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Interpretation of Solicitation Language


LindaK

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Looking for opinions here.

As a result of a solicitation containing the following language, does the Government have to make a single award?

"Due to the interrelationship of supplies and/or services to be provided hereunder, the Government reserves the right to make a single award to the offeror whose offer is considered in the best interest of the Government, price and other factors considered. Therefore, offerors proposing less than the entire effort specified herein may be determined to be unacceptable. "

Thanks!

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Looking for opinions here.

As a result of a solicitation containing the following language, does the Government have to make a single award?

"Due to the interrelationship of supplies and/or services to be provided hereunder, the Government reserves the right to make a single award to the offeror whose offer is considered in the best interest of the Government, price and other factors considered. Therefore, offerors proposing less than the entire effort specified herein may be determined to be unacceptable. "

Thanks!

No. The Gov't reserves the right to make an award. It is not obligated to make an award.

This is a peculiar provision. This reminds me of some of the small business "cascading" provisions that were in vogue a few years back. In this case, it appears the Gov't will award multiple contracts only if it does not receive an offer covering all items.

Is this being conducted under FAR 8, 12, 13, 15 or 16? What are the evaluation factors other than price?

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In this case, it appears the Gov't will award multiple contracts only if it does not receive an offer covering all items.

I agree with your answer ("No"), but I'm not sure I agree with the quoted sentence. Of course, who can tell what the Gov't intends without seeing what else they say about their intentions in the RFP. It sounds to me more like they intend to make a single award, pursuant to either FAR 16.504( c)(1)(ii)(D)(1)(i) or FAR 16.504( c)(2)(i)(A).

I wonder if the RFP included either FAR 52.216-27 or -28, or if the Gov't's intentions were otherwise discussed..

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Thanks for the opinions. Keep them coming.

The procurement is negotiated under FAR Part 15 using LPTA as the evaluation scheme.

Contracting is an art, and every contracting officer is an artist. In your case, I don't know why the contracting officer used those brush strokes to create that provision. My guess is that he or she prefers to award a single contract.

BTW, here is the standard FAR Part 15 provision:

Quote

52.215-1 -- Instructions to Offerors -- Competitive Acquisition

(f) Contract award.

(6) The Government reserves the right to make multiple awards if, after considering the additional administrative costs, it is in the Government?s best interest to do so.

Unquote

What are the factors used to determine acceptability?

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A technically acceptable proposal is defined as one that complies with the instructions contained in Section L and doesn't take exception to any of the terms and conditions of the solictation.

The language used comes from "sample contract language" provided as part of a clause book. I personally don't think it's clear as to what the Government intends to do. Was just attempting to get opinions from others. Around here it's viewed as requiring the Government to make a single award.

Thanks again to everyone who offered up an opinion!

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A technically acceptable proposal is defined as one that complies with the instructions contained in Section L and doesn't take exception to any of the terms and conditions of the solictation.

That's what I thought you had in mind when I said the word unacceptable was the bad part of the provision.

Therefore, offerors proposing less than the entire effort specified herein may be determined to be unacceptable.

So if an offeror proposes less than the full effort, are they acceptable or unacceptable and what's the rational?

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Guest Vern Edwards
Looking for opinions here.

As a result of a solicitation containing the following language, does the Government have to make a single award?

"Due to the interrelationship of supplies and/or services to be provided hereunder, the Government reserves the right to make a single award to the offeror whose offer is considered in the best interest of the Government, price and other factors considered. Therefore, offerors proposing less than the entire effort specified herein may be determined to be unacceptable. "

Thanks!

I presume that the solicitation contained several line items. That being the case, the first sentence was not necessary, since the government always has the right to make a single award, unless it commits to making multiple awards. The second sentence is problematical. It effectively constitutes an all-or-none proposal requirement. The government may impose such a requirement only if it has a rational basis for doing so. See The Caption Center, Comp. Gen. Dec. B-220659, 86-1 CPD ? 174:

The Competition in Contracting Act of 1984 (CICA) generally requires that solicitations include specifications which permit full and open competition and contain restrictive provisions and conditions only to the extent necessary to satisfy the needs of the agency. See 41 U.S.C.A. ? 253a(a)(2) (West Supp.1985). We recognize that procurements on a total package basis can restrict competition. Accordingly, we have objected to such procurements where a total package approach did not appear to be necessary to satisfy the agency's minimum needs. Thus, for instance, we have objected to a total package approach (1) undertaken for reasons of mere administrative convenience, MASSTOR Systems Corp., B-211240, Dec. 27, 1983, 84-1 C.P.D. ? 23 (justified on other grounds); Hvide Shipping, Inc., B-194218, Aug. 30, 1979, 79-2 C.P.D. ? 166 (justified on other grounds), (2) where the agency's need for subsystem compatibility—the agency's justification for a total package approach—did not extend to the bulk of the line items being procured, Systems, Terminals & Communications Corp., B-218170, May 21, 1985, 85-1 C.P.D. ? 578, or (3) where the agency provided no justification for such approach, Intermen Corp., B-212964, July 31, 1984, 84-2 C.P.D. ? 133; cf. AUL Instruments, Inc., B-216543, Sept. 24, 1985, 64 Comp.Gen. , 85-2 C.P.D. ? 324. In addition, we note that we have also objected to commingling sole-source items with competitive items where, although award was to be made on an item-by-item basis, discounts for the award of multiple items to a single offeror were permitted. Interscience Systems, Inc.; Cencom Systems, Inc., 59 Comp.Gen. 438, 80-1 C.P.D. ? 332, modified, 59 Comp.Gen. 658 (1980), 80-2 C.P.D. ? 106.

That is why FAR 52.215-1, Instructions to Offerors--Competitive Acquisition (JAN 2004), paragraph (f)(6), says that the government reserves the right to make multiple awards.

Does the CO have to make a single award? Hard to say. I wouldn't bet my house on any answer, despite the fact that the solicitation only reserves a right to make a single award. I think much depends on the effect of the second sentence. If it is interpreted as an "all-or-none" requirement, then award of any item to a firm that did not bid on all items might face a challenge. I would not wager how the GAO or Court of Federal Claims might decide the issue. On the other hand, if the CO rejects any offer because it did not cover all items, he might face an "unduly restrictive" protest. Of course, such a protest might be considered untimely if the GAO or Court decides that the solicitation was unambiguous in that regard. I offer no advice.

The CO who issued the solicitation was foolish to insert the two sentences. Everyone involved in permitting the issuance of the solicitation with that language bears some responsibility.

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