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Solicitation questions and answers

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Are the rules for solicitation questions and answers spelled out anywhere in the FAR or elsewhere?  My search did not find them.

I'm thinking of situations where the solicitation has a date to submit questions by, but that date is now in the past, and

(a) I have a new question, or

(b) the Q&A are published and the answers open more questions, or

(c) the Q&A are published, but the answer provided does not answer the question that was asked.

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lotus,

There are no rules.

A prospective offeror may ask a question about a solicitation at any time.  However, the contracting officer is not required to answer any question.

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ji is essentially correct.  However, a contracting officer who does not answer a question seeking clarification of a solicitation runs the risk of having a successful constructive change claim asserted by the contractor.

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Or the risk of a pre-award protest. Contractors have to protest “alleged improprieties in a solicitation that are apparent prior to the closing time for receipt to proposals" before the proposal due date - so if a contracting officer will not clarify an RFP, contractors have a strong incentive to protest.

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I agree with all three post above "lotus." I would suggest (as it has worked well for me) that you establish a date for the Q&A to posted, via an amendment, and also establish a date for all questions to be submitted.

I would also stat in that amendment that, "I will take and answer questions on an individual basis hereafter, as long as they are submitted electronically and not already answered in the solicitation."

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13 minutes ago, Constricting Officer said:

I would also stat in that amendment that, "I will take and answer questions on an individual basis hereafter, as long as they are submitted electronically and not already answered in the solicitation."

What do you mean by "will take and answer" and "an individual basis"?

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Matthew Fleharty:

It means after I have posted the Q&A to FBO, via amendment, I will not do so again.

I will answer questions after that point, if received and applicable, but only to the entity who ask.

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12 minutes ago, Constricting Officer said:

Matthew Fleharty:

It means after I have posted the Q&A to FBO, via amendment, I will not do so again.

I will answer questions after that point, if received and applicable, but only to the entity who ask.

In that case, why wouldn't a prospective offeror simply wait to ask questions until after your deadline passes so that they are the only ones with that information?

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I require the deadline for questions to be submitted and the date I will post the Q&A to FBO, in the Solicitation.

Not until posting that amendment do I make that statement on the SF 30.

To this point it has worked well and I have received little to no additional questions.

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4 minutes ago, Constricting Officer said:

To this point it has worked well and I have received little to no additional questions.

Famous last words: "To this point it has worked well..."

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3 hours ago, Constricting Officer said:

I will answer questions after that point, if received and applicable, but only to the entity who ask.

Dumb. If you answer a question for anybody, best practice is to provide the answer to everybody.

But a person has to do what a person thinks is right. 

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I agree that the Q&A's should be made available to all bidders to a solicitation.  My question pertains to a construction solicitation.  One of the prospective quoters asked me to approve of an alternative material for the project. The material was acceptable to the project engineer.  I hesitate to answer the question to all prospective quoters because the awareness of the alternative material (although commercially available), would possibly destroy the competitiveness of the quote if others are not aware of that alternative material.  Would you agree?  Is it appropriate to answer directly to the quoter in this case?

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If the solicitation doesn’t permit alternate materials, approving such would be a deviation from and a change to the solicitation requirements. In that case, you would have to amend the solicitation to allow all “bidders” or “quoters” to compete on an equal basis. It is a fundamental principle in competitively negotiated federal acquisition that a proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award. See discussion, for example, at:
http://www.wifcon.com/pd15_305.htm

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If the solicitation does permit the use of alternative materials, I would say that it would be appropriate to respond directly to the individual quoter, depending upon the actual solicitation language. 

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Gentlemen,  The solicitation was written as "Brand name or equal" and all bidders were on equal footing.  I was just a little "conflicted" as I believe in making all clarifications  available to all, but I also believe in the right to a certain "competitive advantage" in that realm.  I greatly appreciate your input! 

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I don't think that you would be required to disclose your answer to other quoters.

I've never thought of the problem of technical transfusion (i.e., revealing one offeror's technical solution to another offeror) in regards to answering questions about the solicitation, but I see that it could potentially happen.

