Two Bids - One Technically Unacceptable

[Guest Vern Edwards]

ji20874, you said:

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 unnacceptability 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."

You're not being clear about what you mean by unacceptable.

To me, unacceptable means ineligible for award. The reason why a proposal is unacceptable has no bearing upon its status. Whether observed to be unacceptable by the CO upon receipt or later found to be unacceptable by evaluators, it is ineligible for award unless made acceptable by revision. Being unacceptable, such a proposal cannot be the basis for any tradeoff decision. You can't tradeoff any part of an acceptable proposal for some part of an unacceptable proposal and thus find the unacceptable proposal to be a better value. The unacceptable proposal is out of the game unless the offeror is giving a chance to revise its proposal and eliminate the deficiency.

I think you are making a distinction between unacceptability as legal ineligibility due to a material deficiency in an offer and as an expression of relative worth that has no bearing on eligibility. If so, such use of unacceptable as an evaluation rating is unwise, as I have discussed in this forum in the past. It can lead to misunderstanding and confusion. A subjective finding by evaluators that a proposal is unacceptable because it does not satisfy a requirement in the specification would, unless found to be in error, render the proposal legally unacceptable, not just not as good as the other proposal.

[Whynot]

All I was trying to do was to query the forum on how to award an IDIQ within an IDIQ. I speculated that the original poster’s solicitation that they were evaluating was for a task order that was itself an IDIQ. Given the requirements of FAR 16, such an IDIQ must be awarded to multiple contractors unless only one contractor is acceptable. My query was how to reconcile their being only one acceptable contractor with the solicitation’s best value evaluation requirement. I cited a case that highlighted the problem with such a reconciliation – or at least one way not to do it.

I sense that the forum did not understand that I was talking about a task order that was also an IDIQ not just a task order under an IDIQ.

[ji20874]

...such use of unacceptable as an evaluation rating is unwise...

I agree, Vern -- that's why I don't like to use UNACCEPTABLE as an evaluation rating. If the offer in question is unacceptable for legal ineligibility due to a material deficiency, then all the advice you gave fits. But if the offer is unacceptable as an expression of relative worth that has no bearing on eligibility, well, that's where I was trying to be helpful.

By the way, I'm sorry for offending you with my answer to your question about bids and offers -- that wasn't my question. I made my statement about bids in a context of stay in your lane for the benefit of the original poster, and I thought that was evident. Use of the term "bid" in the thread title could be confusing to those of us who use standard terminology, as well as to those who are trying to learn the ropes. I wish I knew how you expected me to answer your question.

[joel hoffman]

For DOD source selections, "unacceptable" is one of the mandatory, standard ratings for a deficient proposal and is not awardable. The rating term would be clearly defined in the evaluation criteria..There should be no misunderstanding or confusion about the definition of a rating if they and the other terms used are clearly defined.

"UNACCEPTABLE - Proposal does not meet requirements and contains one or more deficiencies. Proposal is unawardable."

I believe that a "deficiency" is also defined in the DoD's Standardized SS Procedures. If not, it should be.

For task order competitions, this rating might not be used. However, if it is used, the government should clearly define it and the other rating terms in the task order competition documents.

[Guest Vern Edwards]

By the way, I'm sorry for offending you with my answer to your question about bids and offers....

No problem. I was more annoyed than offended. I had expected you to say Thanks, that's what I meant.

[Guest Vern Edwards]

In the DOD system, "unacceptable" is not merely an expression of relative worth. An unacceptable proposal is one that fails to satisfy requirements and is therefore legally ineligible for award.

Deficiency is somewhat more problematical.It is defined in FAR 15.001 as meaning: "a material failure of a proposal to meet a Government requirement or a combination of significant weaknesses in a proposal that increases the risk of unsuccessful contract performance to an unacceptable level."

A material failure to meet a requirement would make a proposal legally ineligible. I'm not sure about a combination of significant weaknesses.

[C Culham]

I understand this is less than a timely post but in reading I concluded on two thoughts....

I do not get the references to either FAR Part 15 or 16 to address the OPS question. Shouldn't the real question be what does the parent IDIQ say? And if silent yes the guidance of 15 or 16 might help but are not prescriptive of the process the process that must be used.

To Whynot....you might look at the thread found here in WIFCON titled "can you issue an IDIQ off of of an IDIQ"

[Whynot]

Thanks here is the thread.

http://www.wifcon.com/discussion/index.php?/topic/749-can-you-issue-an-idiq-off-of-an-idiq/\

Good stuff, doesn't quite hit my question of how to make a single award IDIQ task order.

[Don Mansfield]

Whynot,

How do you place orders under an IDIQ task order?

[Guest Vern Edwards]

Carl:

The thread veered into FAR Part 15 beginning with Post #4. For a while ji20874, Joel and I were talking about that.

[Whynot]

I would imagine that for multiple award IDIQs you give fair opportunity and the award task order to a particular contractor - and if you have a single source IDIQ you just issue an order to the IDIQ contractor. My question to you is under a multiple award IDIQ how to you award an IDIQ Task Order to a single contractor?

[Guest Vern Edwards]

Criminy. That last post is disheartening.

Does government work at all?

We shouldn't give the government one more thing to do. It does not have the capability.

Not. One. More. Thing.

[ji20874]

Whynot,

My question to you is under a multiple award IDIQ how to you award an IDIQ Task Order to a single contractor?

See FAR 16.505( b )( 2 )( i ), Exceptions to the Fair Opportunity Process, and take your pick from ( A ), ( B ), ( C ), or ( D ).

