for award. You do not need to "evaluate" it using the factors established in the solicitation, but you may if you want to -- if so, you don't need to assign ratings. It is error to think of this as an LPTA approach -- an LPTA approach (like a tradeoff approach) only works in a competitive environment. But you do need to make sure the offer meets the Government's needs and the price is reasonable and so forth, and you may negotiate the price or other terms without invoking the FAR Subpart 15.3 procedures. BUT DO NOT ATTEMPT THIS IF YOU CAN'T TELL THE DIFFERENCE BETWEEN THE TWO SCENARIOS DESCRIBED ABOVE.

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Guest Vern Edwards
You simply do the tradeoff and make award to the offer that provides the best value (presumably, the acceptable offer)... Or, instead of doing the tradeoff, you might acknowledge that you're in a non-competitive situation.

You cannot do a tradeoff between an acceptable proposal and an unacceptable proposal, because an unacceptable proposal is ineligible for award. In order to do a tradeoff you first would have to get the offeror whose proposal was unacceptable to make it acceptable through discussions and a proposal revision.

And you are not in a "non-competitive situation" just because only one proposal is acceptable. You are simply in a situation in which the competition produced only one acceptable proposal.

I am interpreting "unacceptable" to mean legally unacceptable, i.e., legally ineligible for award. I am not using unacceptable as a factor rating under which a proposal could be considered poor (bad, undesirable, crummy) but still legally acceptable.

Finally, I disagree with this:

But if the second scenario is true (the offer was fundamentally flawed and represents a significant non-compliance with or material deviation from the solicitation such that the offer cannot be evaluated at all), maybe you're in a non-competitive situation now... You simply acknowledge that you have only one offer than are considering for award. You do not need to "evaluate" it using the factors established in the solicitation, but you may if you want to -- if so, you don't need to assign ratings.

How do you know that the one remaining offeror is acceptable if you do not use the criterial in the solicitation?

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Whynot.

FAR 16.504 is wholly irrelevant, if we're talking about a task order under an IDIQ contract. FAR 16.504 only applies to acquisitions for parent IDIQ contracts, either multiple-award or single-award. Nothing in FAR 16.504 applies to competitive or non-competitive acquisitions for task orders under already-awarded IDIQ contracts.

Vern,

Just because the technical evaluation team thinks an offer is unacceptable under a particular factor doesn't mean the SSA will agree with that assessment. So if we're in the first scenario I described (a factor was rated as unacceptable as not meeting the Government's needs in an acceptable manner), I am very comfortable proceeding with the tradeoff. If the unacceptable rating sticks, then that offer cannot be awarded and therefore cannot provide the best value -- but that offer can be discussed in the decision document. But one won't know this until after the unacceptable rating has been accepted by the SSA, which usually won't occur until after the evaluation is complete.

I'm sure the original poster would like to hear your advice on how to proceed when only one acceptable proposal is received in what was supposed to be a competitive acquisition.

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Guest Vern Edwards
Just because the technical evaluation team thinks an offer is unacceptable under a particular factor doesn't mean the SSA will agree with that assessment. So if we're in the first scenario I described (a factor was rated as unacceptable as not meeting the Government's needs in an acceptable manner), I am very comfortable proceeding with the tradeoff. If the unacceptable rating sticks, then that offer cannot be awarded and therefore cannot provide the best value -- but that offer can be discussed in the decision document. But one won't know this until after the unacceptable rating has been accepted by the SSA, which usually won't occur until after the evaluation is complete.

Sorry, ji, but that's all wrong. You cannot tradeoff something that is acceptable against something that is unacceptable. You cannot give up some acceptable, no matter what the price, to get some unacceptable at a lower price. Perhaps you need to explain what you mean by "unacceptable." Maybe you mean something different than I think you mean. Can an unacceptable offer be eligible for award? If so, what does unacceptable mean?

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Guest Vern Edwards
I'm sure the original poster would like to hear your advice on how to proceed when only one acceptable proposal is received in what was supposed to be a competitive acquisition.