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1 hour ago, MAJFJPKO said:

Gentlemen,  The solicitation was written as "Brand name or equal" and all bidders were on equal footing.  I was just a little "conflicted" as I believe in making all clarifications  available to all, but I also believe in the right to a certain "competitive advantage" in that realm.  I greatly appreciate your input! 

I am not sure if my position is inconsistent with all the others. If the solicitation was brand name or equal, I would not tell any bidder whether their pre-bid selection of a particular "equal" brand name was acceptable or not. I believe that is a matter for evaluation of the bids.

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7 hours ago, joel hoffman said:

If the solicitation does permit the use of alternative materials, I would say that it would be appropriate to respond directly to the individual quoter, depending upon the actual solicitation language. 

I reviewed “Formation of  Government Contracts“. In reviewing the discussion of fairness and legal prohibitions on revealing another firm’s (conforming) technical approach or innovative solution to the solicitation requirements (e.g., technical transfusion) I realize that the perspective is under the area of prohibited discussions with proposers after receipt and evaluations of proposals.  

However, the same fairness concepts should generally apply to pre-proposal communications.  That doesn’t necessarily mean that pre-proposal questions concerning general clarifications of the requirements can’t be shared . One has to use some judgement . 

 

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18 hours ago, MAJFJPKO said:

The solicitation was written as "Brand name or equal" and all bidders were on equal footing. 

So is provision 52.211-6 in the solicitation as the FAR provides that it should be?   If so I would suggest that Neil Roberts has the right idea.   Per the provision your effort would be at time you are evaluating for award.  Much comes into play regarding salient characteristics that is best illustrated by reading some pertinent GAO cases found here -http://www.wifcon.com/pd11_104.htm .

I think pre-approval, or in other words telling an offeror that their equal is fine in meeting salient characteristics  or not fine prior to evaluation is a slippery slope.   All kinds of scenarios come to mind depending on the evaluation process you plan to use whether it be price only to something of increased complexity as it relates to the determining an equal being acceptable.

The above said in your current scenario I have a problem that you might have an un-level playing field in that you are giving one contractor an advantage of pre-approval (that strongly suggests acceptance of the equal)  while  not providing that same accommodation to others (whether they ask or not).   Noting this and having seen pre-approval used in a two-step bidding one might consider a amendment to your solicitation stating that all offerors can submit “or equals” prior to solicitation close and that the government will evaluate them on a an individual basis and provide feedback to the specific offeror as to acceptability.   You might even state that such submissions must be provided within XX days of close to allow adequate time.   You might even state that the governments reserves right of final acceptance of the equal at contract award.  Then at close of solicitation and during evaluation you will find out if the contractor provides the equal you saw, the equal you have never seen or the brand name and go from there.

What do others think?

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22 hours ago, MAJFJPKO said:

My question pertains to a construction solicitation.  One of the prospective quoters asked me to approve of an alternative material for the project. The material was acceptable to the project engineer.  I hesitate to answer the question to all prospective quoters because the awareness of the alternative material (although commercially available), would possibly destroy the competitiveness of the quote if others are not aware of that alternative material.  Would you agree?

No, I don't agree. See FAR 1.102-2(c)(3):

Quote

(3) The Government shall exercise discretion, use sound business judgment, and comply with applicable laws and regulations in dealing with contractors and prospective contractors. All contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same.

Emphasis added. What that means is that similarly situated prospective contractors must be treated similarly.

If the answer to a question might be of general interest, and if it would potentially be of benefit to other prospective bidders or offerors, then if you answer the question you should provide the question and answer to all prospective bidders or offerors.

The question about a substitute material for a brand name or equal product is a question about the interpretation of the solicitation. The submission of a question about the interpretation of a solicitation does not entitle the questioner to a private answer. Moreover, a question asked in advance of the submission of a bid or proposal should not be treated as a proprietary matter. I would refuse if a questioner were to ask me for a private answer to a question about the interpretation of a solicitation.