[Boof]

Whynot,

Lets see how this works in an oversimplified example. Lets say you have four multiple award IDIQ contracts for various training classes. You have a requirement for one of the classes to be given multple times but at this point you know four dates/locations but do not know exactly how many more or where. So you would write a requirement (SOW, PWS, whatever) that states the known classes and approximately how many additional and provide it to the contractor(s) as a task order request (TOR). Then you would use fair opportunity to provide the TOR to one or more of the contractors awarded the IDIQ contracts. This could be by allowing all of them to compete for the task order or by justifying one of the execeptions to fair opportunity. Placing an order against an order is problematic so I would just use modifications to order up the maximum that was stated in the original TOR. Does this reflect what you are trying to do? If not, what did you mean?

I remember back in the good old days where none of this was necessary. Contractors could not protest the fair opportunity decisions of the CO so we could just award the known requirement and then award the additional work the same way when another requirement came up. It only took a few days to get a new proposal and award a new task order. Quick and easy is why IDIQ contracts were created. But people messed up on some huge delivery orders and the contractors earned protest rights. Now every requirement takes as long as a full and open competition and is just as complicated due to legal, Small business office, OIG, GAO and others all getting involved to ensure "fair opportunity". This usually means allowing all to propose. So what do we do - we combine the known and unknown requirements into one task order so that we don't have to go through that task order award pain again.

[Guest Vern Edwards]

What Whynot wants to know is this:

Suppose that an agency wanted to issue a task order under a multiple-award task order contract that will itself include an IDIQ ordering feature, so that the agency will be able to issue orders under the task order. Such an order would be what Whynot called an "IDIQ task order." In order to do that would the agency have to comply with the justification and documentation rule in FAR 16.504( c )(1)(ii)(D) concerning single-award task order contracts? Or, instead, could it give the multiple-award contractors a fair opportunity to be considered and then issue the task order to a single contractor?

His question is prompted by what happened in CW Government Travel, Inc. v. U.S., 110 Fed. Cl. 462 (2013). In that bid protest COFC case GSA conducted a FAR Part 15 source selection for award of a multiple-award task order contract then used its evaluation of the proposals to support award of a single-award contract. The COFC ruled that GSA's procedure did not comply with 16.504( c )(1)(ii)(D).

My answer to Whynot's question is that an agency cannot issue a single-award "IDIQ task order" under a multiple-award task order contract by conducting a fair opportunity process. Neither can an agency can use one of the fair opportunity exceptions in FAR 16.505( b )(2) to do so. I disagree with the process that Boof described in the first paragraph of Post #39.

I believe that an "IDIQ task order" under a multiple-award IDIQ contract would itself be a task order contract as defined by FAR 16.501-1, and so I believe that an agency would have to comply with FAR 16.504( c )(1)(ii)(D) in order to issue such an order to a single contractor.

[Boof]

Vern,

What do you find wrong about my paragraph one. I agree making the orders via Mod is unusual but I don't think we could ever get the contract writing system to award a delivery order against another delivery order. I was also not considering the order to exceed $103M.

[Guest Vern Edwards]

Boof, I don't know what the value of the order would be, and I don't care about the contract writing system. If you're going to issue a task order that has an IDIQ ordering clause in it, then I think you have to comply with FAR 16.504( c )(2)(ii)(D) as required. That's it.

Frankly, I think an "IDIQ task order" is harebrained. I don't know why anyone needs to write orders against an order unless it's to bypass the prescribed fair opportunity process. It's that kind of scheming and gaming that led to the mess you described in your second paragraph. Some people think that kind of thing is "innovative." But what it is is foolish.

If there is a multiple award task order contract for training classes, then every contractor should be able to conduct any class that might be ordered under the contract. When you need a class or series of classes, issue an order. The idea of using exceptions and writing task order mods "so that we don't have to go through that task order award pain again" just doesn't appeal to me. We should design our task order process to be less painful, instead. What happens when you engage in scheming and gaming is that you get a legislative or regulatory response that's designed to stop the practice, which only adds more burdens.

Finally, unless the contract expressly provides for it, the issuance of "IDIQ task orders" could prompt breach of contract claims from the other contractors, who could argue that the practice breaches the contractual obligation to provide fair opportunities for the award of each task order.

[joel hoffman]

It would seem to me that one could issue a task order to teach a series of classes, using a unit-priced line item with separate travel cost line item and perhaps a line item for student materials (per student). Why would you need to issue separate task orders?

There are ways to manage per class costs without having to issue separate task orders.

[Guest Vern Edwards]

Joel:

In Boof's scenario, the number of classes needed is not fully know at the time of order issuance. Issuing the "IDIQ task order" to one company and then placing further orders against it is supposed to eliminate the need to go through the fair opportunity process in the future.

[bob7947]

I would not use any gimmicks in an attempt to defeat the fair opportunity provisions of FASA. I have linked my last effort before retirement. Before I walked into the IRS procurement office, I had studied both the law and the legislative intent of FASA's fair opportunity process. I remember discussing the issues with the contracting officer. He said he had one opinion and I had another. Of course, my opinion was backed by law and his wasn't. To retire, I had to sell the content of the report to GAO's General Counsel--including the person who signs bid protests. I knew General Counsel would bite and they did. I retired in September 2003 and General Counsel finally issued it in July 2004. I wrote much of the attachment before I left as part of an auditing division and General Counsel issued it simply because they felt strongly about the issue. The auditing division didn't understand the issue once I left so it had to be done this way. In the first footnote, you will see that General Counsel had to make some contacts for themselves. That's part of their process of getting comfortable. You will not see me mentioned anywhere because it is a General Counsel product. If the senior attorney mentioned ever sees this, I apologize for initially acting as an arrogant ass but that was part of my getting comfortable process. Now, I'm just an old ass. You will find a link to this report under the appropriate Wifcon.com bid protest section.

The Federal Acquisition Streamlining Act of 1994 – Fair opportunity procedures under multiple award task order contracts.