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PD216ohio

How do incorporated FAR provisions affect Part 13 - potential protest

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Hi Everyone, I am a new member here and am from the vendor side of things.  This is my first post so I hope I am posting in the right area.

I have recently bid a project that is identified as an RFQ on the 1449 although it is also referred to as a RFP in the SOW.

After the due date, an email was sent to all offerors asking for them to submit their relevant experience with the explanation that a form, on which to do so, was accidentally omitted from the solicitation docs. I did protest, pre-award at the agency level, that such an allowance should not be made since the solicitation clearly stated the the evaluation would be based on price and experience.  A bidder should know what that means and should have submitted an experience profile of some sort.  The agency disagreed.

Now, here we are post-award.  We were not the successful bidder.  I requested a debriefing that asked a number of questions, including when each bidder submitted their experience profile and what the base bids were (this solicitation had base items and option items).  The response was that this was a solicitation under FAR part 13 and therefor the agency was not required to answer my questions to that extent.  I was simply informed that the awardee price was X and my price was Y and that both of our experience evaluations were the same. The solicitation did incorporate the following as listed:

FAR 52.212-1, Instructions to Offerors – Commercial, does apply to this acquisition with no addenda to the provision. 

FAR 52.212-2, Evaluation – Commercial Items, does apply to this acquisition. The specific evaluation criteria to be included are detailed in Section M of this combined synopsis/solicitation. 

FAR 52.212-3, Offeror Representations and Certifications – Commercial Items, does apply to this acquisition with no addenda to the provision, and is located in Section K of this combined synopsis/solicitation. 

FAR 52.212-4, Contract Terms and Conditions – Commercial Items, does apply to this acquisition with no addenda to the provision.

The incorporation of the above seems to modify some aspects of this being a FAR 13 solicitation.  52.212-1 raises the level of debrief criteria AND makes any modification after the due date unacceptable.

I am trying to determine to what extent the incorporation of the above FAR 52s modifies the rules of a simplified acquisition.  It seems that it does so quite tremendously.  I feel that in Turner Consulting Group, Inc., B-400421, Oct. 29, 2008, it is determined that the inclusion of FAR 52.212-1, without modification, changed the rules of a simplified acquisition so that it must conform with the incorporated rules.

I suspect that most or all OTHER bidders may not have included their experience in a timely manner.  I recognized the need to include it and did so in time. I am still awaiting the agency to fulfill my debriefing request which they might be convinced to now do (after I cited case law in support of doing so).  If I cannot get satisfactory answers or if those answers support my belief that other bidders were late with submitting their experience, I will have to file a protest.  But of course who wants to do that unnecessarily?

The other aspect of this matter is the evaluation of the submissions.  They are price and experience with experience being nearly equal to price.  Is there a formula that might make this more clear?  Let's assume that none of the others submitted experience in time but that does not mean their bid is considered non-responsive or late (they just don't have the benefit of experience added into their score for award), how much does experience bear in the overall score aka how much higher can I have bid if I am the only one with experience?

Thank you all so much for any input.  I've really enjoyed reading through this forum and am sure I'll get some very informed responses.

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In a simplified acquisition, FAR part 13 only requires the agency to furnish a supplier “a brief explanation of the basis for the contract award decision,” not an actual “debriefing.”  The provision at FAR 52.212-1 does not promise a debriefing.  If you have a basis for a post-award protest, it is due 10 days after notice of award (not after the alleged debriefing which really was not a required debriefing).

It appears that you already objected to the contracting officer's e-mail (after quotes were received) to all responders to submit their experience information on a particular form.  You filed an agency protest, and lost that protest.  You did not follow-up with a GAO protest.  This matter is probably untimely for protest now (being more than ten days since you learned).  Even if not untimely, you would have to show that you were prejudiced by the contracting officer's action, but it seems as though everyone was treated equally.

So, what is left?  You and the winner rated equally on experience and its price was lower.