Finally, I think Neil Roberts has made a good point. The government does not owe any prospective bidder or quoter an advance decision about a proposed equal product, unless the prospective bidder or offeror asserts that the solicitation is unclear or ambiguous about the salient characteristics of an equal, in which case the CO should amend the solicitation if he or she agrees that the solicitation should be clarified.

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5 hours ago, C Culham said:

So is provision 52.211-6 in the solicitation as the FAR provides that it should be?   If so I would suggest that Neil Roberts has the right idea.   Per the provision your effort would be at time you are evaluating for award.  Much comes into play regarding salient characteristics that is best illustrated by reading some pertinent GAO cases found here -http://www.wifcon.com/pd11_104.htm .

I think pre-approval, or in other words telling an offeror that their equal is fine in meeting salient characteristics  or not fine prior to evaluation is a slippery slope.   All kinds of scenarios come to mind depending on the evaluation process you plan to use whether it be price only to something of increased complexity as it relates to the determining an equal being acceptable.

The above said in your current scenario I have a problem that you might have an un-level playing field in that you are giving one contractor an advantage of pre-approval (that strongly suggests acceptance of the equal)  while  not providing that same accommodation to others (whether they ask or not).   Noting this and having seen pre-approval used in a two-step bidding one might consider a amendment to your solicitation stating that all offerors can submit “or equals” prior to solicitation close and that the government will evaluate them on a an individual basis and provide feedback to the specific offeror as to acceptability.   You might even state that such submissions must be provided within XX days of close to allow adequate time.   You might even state that the governments reserves right of final acceptance of the equal at contract award.  Then at close of solicitation and during evaluation you will find out if the contractor provides the equal you saw, the equal you have never seen or the brand name and go from there.

What do others think?

I agree that the government shouldn’t have pre-approved an “or equal” prior to receipt of bids or offers, unless the solicitation specifically authorized that.  I should have clarified that I agreed with Neil Roberts. 

I have seen solicitations that required the proposers or bidders to identify the proposed “ or equal substitute” with the bid or offer.  It would then be formally evaluated as technical acceptable or unacceptable prior to the decision to award to that firm. 

In this case, the scenario involved a voluntary (informal?) and exclusive approval for one interested offeror prior to a contractual relationship or prior to the evaluation process. 

So, has the government unfairly upset the balance of the competitive process?  Should they now either allow any prospective bidder/offeror to ask or require identification of proposed substitutions? 

If this is an RFP, it would be simple enough to amend the evaluation criteria to require proposers to formally identify proposed  “or equal” substitutes with their offers. If they have inadvertently created an unfair advantage,  I’d think that such would be a good, relatively simple solution. 

A possible complication could arise if a formal evaluation results in rejecting the previous, informal approval. In that event, further action might be warranted. 

 

 

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1 hour ago, joel hoffman said:

I have seen solicitations that required the proposers or bidders to identify the proposed “ or equal substitute” with the bid or offer.  It would then be formally evaluated as technical acceptable or unacceptable prior to the decision to award to that firm. 

See FAR 11.107(a) and 52.211-6.

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So, MAJFJPKO, is that Provision in this solicitation? 

If not, I suggest that you amend the solicitation to add it per the prescription at 11.107 (a).  

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Gentlemen,

I thank you all again for your input.  A disclosure that I should have made, and I apologize for the omission:  I was a Contracting Officer as a member of the military until my retirement in 2014.  I now work as a Contracting Officer for a Public Transit provider in a large city and as such, we are a quasi-governmental organization.  We are subject to the FAR when we are incorporating Federal Grant money into a project, but covered by the Uniform Commercial Code and "contracting by negotiation" otherwise.  It is an interesting situation in that we have to navigate between the strictness of the FAR and the somewhat murky and as I see it, "unmapped" world of commercial contracting as covered loosely by the Uniform Commercial Code.  This particular solicitation did not incorporate any Federal monies and although not covered by the FAR, it does have many of the same principles.

Thanks again for the input! 

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