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Good night,

On a FAR 15 Solicitation, Can an agency refer a company to a COC for a responsibility technical factor that was stated as pass/fail in the solicitation and then withdraw the referral and disqualify the company for material omission?  Can this be seen as an excuse to disqualify a contractor that was perceived to be non responsible on a pass/fail technical factor?  What if the agency then decide to conduct discussions with the non-eliminated contractors?  Is the agency required to conduct discussions also with the eliminated contractor?  

By the way the proposal had the provision for FAR  52.214-7 and 52.215-1 however the proposal states that some prices will "be inserted after negotiations" (and negotiations are considered discussions).

Another fact is that the solicitation didn't mention that there was going to be a competitive range. 

I know these are many questions but I will explain further if needed.

 

Thanks 

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Culham,

Thanks for your response I have read most of the post you mention however many of the cases are related to large business were the SBA COC procedure does not apply.  I understand that Further, it is the offeror’s responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation and allows a meaningful review by the procuring agency.  How ever the GAO has stated that a responsibility factor can not be converted in a responsiveness factor by the procuring agency (I apologize for not having reference but I believe it was from the latest Coastal-Enviroworks case at the COFC).

 Therefore back to the question: Can the agency eliminate the proposal as unacceptable in a pass/fail responsibility factor or does it have to refer the case to SBA no mater how deficient the proposal was in that factor? 

The solicitation didn't mention the Alternate No.1  

Thanks for referring me to FAR 15.307.  For what it says a contractor not included in the competitive range does not have right to revise his proposal.  However I have read various GAO cases (I apologize for not having the reference again) and in one of the them the protester was alleging that the agency should have not disqualified him and instead should have left him revise his proposal to correct some deficiencies.  However GAO said something along the lines of: If the agency decides to award the contract without discussions then we will dismiss the protest however if the agency decides to conduct discussions then we expect that the agency allows the protester to revise his proposal.

It seems to me that in complex FAR 15 solicitations there are so many requirements that submitting each and every details is a very difficult task.  That being said I believe that within FAR 15.307 context an agency could eliminate a contractor from the competitive range due to one omission while leaving other contractor that could also have omissions not detected by the agency.  This will lead to the unfair scenario where a contractor in the competitive range could revise its proposal trough discussion and an eliminated contractor could not.   Is this the way it is?

Thanks again for your input

 

 

 

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2 hours ago, IAD said:

Can the agency eliminate the proposal as unacceptable in a pass/fail responsibility factor or does it have to refer the case to SBA no mater how deficient the proposal was in that factor? 

Generally speaking the agency would have to refer for a COC however details count so you might want to read the cases in this area of WIFCON.

http://www.wifcon.com/pd19_6022.htm

 

2 hours ago, IAD said:

Coastal-Enviroworks case at the COFC

  Is this the reference you noted? https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2015cv1550-35-0   If so my read of the of the decision is a little different than yours as it relates to the COC. My read is that is was concluded by the court that the agency was proper in referring Enviroworks for a COC where another contractor Lawson thought they should not be and in so doing a COC was granted even though it might be concluded that Enviroworks key personnel did not meet the pass/fail test.

2 hours ago, IAD said:

Is this the way it is?

Yes I guess the situation could occur.   But my view is that it is a double edge sword so to speak.   If I was the contractor left in competitive range I would be happy if such a situation occurred, if I was the contractor that was eliminated, well I would be unhappy if I knew the situation to be factual true, but proving it to be factually true to the point where I would protest would difficult I would think.  Seems the above noted COFC case demonstrates how hard it would be to prove.

 

PS - Bob just beat me to the punch on the WIFCON reference but since I went to the effort to type this up I am posting anyway.......

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Since it depends upon the specific facts and circumstances, that might be a good reason to engage  the services of a lawyer to research and advise you. The reason I say "might" is because there are time limitations which could encourage filing a timely protest without a well researched basis; some protest lawyers may advise to pull the trigger w/o research (they smell a fee?) ; the legal costs might not be worth the possible gain, etc. 

The answers to questions such as who determined that it was a "responsibility technical factor", what was the factor, why is it considered to be a "material omission", what did you omit, etc., could determine the answer.  You appear to be asking here for free legal research based upon a vaguely described scenario.  A good , paid lawyer wouldn't provide you legal advice or opinion without all the specific facts. 

In my organization, a KO would generally consult with legal counsel before taking the actions that you are questioning.

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