In Turner, B-400421, the RFQ did not include the provision at FAR 52.212-1, so I don't think it makes the point you think it does.  If the winner submitted its experience form by the new time set by the e-mail to all responders, it wasn't late (in essence, the contracting officer's e-mail was a solicitation amendment).  Besides, you don't know whether the winner submitted up front (like you did) or later (as all respondents were allowed to).  Even if the latter is true, I don't think a protest attempt on your part to disqualify the winner's experience submission will be successful (all responders were treated equally, e-mail was effectively an amendment, and you were not prejudiced).

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I'm with ji. There are long-standing precedents allowing retroactive amendments and extensions; agencies are granted a lot of discretion to amend their solicitation.

Even if your beliefs were true, GAO would likely permit retroactive amendment and extension to accommodate multiple otherwise-late quoters/offerors to correct their error (omission) and/or increase competition.

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Hi Ji20874,

In Turner it states "FAR provisions in Parts 14 and 15, governing the late delivery of bids and proposals, generally do not apply to the late delivery of a quotation. However, where as here the RFQ contains a late submission provision that quotations must be received by a stated deadline to be considered, quotations cannot be considered if received after the deadline. See Data Integrators, Inc., B-310928, Jan. 31, 2008, 2008 CPD para. 27 at 2."

In my instance, such provisions were made by the incorporation of the listed 52s in my original post... at least that is my argument.  It seems supported by Turner wherein the inclusion of such provision changes the rules of the RFQ as it did in Turner where the protestor was considered late in their quotation.  As you stated, late submissions are typically allowed but Turner points out that the rules are modified by provision in that case.

This is why I have the question if the incorporation of 52.212-1, without modification, qualifies as a provision that changes the rules of an RFQ as it did in Turner, for instance.

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As I drill down through the citations in Turner, etc... I get to M.Braun, Inc., B‑298935 wherein it states:

Quote

 Generally, late quotations may be considered up to the time of issuance of
   the order, because an RFQ, unlike a request for proposals (or an
   invitation for bids), does not seek offers that can be accepted by the
   government to form a contract. Rather, the government's purchase order
   represents an offer that the vendor may accept through performance or by a
   formal acceptance document. DataVault Corp., B-248664, Sept. 10, 1992,
   92-2 CPD para. 166 at 2. Moreover, we have found that language in an RFQ
   requesting quotations by a certain date does not establish a firm closing
   date for receipt of quotations, absent a late submission provision
   expressly providing that quotations must be received by that date to be
   considered. Instruments & Controls Serv. Co., B-222122, June 30, 1986,
   86-2 CPD para. 16 at 3. Here, however, the RFQ incorporated the standard
   "Instruction to Offerors -- Commercial Items" FAR clause, which expressly
   limits the agency's consideration of a late submission. See FAR
   sect. 52.212-1(f).

Again, I see a trend of support that incorporation of 52.212-1 becomes a modification to the general rules of an RFQ.... Unless I am misunderstanding what I am seeing.  I am not a lawyer.

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PD, I think you are missing the point that ji made and that is the other offeror's quote would not have been late in this situation because the government changed the due date.

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14 hours ago, Retreadfed said:

PD, I think you are missing the point that ji made and that is the other offeror's quote would not have been late in this situation because the government changed the due date.

The due date was not changed.  All bidders (but only those bidders) who submitted by the due  date, were allowed to send the missing information.  While yes, this would normally be allowable under an RFQ/Simplified Acquisition, it appears that there are many examples of where that rule was changed by language inserted (often inadvertently) by the CO.  I say inadvertently because in some of those cases, the COs thought they were correct in allowing late submissions while the GAO ruled otherwise.

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Edit to add: M.Braun, Inc., B‑298935.2, May 21, 2007 seems to rule that the incorporation of 52.212-1 changes the rules of an RFQ and any late submissions are to be considered late.

A search also finds, among others, a more recent decision that seems very clear that incorporating 52.212-1 does change the rules for late submissions, etc, in Peers Health, B-413557.3

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The Government considered your experience and the winner's experience as the same.  You haven't disagreed with that finding.

Your price was higher than the winner's price.

Sounds to me like the Government selected the right contractor.

I see no fatal error in the Government's conduct of the acquisition, based only on your explanation of the facts.  

