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Receiving two bids on LPTA with same price

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12 hours ago, joel hoffman said:

Any non-price consideration that gives one proposer an advantage over another - a better chance for award- unless stated in the solicitation - in an LPTA  - is unfair. The stated non-price criteria is “technically acceptable proposal by a responsible Offeror/proposer”.

In my opinion, the tiebreaker among technically acceptable (thus EQUAL) offers from responsible proposers with equal prices should be by chance -  some type of drawing. 

The above assumes that prices are fair and reasonable and within the budget. 

An exception could be made by conducting discussions,  advising the equal lowest priced proposers that there is a tie in the price competition and allowing them to revise their price proposal. This would be most appropriate where the proposals appear to be high, and/or above the budget.

Then, if there is still a tie,  select the winner by chance. 

Edit: I could be convinced to do the price revision opportunity among tied lowest prices before resorting to chance,  if that is considered fair. Just watched Final Jeopardy on TV.  Assuming that the government reserved the right to conduct discussions. 

Further edit: could that be considered some form of the dreaded and disfavored reverse auction if the tied prices are fair,  reasonable and affordable? 

An equal chance among equal, otherwise acceptable proposals is the most fair tiebreaker. 

You're overthinking what I said. I'm saying that if there is a tie between technically acceptable offers with the same lowest price, then I would choose the one that submitted their offer first. That is all. I'm not altering the results of the technical determination and making it unfair by doing that.

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1 minute ago, coolarmydude said:

I'm saying that if there is a tie between technically acceptable offers with the same lowest price, then I would choose the one that submitted their offer first.

So, if the time for submission of offers or quotes is 4:30PM, if 3 offers or quotes are submitted at 2:00 PM, 2:01 PM and 2:02 PM, and if there are 3 equal evaluated prices, then the 2:00 PM submission wins?

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12 minutes ago, napolik said:

So, if the time for submission of offers or quotes is 4:30PM, if 3 offers or quotes are submitted at 2:00 PM, 2:01 PM and 2:02 PM, and if there are 3 equal evaluated prices, then the 2:00 PM submission wins?

Yes, I would select that offer.

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On 3/13/2019 at 1:18 PM, coolarmydude said:

I would select the offer that was received before the other. That way, the decision is still purely based on the Offerors' efforts.

This is what coolarmydude proposed...

an unstated comparative merit factor in an LPTA where extra value is inferred for earlier proposal submission . 

There is no requirement or even a stated preference for early submission, dubious value associated with early submission; there may be possibility of mistakes; the proposal may be poorer or needlessly high not taking all the time needed to refine the proposal or to obtain best pricing ...

it is a valueless discriminator in a process where the only discriminator between acceptable proposals is - by definition - price! 

You would be introducing a consideration for “additional value” for early submission of otherwise equal proposals. Why is it so hard to understand that you are bastardizing the concept of LPTA? And what extra value is associated with a submission that came in before another one?

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1 minute ago, joel hoffman said:

This is what coolarmydude proposed...

an unstated comparative merit factor in an LPTA where extra value is inferred for earlier proposal submission . 

There is no requirement for early submission, dubious value associated with early submission, possibility of mistakes or even lack of poorer proposal by not taking all the time needed to refine the proposal...

 

It's a tiebreaker decision, not an extra value determination. There is nothing anywhere that says this is wrong. And there is no such thing as an "early submission." It's a timely submission.

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All otherwise “tied”submissions should have an equal chance for award. 

...unless the solicitation included language that social engineering (“public policy”) would be considered when selecting from equally priced, acceptable proposals. SB, SDB, Hubzone, etc.

Sorry that you can’t understand that.

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1 hour ago, coolarmydude said:

It's a tiebreaker decision, not an extra value determination. There is nothing anywhere that says this is wrong. And there is no such thing as an "early submission." It's a timely submission.

Ok, then - you are in effect saying that an earlier or “timelier” submission is the best value and deserves to be awarded the contract - but didn’t state or suggest that to industry in the solicitation. 

Still improper.

Still sorry that you can’t grasp the distinction between providing equal chances for equally priced, acceptable proposals and giving ADDITIONAL CONSIDERATION  (“tiebreaker”)  for one supposedly being superior than another, introducing an arbitrary,  unstated, non-price factor.

I am familiar with “tie breakers” in sports, such as volleyball tournaments, to determine relative rankings. They are used to determine some RELATIVE order of merit in ranking the positions of teams with equal win-loss percentages in pool play for playoff purposes. They are always stated in the tournament rules.

