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Contract Awarded with a deficiency / unacceptable

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I am searching for a GAO or COFC case (protest)

(1) where a federal contract was awarded [as evaluated under FAR Part 15] when there was a 'deficiency' in the proposal,

or

(2) where the proposal was declared 'unacceptable' by evaluation [evaluated as unacceptable, yet was the least unacceptable proposal]

Thank you

Barry

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I am searching for a GAO or COFC case (protest)

(1) where a federal contract was awarded [as evaluated under FAR Part 15] when there was a 'deficiency' in the proposal,

or

(2) where the proposal was declared 'unacceptable' by evaluation [evaluated as unacceptable, yet was the least unacceptable proposal]

Thank you

Barry

All you want is a case? Any case? There are many such cases. Hundreds. If you awarded a contract on the basis of a proposal that contained a deficiency and you get a protest you are going to lose. Period. End of story. That's Source Selection 101.

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I am searching for a GAO or COFC case (protest)

(1) where a federal contract was awarded [as evaluated under FAR Part 15] when there was a 'deficiency' in the proposal,

or

(2) where the proposal was declared 'unacceptable' by evaluation [evaluated as unacceptable, yet was the least unacceptable proposal]

Thank you

Barry

Barry, Although I didn't find any cases direct to your point, I find several plus the FAR Requirement to support the fundamental principle that the proposal must not deviate in a matrial way from the RFP requirements. See WIFCON Protest page at http://www.wifcon.com/pd15_305.htm. Here are some cites and background:

"In negotiated procurements, a proposal that fails to comply with the material terms[2] of the solicitation should be considered unacceptable and may not form the basis of award." Nordic Air, Inc., B-400540, Nov. 26, 2008, 2008 CPD para. 223 at 3."

See also FAR 15.206 (d), which requires the government to amend the solicitation if a proposal of interest deviates from the stated solicitation requirements. If you are in contracting you should know this.

"Although the concept of responsiveness or ?an unconditional promise to comply with the terms of a solicitation,? does not apply directly to negotiated procurements, offers must comply with the material terms and obligations in a SFO to merit consideration. Gardiner, Kamya & Assocs., P.C., 1995 WL 19599, B-258400, 95-1 CPD ? 191, *2 n.1. Stated inversely, ?[a] proposal that fails to satisfy a material solicitation term is unacceptable and may not form the basis for an award.? Integrated Business Solutions, Inc. v. United States, 58 Fed. Cl. 420, 428 (2003) (citing Marisco, Ltd., 1989 U.S. Comp. Gen. LEXIS 719, B-235773, 89-2 CPD ? 8; Minigraph, Inc.-Recon., 1990 U.S. Comp. Gen. LEXIS 1350, B-237873.3, 90-2 CPD ? 492). " (Tin Mills Properties, LLC v. U. S. and Glenmark Holding, LLC, No. 08-375C, July 15, 2008)

"It is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award. See TYBRIN Corp., B‑298364.6; B‑298364.7, Mar. 13, 2007, 2007 CPD para. 51 at 5." (The Boeing Company, B-311344; B-311344.3; B-311344.4; B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008) (pdf)

So, I suppose you could conclude that if you award a nonconforming proposal and there is a protest, you will most likely lose.

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All you want is a case? Any case? There are many such cases. Hundreds. If you awarded a contract on the basis of a proposal that contained a deficiency and you get a protest you are going to lose. Period. End of story. That's Source Selection 101.

Great!! That's what I am seeking -

Vern, can you reference THREE cases for me. I have been searching for at least 15 manhours, and I cannot find.

Agreed, that if I awarded a contract on the basis of a proposal which contained a deficiency, and if I got a protest, I would lose. Please ignore 'informational deficiency', and I am looking for a negotiated procurement using FAR Part 15

My position is that, given my understanding of deficiency, it is not possible to award a contract. 'Deficiency', to me, describes a condition where one of the elements of a [valid] contract is missing.

With out that missing element, then a contract is not a contract.

OK, just three GAO or COFC cases where the Govt Contracting Officer did award a contract, and it was put down by protest (or even ignored due to lack of standing or jurisdiction or what-ever).

Many thanks.

Barry

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What, exactly, do you need the decision to say?

To show [say] that a government contract was awarded, where the Government recognized that the proposal had a deficiency, and the deficiency was recognized by the Government at the time the Government made the award.

I mentioned to my supervisor that I came across such a case [protest], and my supervisor appropriately responded, "show me." Now I cannot find the example.

All of the referenced cases and points which were graciously - previously mentioned are solid. I am searching for an aberration, something which should never have been allowed to happen, and yet did happen. An award was made in light of an existing and true proposal deficiency.

Barry

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To show [say] that a government contract was awarded, where the Government recognized that the proposal had a deficiency, and the deficiency was recognized by the Government at the time the Government made the award.

I mentioned to my supervisor that I came across such a case [protest], and my supervisor appropriately responded, "show me." Now I cannot find the example.

All of the referenced cases and points which were graciously - previously mentioned are solid. I am searching for an aberration, something which should never have been allowed to happen, and yet did happen. An award was made in light of an existing and true proposal deficiency.

Barry

Try these two:

Systems Management, Inc, Comp Gen B-287032.4, Apr 16, 2001, 2001 CPD, ? 85

Cortland Memorial Hospital, Comp Gen B285890, Ma4 5, 2001, 2001 CPD, ? 48

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Great!! That's what I am seeking -

Vern, can you reference THREE cases for me. I have been searching for at least 15 manhours, and I cannot find.