Three of us have explained our opinions based on our own past experiences -- I hope this has been helpful to you.

Have you filed your protest yet?  Please share the outcome when you get it -- this is how we all learn for the future.  

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15 hours ago, ji20874 said:

The Government considered your experience and the winner's experience as the same.  You haven't disagreed with that finding.

Your price was higher than the winner's price.

Sounds to me like the Government selected the right contractor.

I see no fatal error in the Government's conduct of the acquisition, based only on your explanation of the facts.  

Three of us have explained our opinions based on our own past experiences -- I hope this has been helpful to you.

Have you filed your protest yet?  Please share the outcome when you get it -- this is how we all learn for the future.  

Maybe I didn't clearly explain the primary point I was trying to make.  Other bidders only submitted their experience after the due date.  This was allowed by the CO who thought it wasn't clear enough in the bid but decided this a couple days after the bids were due.  My point is that the incorporation of 52.212-1 into the RFQ has changed the rules and now anything submitted after the due date cannot be accepted.  As I have been doing more and more research, this seems to be how the GAO sees it too.

This is my position... whether I am right or wrong remains to be seen of course. lol

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PD - Your thinking regarding 52.212-1 and "late"  is sound but as noted by others your research now needs to move to other facts.  Such as-

Can the agency amend the RFQ casualy as they did which negates the view of late?

Do you have standing to protest now to GAO based on the timeliness standard for such protests?

These are primary matters now if you are still contemplating a protest to GAO.

And as an aside should you decide to protest I hope you use terms like RFQ, quote, quotes, etc. Exacting terms related to your specific situation will matter.

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Experience is a traditional responsibility factor,  right? Why couldn't the government ask for specific responsibility related information after the due date?

See Chags Heath Info. Tech., LLC, B-413104.30 et al., Apr. 11, 2019, where GAO explained that “responsibility and technical acceptability are distinct matters” and that “[r]esponsibility may be satisfied at any time prior to award, as opposed to technical acceptability, which must be satisfied based on a common proposal deadline.”

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On 5/26/2019 at 10:38 AM, C Culham said:

PD - Your thinking regarding 52.212-1 and "late"  is sound but as noted by others your research now needs to move to other facts.  Such as-

Can the agency amend the RFQ casualy as they did which negates the view of late?

Do you have standing to protest now to GAO based on the timeliness standard for such protests?

These are primary matters now if you are still contemplating a protest to GAO.

And as an aside should you decide to protest I hope you use terms like RFQ, quote, quotes, etc. Exacting terms related to your specific situation will matter.

I still have a couple days in which to file with the GAO.  Getting a useful debriefing, however, has been difficult and unfulfilled.  Thank you for pointing that out because I do understand how important that is.

As for them amending the RFQ, it was done after the due date and after all relevant offers had been received.  I don't know if that is a worthwhile distinction between late and allowable but I'll put my money on late, with fingers crossed.

Excellent point on keeping the terminology correct.  I will pay close attention to that.

Thank you for the great insights and advice.

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On 5/26/2019 at 6:27 PM, Jamaal Valentine said:

Experience is a traditional responsibility factor,  right? Why couldn't the government ask for specific responsibility related information after the due date?

See Chags Heath Info. Tech., LLC, B-413104.30 et al., Apr. 11, 2019, where GAO explained that “responsibility and technical acceptability are distinct matters” and that “[r]esponsibility may be satisfied at any time prior to award, as opposed to technical acceptability, which must be satisfied based on a common proposal deadline.”

I'm not sure if I understand you completely.  I would think that responsibility would deal with one's ability to complete an awarded project or to supply the necessary documentation, etc, to complete the project.

Experience, especially if stated as a factor of award (quotes will be evaluated on price and experience), is a technical factor and I would think it should be required prior to the due date.