Then - if all else fails as a discriminator - they flip a coin or draw straws. It’s called... CHANCE!!!

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1 hour ago, coolarmydude said:

It's a tiebreaker decision, not an extra value determination. There is nothing anywhere that says this is wrong. 

Coolarmydude, have you ever read any GAO Protests  based upon the agency using unstated evaluation criteria to discriminate between proposals?

Try a Google Search , such as “ GAO Protest unstated evaluation criteria”. Then consider whether a “more timely proposal submission”amounts to using unstated evaluation criteria in the award decision.  

Edit: See where it has been used during proposal evaluation or during the selecting official’s award decision. 

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3 hours ago, joel hoffman said:

Then consider whether a “more timely proposal submission”amounts to using unstated evaluation criteria in the award decision.  

Even if the LPTA solicitation included a statement that the earliest submitted proposal would receive the award in the event that more than one proposal/ quote contained the same evaluated price, I suspect that a protest against this criterion would be successful. In my view, to base a source selection upon the timeliness of proposal/ quote submission would be deemed to be unreasonable since the timing of proposal/ quote submission has nothing to do with the integrity of the selection decision or with legislation addressing the resolution of ties (i.e. socioeconomic factors or drawing by lots). 

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2 hours ago, napolik said:

Even if the LPTA solicitation included a statement that the earliest submitted proposal would receive the award in the event that more than one proposal/ quote contained the same evaluated price, I suspect that a protest against this criterion would be successful. In my view, to base a source selection upon the timeliness of proposal/ quote submission would be deemed to be unreasonable since the timing of proposal/ quote submission has nothing to do with the integrity of the selection decision or with legislation addressing the resolution of ties (i.e. socioeconomic factors or drawing by lots). 

Yes, I agree. It’s an unreasonable criterion, is unrelated to minimum acceptable quality or to a better price and provides no additional value. 

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On ‎3‎/‎14‎/‎2019 at 2:29 PM, Don Mansfield said:

Assuming that whoever you award to will meet the responsibility standard at FAR 9.104-1(c), what's the point of making past performance "part of the TA"?

 

You can set a higher standard for past performance than the simple responsibility standard.  For example, for a particular acquisition, you can set that all Past Performance must be at a level higher than "Satisfactory" in order to be considered technically acceptable.  The TA is whatever the government sets it to be.  As long as offerors meet that standard (no matter by how much), price then becomes the only discriminating factor.

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On ‎3‎/‎14‎/‎2019 at 11:52 AM, napolik said:

If you do this under LPTA and if you determine a small business has unacceptable past performance, you must go to the SBA for a CoC. See FitNet Purchasing Alliance; B-410263; Nov 26, 2014.

Agreed.

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On ‎3‎/‎14‎/‎2019 at 6:09 PM, Don Mansfield said:

Trivia contest, arm wrestling, staring contest, to name a few.

I prefer seeing who can hold their bare forearm over a candle the longest.  It weeds out the more stable people and gets you some real free-thinkers.

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On 3/8/2019 at 3:04 PM, G Smith said:

What is the procedure to determine which vendor to use for the procurement since both submitted the same price.

GAO just issued a thought provoking decision on this matter:

Quote

DIGEST

In a lowest-priced, technically acceptable acquisition using commercial item and simplified acquisition procedures, where two vendors submitted technically acceptable quotations at the same price, and where the solicitation contained no tie-breaking procedures, the agency reasonably considered the quality of the quoted items to determine the award priority among equally low-priced vendors.

https://www.gao.gov/products/B-417248?utm_campaign=usgao_email&utm_content=gcdecisions&utm_medium=email&utm_source=govdelivery#mt=e-report

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On 3/15/2019 at 8:54 AM, joel hoffman said:

Ok, then - you are in effect saying that an earlier or “timelier” submission is the best value and deserves to be awarded the contract - but didn’t state or suggest that to industry in the solicitation. 

Still improper.

Yep.  Protest grounds would be pretty straightforward:  "If we had known that earliest submission was going to be a criteria, we would have submitted 2 days early." Otherwise eligible for award, prejudiced by the actual award criteria; it's all there.

Quote

 As relevant here, when awarding contracts using simplified acquisition procedures, contracting officers are instructed to use innovative approaches to the maximum extent practicable.  FAR § 13.003(h)(4)....in circumstances, like here, where a solicitation does not contain tie-breaking procedures, our Office has rejected challenges to an agency’s chosen method of resolving a tie where the agency’s actions were reasonable.  

