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Hello all,

 

I'm new to this contracting forum so please forgive me if this question has already been asked and answered before.

 

So I am in the middle of writing up my formal response to a protest I've received.  I've been searching the FAR up and down and can't seem to find the exact FAR reference I am looking for and was wondering if this forum could be of assistance.  I’ve looked in FAR parts 5, 10, 12, 13, 14, and 15, including DFARS references. 

 

The back story is:  a vendor provided us with a market research quote on 6/29/17.  Solicitation was posted on GSA from 8/14/17 - 8/18/17 and I received 3 quotes, including this vendor’s quote.  Their quote was found to be technically acceptable but was higher than their original market research quote and was not chosen for award because they did not provide the best value to the government with price being the determining factor.  They are protesting that we should have accepted their original quote from 6/29/17.  The FAR reference I am looking for should say something like "Quotes from offerors in response to a solicitation can only accepted."  Does anyone know of a reference like that in the FAR or a similar one that I can use for my formal protest letter?  The FAR references that I think might talk to this is:  FAR 13.106-2(a)(2), FAR 14.103-2, FAR 14.301(a)(1), FAR 15.201(c)(3), and FAR 15.208(a).

 

I attempted to resolve this issue through cordial conversations, according to the guidance in FAR 33 “Protests”, prior to the protest and I explained to the vendor that quotes can only be accepted in response to a solicitation, not market research quotes.  He didn't like that answer.  So now I'm in a protest.  I want to make it crystal clear to the vendor in my letter so as to avoid a GAO protest.  Thank you for your time and assistance!

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If you used GSA, why are you looking in FAR Parts 13, 14, and 15 when FAR 8.404(a) states:

Quote

(a) General. Parts 13 (except 13.303-2(c)(3)), 14, 15, and 19 (except for the requirement at 19.202-1(e)(1)(iii)) do not apply to BPAs or orders placed against Federal Supply Schedules contracts (but see 8.405-5). BPAs and orders placed against a MAS, using the procedures in this subpart, are considered to be issued using full and open competition (see 6.102(d)(3)). Therefore, when establishing a BPA (as authorized by 13.303-2(c)(3)), or placing orders under Federal Supply Schedule contracts using the procedures of 8.405, ordering activities shall not seek competition outside of the Federal Supply Schedules or synopsize the requirement; but see paragraph (g) of this section.

Maybe you'll find the answer to your question somewhere under FAR Subpart 8.4.

Also, this topic should be in a different sub-forum (probably Contract Award Process)...

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A veteran of these forums (and contracting generally) provided some of the best advice I've heard regarding reading/researching the FAR - always start with the "Scope, Applicability, and Definitions" (SAD) sections of any FAR Part or Subpart...otherwise, you may very well end up relying on inapplicable rules.

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Matthew Fleharty, you're totally right and I should've started there with the SAD....which is what they emphasis in much of the government contracting training classes!

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Dear Sir (or Ma'am),

i am in receipt of your protest to the agency of our award of a task (or delivery) order to _____ for __________.  The basis for your protest is that we relied on your quotation of 8/18/2017 in evaluation and award process, rather than your quotation of 6/29/2017.  

Your quotation of 6/29/2017 was sought for market research purposes, and was used for market research purposes.  Your quotation of 8/18/2017 was sought for a purchase, and was used for that purpose.  Your later quotation (of 8/18/2017) was materially different from your earlier quotation (of 6/29/2017).  One supposes you could have extended your earlier quotation if you wanted us to use it for our purchase, but you did not.  Instead, you provided a new quotation.  We reasonably used your new quotation for our evaluation and award process.

There is no basis for your argument that we should have used your earlier quotation instead of your later quotation for our evaluation and award process.  Your protest is denied.

i appreciate your interest in Government procurement.  

/s/

Contracting Officer

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el conejo,

You don't need a citation.  The protester didn't give you a citation.  There is no basis for the protester's argument, so the protest can be denied because the protester failed to establish the basis of the protest.

 

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el conejo, one thing you did not say is what the RFQ said about evaluating quotes.  I suggest that you look again at the RFQ to make sure there is nothing there that would give the contractor a basis for a protest.

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Send this or something like it.

===========

The following is In response to your protest that we should have considered your quote of June 29 when making our decision to award an order under RFQ XXXXXXXXXXXX, which was issued on August 14.

We requested and received an informal quote from you on June 29 as part of our market research to determine how much money we would need to make a buy. After our market research we issued a formal request for quotations (RFQ) on August 14, which initiated the actual competition.

You submitted a new quote, which we considered, but that quote was higher than the one you submitted on June 29 and too high to be the winning quote. We could not consider the quote you submitted on June 29 because you did not submit it in response to our formal request and it thus did not reflect the terms in that request. We are bound by law to conduct competitions in accordance with the terms of our formal requests. See Federal Acquisition Regulation (FAR) 8.405-1(d)(4), which says: "The ordering activity contracting officer shall ensure that all quotes received are fairly considered and award is made in accordance with the basis for selection in the RFQ." Emphasis added.

We regret that you increased your price in your new quote, but that was your right. We made our ultimate decision in strict accordance with the requirements of FAR Subpart 8.5, the terms of the GSA schedule contract, and the terms of our formal request for quotations.

While we understand and regret your disappointment, we cannot accede to your protest. We hope that you will participate in the future if we make another buy. We look forward to the chance to do business with you.

Sincerely...

===========

If that reflects the truth, send it or something like it in tone. Don't write like an uppity bureaucrat. Write like one businessperson to another.

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Vern and ji – Have you gone too fast?

I say this wondering a GSA what – GWAC or a multiple award schedule.   If a GWAC order the ability to protest narrows to certain things and as such the letter may want to so state to help educate the contractor.

Likewise and while your approach does most likely apply, left unasked is what the value of the need was as I could see the contractor being dazed, confused and upset (yet not in a position to have a protest sustained) if the need was over the micro-purchase threshold yet under the SAT where one has the ability to simply contact 3 contractors to get pricing and from there move to a purchase without issuing an RFQ.

Overall, I am just a little concerned that all the facts are not known because requesting a contractors market pricing quote for a GSA buy seems a little strange to me when one can simply look at their pricing by reviewing their schedule contract. 

Sometimes the simple is more complicated!

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C Culham:

On 10/6/2017 at 6:32 AM, C Culham said:

Overall, I am just a little concerned that all the facts are not known because requesting a contractors market pricing quote for a GSA buy seems a little strange to me when one can simply look at their pricing by reviewing their schedule contract.

My experience in this forum is that we never get all the facts. People who ask questions here don't know what facts we need, and I no longer have the patience to interrogate them. I will no longer ask for more info.

I wouldn't have posted in this thread at all except that I wanted to suggest a soft tone of response to the protest. I provided sample language. The OP will do with it what he'll do with it. As I told him, if my sample language reflects the truth, then he can use it or something like it. If not, he should reject it.

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On 10/6/2017 at 7:55 AM, Vern Edwards said:

My experience in this forum is that we never get all the facts. People who ask questions here don't know what facts we need, and I no longer have the patience to interrogate them. I will no longer ask for more info.

Isn’t that the truth.

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