I do wonder if forgetting to include experience (or not realizing it should be included), in this case, would cause the entire quote to be rejected if only that portion was late... or if it would simply mean that the late portion (experience) could not be considered in the evaluation.  In this RFQ, near the top it stated that the evaluation factors are in Section M.  In Section M it simply stated: 

(a) The Government will award a contract resulting from this solicitation to the responsible offeror whose offer
conforming to the solicitation will be most advantageous to the Government, price and other factors considered. The
following factors shall be used to evaluate offers:
(i) Price
(ii) Relative Experience
Technical and past performance, when combined, are approximately equal to cost or price.

But in Section L it stated:

The offeror’s proposal shall include the following elements to be considered for award:
1. Section J – Contractor Cover Sheet.
2. SF 1449 – Filled out by the offeror for:
3. Block 17a
4. Section B – To include the price for all Contract Line Item Numbers (CLINs).

Each of the above uses the word "shall" which in legal terms means that it is required. So I suppose the argument can be made that if Section L requirements were received in time, the quote could be considered without any points for experience if experience wasn't submitted in time.  However, section L does not state that ONLY those items are required and therefore Section L could be viewed as minimum requirements.  Any modification after the due date would still be late under 52.212-1 and might still cause the entire quote to be considered late.

This does lead me to a follow up question... Let's assume for easy math that my bid was 150k and the awardee was 100k.  I have submitted my experience in a timely fashion and the other bidder did not.  Would the "approximately equal" factor for experience be enough to bring me to the award?  This is assuming their bid could be considered without the experience factor.

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Ok, here's an update!  The CO did just supply me with the requested info from my debriefing request.

The results are that only one bidder, out of nine total, was lower than me and that lower bidder is not the current awardee.  

I am 21% higher than that low bidder on base bid and 23% higher on the entire bid including all options.

As for the evals on the relevant experience, the only "grades" I see are "very relevant" and "not relevant".  Both I and the lower bidder are listed as "very relevant".  I don't know how that grading scale works from an internal perspective.

I suppose my only question now is whether there is any value in protesting the award since it seems like if I am successful, I will just be handing the award to the one lower bidder that is in compliance.  Unless there is something that might disqualify that lower bidder... but is that a worthwhile gamble?

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4 minutes ago, ji20874 said:

If you filed a protest, what would be your argument?

I can argue that three of the bids ahead of me in price should not be considered.  I am 99% confident in that argument.

However, I do not have enough info yet to figure out if the single bidder ahead of me in price is legitimate.  What if there is a reason they cannot perform or be entered into a contract with?  Is it worthwhile on that chance to file the protest and put myself in second place ... or maybe first if something works out that way?

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Well, based on what I’ve read in this thread, I don’t think it would be worthwhile for you to file a protest.  

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On 5/23/2019 at 8:30 PM, PD216ohio said:

The other aspect of this matter is the evaluation of the submissions.  They are price and experience with experience being nearly equal to price.  Is there a formula that might make this more clear?  Let's assume that none of the others submitted experience in time but that does not mean their bid is considered non-responsive or late (they just don't have the benefit of experience added into their score for award), how much does experience bear in the overall score aka how much higher can I have bid if I am the only one with experience?

One of the advantages of simplified acquisitions in FAR Part 13 is that the government need not create a formula or state evaluation factors in terms of relative importance. This means the government has greater flexibility and a lesser burden of showing the procurement was reasonable. This means you, the contractor, has a lesser chance of winning a protest. See FAR 13.106-1(a)(2).

Your theory that the government has waded into the pool of more complex contracting via inclusion of certain clauses has merit. From PepeTheFrog's memory, there have been GAO cases where the government uses too many FAR Part 15 terms, concepts, processes, clauses, provisions, etc. while maintaining that the procurement is under FAR Part 13. Sometimes, the GAO recommends that the procurement be treated under the higher standards of FAR Part 15, despite the FAR Part 13 label and intent (favoring substance over form). 

However, as ji20874 and others wisely pointed out, you don't seem to be next-in-line to win this award, even if you can convince the GAO that the government fumbled. 

PepeTheFrog would not spend five or six figures to protest this one, but a curious person might scratch off a simple protest that was filed pro se (without an attorney) at minimal expense. That is your decision. Of course, you should consult an attorney or someone knowledgeable about these issues. 