Very interesting decision napolik.  GAO allowed sound, logical  business judgement using facially objective criteria to break the tie. Who'da thunk it?!

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On 4/24/2019 at 3:07 PM, napolik said:

There were, of course, distinctions between the cited recent GAO decision and the subject of this thread.  “This matter” is not the same situation.

“The RFQ neither identified the basis upon which award would be made, nor provided any evaluation factors.”

Commercial item acquisition...

The protestor provided prices for different model year vehicle lease/rental. It’s price for 2019 vehicles was higher than the awardee’s price for the same model year....

The protestor offered to rent/lease presumably,  used, 2017 vehicles  for the same price as the awardee’s  2019. vehicles... 

The newer vehicles appear to clearly represent a better value than the two year old. vehicles - as is evidenced by the higher rates offered by the protestor for the newer vehicles. The protestor obviously thought or knew that the newer vehicles are worth charging and paying more to lease/rent...

It wasn’t an LPTA acquisition, regardless of what the KO said that they intended to base the selection on. The RFQ did not commit to an LPTA selection process...

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It was, in reality, a variant of best value with price as the most important factor, but where better quality is the tiebreaker. Government wasn’t willing to pay more for better quality but is allowed to obtain better value for the lowest price that meets or exceeds the customer’s minimum needs. Very similar to every day shopping experiences. 

You could call it an LPTA with quality tiebreaker, I suppose. That would more clearly emphasize low prices - to have your cake and eat it, too.😃

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50 minutes ago, joel hoffman said:

It wasn’t an LPTA acquisition, regardless of what the KO said that they intended to base the selection on. The RFQ did not commit to an LPTA selection process...

Quote

We also note that other than expressing its general dissatisfaction with the agency’s actions, AVIS Jordan does not identify the method or procedure it thinks the agency should have used to determine which of the lowest‑priced, technically acceptable vendors should have received award.  Consequently, we find no basis to conclude that the agency’s chosen tie-breaking method was unreasonable.

 

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That was AVIS Jordan’s viewpoint. If it was an LPTA, why did the protestor offer multiple prices and vehicle ages? 

The government ended up taking  a “Clark Howard Approach” (CHA). Clark is an admitted cheapskate, who won’t pass up a good deal. 

“Savvy Buyer Approach” (SBA)?

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15 minutes ago, joel hoffman said:

That was AVIS Jordan’s viewpoint.

Quote

Notably, AVIS Jordan has not identified any procurement law or regulation, or any provision of the RFQ, that the agency violated when considering model year to resolve the tie between two lowest-priced, technically acceptable vendors.  Rather, in support of its argument, the protester simply points to the absence of express authorization in the RFQ of the agency’s consideration of model year to give priority to Masafat’s quotation.  In circumstances, like here, where a solicitation does not contain tie-breaking procedures, our Office has rejected challenges to an agency’s chosen method of resolving a tie where the agency’s actions were reasonable.  Vetcorp, Inc., B-402519, May 14, 2010, 2010 CPD ¶ 114 at 2 (finding reasonable the agency’s use of FAR part 14 procedures for determining the award priority among equally low-priced proposals in a commercial items procurement under FAR subpart 12.6); seee.g.Raytheon Company, B-410719.10, B-410719.11, Nov. 15, 2016, 2019 CPD ¶ 119 at 11, 14-15 (finding reasonable an agency’s decision to amend the solicitation and seek revised proposals, rather than canceling the solicitation, to resolve a tie between low-price offerors).  Based upon our review of the record in this case, we find reasonable, for the reasons below, the agency’s method of resolving the tie between AVIS Jordan’s and Masafat’s lowest‑priced, technically acceptable quotations.

Quote

seee.g.Raytheon Company, B-410719.10, B-410719.11, Nov. 15, 2016,

The solicitation, conducted in accordance with Federal Acquisition Regulation (FAR) part 15, anticipated award to the responsible offeror submitting a technically acceptable proposal and submitting the lowest price, as determined by the bestvalue assessment. 2013 RFP § M ¶ 1.1. The 2013 RFP provided for evaluation of proposals under three factors: technical, small business participation, and cost/price. 2013 RFP § M ¶ 2.1. The technical factor comprised three subfactors: system design and performance, system producibility and sustainability, and exportability. 6 Id. Proposals would be evaluated under each technical subfactor for compliance and risk on an acceptable/unacceptable basis. Id. A proposal receiving a rating of unacceptable would be considered unawardable. Id.