If only one acceptable proposal is received and the price is fair and reasonable you can make an award, conduct discussions to make an unacceptable proposal acceptable, or you can amend or cancel the solicitation if the solicitation was unduly restrictive or otherwise materially flawed.

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Well that would certainly resolve a lot of my issues – can you provide more support for your position that an IDIQ Task Order is not an IDIQ Contract or not subject to FAR Part 16..

Whynot - ji said that 16.504 applies to the award of the ID/IQ "parent" contract. In this case, there are already existing ID/IQ contract holders (pool members) who are competing for a task or delivery order.

He is saying that the subject of the original post - task or delivery orders - fall under 16.505 - Ordering, not 16.504

I don't think that he said that "an IDIQ Task Order is not an IDIQ Contract or not subject to FAR Part 16".

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I agree with Vern. There is no "trade-off" applicable when you only have one technically acceptable offer to consider for award. It is a fundamental principle of government procurement* that all offerors must be treated on an equal basis to prepare their proposals - the requirements must generally be the same for all proposers.

YES - one should, in my opinion, decide if conducting discussions would be in the government's best interest. For instance, consider if it is probable that the lower priced offer could be made technically acceptable; if you think that you could get better pricing from the higher priced, technically acceptable offeror; if you could get better pricing and/or better performance from one or both of the firms; if the higher priced proposal exceeds the government's needs and you could save money by negotiating out excesses; etc. If so, then discussions are probably warranted.

*Citations available.

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Guest Vern Edwards

ji20874:

In Post #4 you wrote: "Oh, and you don't have two bids (as suggested in the title) -- you have two offers."

What's the difference between a bid and an offer? Did you mean You don't have two bids, you have two proposals?

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Vern,

Yes, we have to differentiate between those offers that are unacceptable upon submission and should be rejected even before the technical evaluation begins, and those whose unacceptability is discerned as a result of the evaluation process based on the judgment of the technical evaluators. In the former, it is the offer itself that is unacceptable. In the latter, it is perhaps a single factor that receives an unacceptable rating based on one or more deficiencies uncovered during the evaluation. I see these as different situations on a continuum, both relying on the same word "unacceptable."

I would edit your response in one way--

If only one acceptable proposal is received and the price is fair and reasonable you can make an award, conduct discussions to make an unacceptable proposal acceptable and/or to make the acceptable proposal better, or you can amend or cancel the solicitation if the solicitation was unduly restrictive or otherwise materially flawed.

I agree with the above (as edited) for the situation where the unacceptable offer is in the first category (offer is unacceptable upon submission and should be rejected even before the technical evaluation begins) -- for example, the solicitation calls for a sedan and invites a technical proposal for a tradeoff to select the best-value sedan, but the unacceptable offer proposes a pick-up truck -- reject the proposal as unacceptable, and proceed as written above with negotiations (if desired) and award to the other acceptable offer, with no need to establish a competitive range.

I disagree with the above for the situation where the unacceptability is discerned only through the subjective evaluation process -- for example, the solicitation calls for a sedan and the offeror proposes a sedan, but that offer is rated as unacceptable because the technical evaluators have a significant concern about the driver's ability to operate the vehicle safely because of placement of all the knobs and dials and so forth -- in this case, if one wants to negotiate the other acceptable offer, establishment of a competitive range is necessary -- or, if award without discussions will occur, the selecting official must consider the unacceptable offer.

But to the point of the original posting -- the contracting officer does either of the above without converting from a tradeoff process to an LPTA process.

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Vern,

You already know the answer. Let me just say that all bids are offers, but not all offers are bids.

Using the word "bid" to describe an offer submitted in a source selection under FAR Subpart 15.3 or a fair opportunity consideration under FAR Subpart 16.5 is inartful.

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Guest Vern Edwards

I don't need you to lecture me about bids and offers and the proper use of the word bid. You need to be more careful in what you say. I gave you a chance to clarify your remark and in thanks I get patronizing didacticism. Save it for the choir.

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