FAR 13.106-1(a)(2):

"When soliciting quotations or offers, the contracting officer shall notify potential quoters or offerors of the basis on which award will be made (price alone or price and other factors, e.g., past performance and quality). Contracting officers are encouraged to use best value. Solicitations are not required to state the relative importance assigned to each evaluation factor and subfactor, nor are they required to include subfactors."

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4 hours ago, PepeTheFrog said:

Your theory that the government has waded into the pool of more complex contracting via inclusion of certain clauses has merit. From PepeTheFrog's memory, there have been GAO cases where the government uses too many FAR Part 15 terms, concepts, processes, clauses, provisions, etc. while maintaining that the procurement is under FAR Part 13. Sometimes, the GAO recommends that the procurement be treated under the higher standards of FAR Part 15, despite the FAR Part 13 label and intent (favoring substance over form). 

Finlen Complex, Inc., B-288280, October 10, 2001

DIGEST

1. Notwithstanding statement in solicitation that simplified acquisition procedures were being used and authority at Federal Acquisition Regulation (FAR) Sec. 12.602(a) not to disclose the relative weight of evaluation factors when using simplified procedures, an agency's failure to disclose the relative weight of evaluation factors was unreasonable because basic fairness dictated disclosure of the relative weights where the agency required offerors to prepare detailed written proposals addressing unique government requirements. 2. Protester's contention that an agency's decision to assign a weight of 5 percent to a solicitation's past performance evaluation factor violates FAR Sec. 12.206 (providing that past performance should be an important element of every evaluation) is denied as the FAR provision is discretionary, not mandatory. 3. Even in a commercial acquisition using simplified procedures, where an agency requests detailed written proposals, a selection decision is improper where it lacks a rationale which sets forth a basis for the tradeoffs made, including an explanation of any perceived benefits associated with additional costs.

https://www.gao.gov/products/407353

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Hi Pepe,

I just received some final clarification on the debriefing.  It does appear that the one vendor ahead of me is in full compliance. 

I am also very confident that the 3 others ahead of me would be removed if a protest ensued.

I am sure the COs hate me by now.

If I were to file the protest, I would do so pro se.  Cost would be minimal.  I am just not sure if there is any value in doing so.  The benefit would be that I would be next in line in the event that the remaining bidder could not perform for whatever reason.... but I suspect that chance is minimal.  I don't know who that bidder is so I cannot alert them to their potential good fortune if they were to file.

I would consider your opinion strongly if you thought there were any value in filing.  I have until Thursday.  Otherwise I can let this go and be fifth in line instead.  Again, I am tossed on if there is any perceivable value in filing.  For the record, I have lost a countless number of bids.  I don't have a problem with that.  However, this situation was a clear mess up on the governments part so it took me this far into it.

Also, I feel there is a decent chance I could be awarded compensation for my filing fee and perhaps time spent in filing the protest since it is of clearly meritorious grounds.

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napolik,

Do you read the acquisition being discussed in this thread as one “where the agency required offerors to prepare detailed written proposals addressing unique government requirements”?  I don’t.

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2 minutes ago, ji20874 said:

Do you read the acquisition being discussed in this thread as one “where the agency required offerors to prepare detailed written proposals addressing unique government requirements”?  I don’t.

I was responding to the Awesome Amphibian's post:
 4 hours ago, PepeTheFrog said:

Your theory that the government has waded into the pool of more complex contracting via inclusion of certain clauses has merit. From PepeTheFrog's memory, there have been GAO cases where the government uses too many FAR Part 15 terms, concepts, processes, clauses, provisions, etc. while maintaining that the procurement is under FAR Part 13. Sometimes, the GAO recommends that the procurement be treated under the higher standards of FAR Part 15, despite the FAR Part 13 label and intent (favoring substance over form). 

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It’s hard to declare quotes or proposals deficient when the government didn’t even ask for submission of experience until after the cutoff date.  Maybe I missed it in Section L. 

To me nothing in the solicitation was coordinated. 

As for the OP’s chances in a protest, he doesn’t have standing if he would be second in line for award with no evidence that the next in line should be disqualified. 

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