 

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No basis of award was stated. The KO “anticipated” doing it as LPTA in its declaration but the RFQ, as written, didn’t limit it to that specific method. 

It was a CHA/SBA...

Edit: oops, I may have mixed up two GAO decisions that I read yesterday. Hold the presses!   I’ll go back and reread as soon as I get the time to do it. Sorry. Over and out 

New edit: Nope. It was the Decision that I was referring to. The Raytheon reference confused me for a moment.

That involved the government’s decision to amend an LPTA solicitation to seek revised proposals to break a tie rather than cancel and reissue a new solicitation. 

I’ll stand by my previous comments. 

 

Edited by joel hoffman

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3 hours ago, joel hoffman said:

No basis of award was stated. The KO “anticipated” doing it as LPTA in its declaration but the RFQ, as written, didn’t limit it to that specific method. 

Well, the bases for award are LPTA, tradeoff or HTRFRP. Does GAO say what is the basis?

Quote

Based upon our review of the record in this case, we find reasonable, for the reasons below, the agency’s method of resolving the tie between AVIS Jordan’s and Masafat’s lowest‑priced, technically acceptable quotations.

Quote

DIGEST

In a lowest-priced, technically acceptable acquisition using commercial item and simplified acquisition procedures, where two vendors submitted technically acceptable quotations at the same price, and where the solicitation contained no tie-breaking procedures, the agency reasonably considered the quality of the quoted items to determine the award priority among equally low-priced vendors.

 

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5 hours ago, napolik said:

Well, the bases for award are LPTA, tradeoff or HTRFRP. Does GAO say what is the basis?

 

Those are specifically Part 15 procedures but they aren’t the only possible bases of award for Part 15.  

“15.100   Scope of subpart.

This subpart describes some of the acquisition processes and techniques that may be used to design competitive acquisition strategies suitable for the specific circumstances of the acquisition.”

In fact Part 15 only specifically mentions LPTA and Tradeoffs. 

“15.101   Best value continuum.

An agency can obtain best value in negotiated acquisitions by using any one or a combination of source selection approaches. In different types of acquisitions, the relative importance of cost or price may vary. For example, in acquisitions where the requirement is clearly definable and the risk of unsuccessful contract performance is minimal, cost or price may play a dominant role in source selection. The less definitive the requirement, the more development work required, or the greater the performance risk, the more technical or past performance considerations may play a dominant role in source selection. “

A Part 12 competitive commercial acquisition doesn’t even have to use Part 15 procedures. 

“12.203   Procedures for solicitation, evaluation, and award.

Contracting officers shall use the policies unique to the acquisition of commercial items prescribed in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in part 13, Simplified Acquisition Procedures; part 14, Sealed Bidding; or part 15, Contracting by Negotiation, as appropriate for the particular acquisition. The contracting officer may use the streamlined procedure for soliciting offers for commercial items prescribed in 12.603.”

7 hours ago, joel hoffman said:

It was, in reality, a variant of [tradeoff*] best value with price as the most important factor, but where better quality is the tiebreaker. Government wasn’t willing to pay more for better quality but is allowed to obtain better value for the lowest price that meets or exceeds the customer’s minimum needs. Very similar to every day shopping experiences. 

You could call it a [best value*] LPTA with quality tiebreaker, I suppose. That would more clearly emphasize low prices - to have your cake and eat it, too

*I added the bracketed words for more clarity.

“13.106-2   Evaluation of quotations or offers.

...(b) Evaluation procedures. (1) The contracting officer has broad discretion in fashioning suitable evaluation procedures. The procedures prescribed in parts 14 and 15 are not mandatory. At the contracting officer's discretion, one or more, but not necessarily all, of the evaluation procedures in part 14 or 15 may be used.”

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I said early this morning 

Quote

There were, of course, distinctions between the cited recent GAO decision and the [original*] subject of this thread.  “This matter” is not the same situation.

* [bracketed word added here for more  clarity]

The cited  AVIS Jordan GAO Decision (B-417248: Apr 23, 2019) concerns a commercial acquisition for issuance of a  purchase order under a request for quotations for rental cars.

The original subject of this thread ("this matter") involves a rather cryptic description of some type of an LPTA acquisition  under the topic category  "Schedules, GWACS, MACs, IDIQs"  , The original poster has offered no further explanation and long ago checked out of participating in the discussion.. 

That’s not necessarily a rub. Probably was satisfied with an answer or two or three, long ago. 

 

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