Agreed, that if I awarded a contract on the basis of a proposal which contained a deficiency, and if I got a protest, I would lose. Please ignore 'informational deficiency', and I am looking for a negotiated procurement using FAR Part 15

My position is that, given my understanding of deficiency, it is not possible to award a contract. 'Deficiency', to me, describes a condition where one of the elements of a [valid] contract is missing.

With out that missing element, then a contract is not a contract.

OK, just three GAO or COFC cases where the Govt Contracting Officer did award a contract, and it was put down by protest (or even ignored due to lack of standing or jurisdiction or what-ever).

Many thanks.

Barry

Why do you think you don't have a contract if the offeror proposes with a deficiency and the government accepts knowing the deficiency?

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Try these two:

Systems Management, Inc, Comp Gen B-287032.4, Apr 16, 2001, 2001 CPD, ? 85

Cortland Memorial Hospital, Comp Gen B285890, Ma4 5, 2001, 2001 CPD, ? 48

Thanks for all your help. I wish to close out my request.

Joel, these did not fulfill my search, but are intreresting in themselves:

Matter of: Systems Management, Inc.; Qualimetrics, Inc.

File: B-287032.3; B-287032.4

Date: April 16, 2001

DIGEST

Protest is sustained where the procuring agency improperly relaxed for the awardee

a mandatory solicitation requirement that the weather observation system be

certified by the Federal Aviation Administration, yet did not notify the offerors of its

changed requirements, and the record evidences that the protesters were prejudiced

because they could have proposed different systems if they had been apprised of the

agency?s actual requirements.

Matter of: Cortland Memorial Hospital

File: B-286890

Date: March 5, 2001

DIGEST

Protest of agency?s source selection is sustained where contemporaneous

documentation does not establish that the selection was consistent with the

solicitation?s evaluation criteria.

DECISION

Cortland Memorial Hospital protests the award of a contract to Cayuga Medical

Center under request for proposals (RFP) No. 670-05-00, issued by the Department of

Veterans Affairs (VA) for a community-based outpatient clinic (CBOC) to serve VA

beneficiaries. Cortland essentially contends that the agency?s award decision was

based on an unreasonable evaluation of proposals.

We sustain the protest.

and a footnote: Because we recommend that the agency reevaluate proposals, we need not address the other issues raised by Cortland.

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To show [say] that a government contract was awarded, where the Government recognized that the proposal had a deficiency, and the deficiency was recognized by the Government at the time the Government made the award.

Honeybus:

I can see why you had trouble finding anything. That's a very specific set of requirements:

1. contract was awarded

2. government knew proposal had a deficiency

3. government awarded contract despite that knowledge

The problem is number 2. Usually, the SSA and contracting officer did not know of the deficiency at the time of award. Someone on the tech panel may have known of a problem with the proposal, but did not know it should be called a "deficiency" or that the deficiency made the proposal unacceptable.

You can find many decisions in which agencies awarded contracts on the basis of proposals that were unacceptable at the time of award, and thus lost a protest.

Nevertheless, I will look around when I have time. There might be something.

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Honeybus:

I can see why you had trouble finding anything. That's a very specific set of requirements:

1. contract was awarded

2. government knew proposal had a deficiency

3. government awarded contract despite that knowledge

The problem is number 2. Usually, the SSA and contracting officer did not know of the deficiency at the time of award. Someone on the tech panel may have known of a problem with the proposal, but did not know it should be called a "deficiency" or that the deficiency made the proposal unacceptable

You can find many decisions in which agencies awarded contracts on the basis of proposals that were unacceptable at the time of award, and thus lost a protest.

Nevertheless, I will look around when I have time. There might be something.

Thanks, Mr Edwards.

but please keep my self-definition for 'deficiency' in mind: a 'deficiency' does not make a proposal 'unacceptable', it just makes the actual creation of a contract [meta]physically impossible. That is, a 'deficiency' is a condition which makes a contract creation impossible (missing an element of contract).

The FAR part 15 description (definition?!?!) for a 'deficiency' DOES cover my condition within its first item, but DOES NOT cover my definition is its second item

15.001 -- Definitions.

As used in this part ?

?Deficiency? is 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.

?Proposal modification? is a change made to a proposal before the solicitation closing date and time, or made in response to an amendment, or made to correct a mistake at any time before award.

?Proposal revision? is a change to a proposal made after the solicitation closing date, at the request of or as allowed by a contracting officer, as the result of negotiations.

?Weakness? means a flaw in the proposal that increases the risk of unsuccessful contract performance. A ?significant weakness? in the proposal is a flaw that appreciably increases the risk of unsuccessful contract performance.

Deficiency, as shown in FAR Part 15, is NOT A DEFINITION , but an EXAMPLE. it should read;

?Deficiency?, examples of which are (1) a material failure of a proposal to meet a Government requirement or and (2) a combination of significant weaknesses in a proposal that increases the risk of unsuccessful contract performance to an unacceptable level.

Of course, (1) is a true example because it shows no meeting of the minds, but (2) is NOT EVEN a true example, since it does not prevent a contract from being created / awarded.

Since these definitions are really only applicable to this FAR Part 15, and not the real world, I am not concerned. What the FAR Part 15 is defining as 'deficiency' is only applicable to this section.

I become concerned when the proposal presents a condition which the Government cannot accept. I call this a DEFICIENCY. It prevents the creation of a contract (for example, the Govt cannot perform; Offeror proposes that Govt is to do something which is not within contract law).

I find this category of contract interesting: aleatory contract

: a contract in which either party's performance is dependent on an uncertain event

Barry sends

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