Jump to content
The Wifcon Forums and Blogs
PD216ohio

How do incorporated FAR provisions affect Part 13 - potential protest

Recommended Posts

43 minutes ago, joel hoffman said:

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. 

I am an interested party and, not to be silly, there is no guarantee that the one remaining lower bidder would be able to accept or complete the project.  Any number of things could potentially happen between now and 100 days from now.

Share this post


Link to post
Share on other sites

@PD216ohio You can file the protest and see if your thinking was correct...that's worth a lot, right? You raise several points and can find out if they are with or without merit. Probably the least expensive, reliable government contract training you can find.

Also, if you truly believe the office messed up, isn't there value in accountability? 

Share this post


Link to post
Share on other sites
10 hours ago, PD216ohio said:

Experience, especially if stated as a factor of award (quotes will be evaluated on price and experience), is a technical factor ...

What is this assertion based on? Case law? The solicitation language?

GAO has routinely stated that experience is a traditional responsibility factors such as those listed in FAR 9.104-1. When used as an evaluation factor it remains a responsibility-type factor.

Do you know if the experience was a pass/fail or comparative evaluation factor?

Share this post


Link to post
Share on other sites

Jamaal, the GAO has said that the government could set a requirement for some minimum amount of experience as a technical requirement.  It has also said that the government could use it as a comparative factor. 

Regardless of all that, where did the original solicitation say to submit any experience information? And did anyone raise the issue prior to the original response deadline? It would seem that the government would HAVE TO amend the solicitation,  after receiving quotations without the necessary experience information.

The original solicitation was jacked up. 

Share this post


Link to post
Share on other sites
2 minutes ago, joel hoffman said:

Jamaal, the GAO has said that the government could set a requirement for some minimum amount of experience as a technical requirement.  It has also said that the government could use it as a comparative factor.

I understand that. Are you saying that when used as a technical requirement, experience is not a responsibility-type factor?

Share this post


Link to post
Share on other sites
1 hour ago, PD216ohio said:

I am an interested party and, not to be silly, there is no guarantee that the one remaining lower bidder would be able to accept or complete the project.  Any number of things could potentially happen between now and 100 days from now.

You’re not an interested party unless you can establish that you are next in line for award or can establish that the next in line for award is deficient. You have no evidence or inkling of whether or not the next lower priced firm meets or doesn’t meet the experience or other criteria. 

Share this post


Link to post
Share on other sites
14 minutes ago, Jamaal Valentine said:

I understand that. Are you saying that when used as a technical requirement, experience is not a responsibility-type factor?

Jamaal, what is your point or application with respect to this particular acquisition?  It appears that you are saying that the government can consider experience in the responsibility determination, separate from the technical factor, which the OP thinks experience was supposed to be evaluated .

Also - the OP said that the government provided a form to fill out after the due date but didn’t say that anyone was eliminated for lack of experience. 

Share this post


Link to post
Share on other sites
38 minutes ago, joel hoffman said:

Also - the OP said that the government provided a form to fill out after the due date but didn’t say that anyone was eliminated for lack of experience. 

The solicitation originally stated that price and exeperience were the evaluation factors in section M. Section L listed the things that a quote must contain to be evaluated, experience was not included there. 

Now, I suppose a quote could be considered without experience but it wouldn't fare well. 

The CO has stated that it intended to include an experience form but forgot to... So they remedied it by sending out the experience form after the due date (which is prohibited since they included all of 52212-1 in the solicitation). 

The entire situation is a cluster. 

I suppose I could protest and simply ask that the remedy be a resolicitation. Not sure if that's even an option but that might be my better opportunity given the facts thus far. 

Share this post


Link to post
Share on other sites
11 hours ago, joel hoffman said:

Jamaal, what is your point or application with respect to this particular acquisition?  It appears that you are saying that the government can consider experience in the responsibility determination, separate from the technical factor, which the OP thinks experience was supposed to be evaluated .

Also - the OP said that the government provided a form to fill out after the due date but didn’t say that anyone was eliminated for lack of experience. 

Joel, you didn't answer my question. Are you saying that when used as a technical requirement, experience is not a responsibility-type factor?

My points are exactly as previously written.

Under GAO case law, proposal documents relating to a contractor’s responsibility may be submitted any time prior to award, regardless of contrary statements in the solicitation. GAO confirms that agencies are required to evaluate responsibility documents received after the proposal deadline and before award or earlier down-select evaluation.

I am not sure what your point, if any, is in stating the following:

11 hours ago, joel hoffman said:

Jamaal, the GAO has said that the government could set a requirement for some minimum amount of experience as a technical requirement.  It has also said that the government could use it as a comparative factor.

Okay, you restated my previous comments regarding GAO and experience. Now, what is your point? Can you gather how experience was used in this case? Does the OP know?

I don't know...I'm just laying out the rules that may be relevant and possibilities since it's an unclear post in the beginners forum.

Share this post


Link to post
Share on other sites
9 hours ago, joel hoffman said:

Jamaal, the GAO has said that the government could set a requirement for some minimum amount of experience as a technical requirement.  It has also said that the government could use it as a comparative factor. 

Quote

Under the SBA’s COC program, authorized pursuant to the Small Business Act, 15 U.S.C. § 637(b)(7), and implementing regulations, 13 C.F.R. § 125.5, see also FAR subpart 19.6, agencies must refer a determination that a small business is not responsible to SBA if the determination would preclude the small business from receiving an award. 15 U.S.C. § 637(b)(7); 13 C.F.R. § 125.5; FAR subpart 19.6. In this regard, the Small Business Act provides that it is the SBA’s duty to certify to government procurement officers with respect to all elements of responsibility (including capability, competency, capacity, credit, integrity, perseverance, and tenacity) of any one or a group of small business concerns to receive and perform a specific government contract. 15 U.S.C. § 637(b)(7)(A). Further, SBA’s regulations specifically require a contracting officer to refer a small business concern to SBA for consideration for a COC when the contracting officer:

Refuses to consider a small business concern for award of a contract or order after evaluating the concern’s offer on a non-comparative basis (e.g., a pass/fail, go/no go, or acceptable/unacceptable) under one or more responsibility type evaluation factors (such as experience of the company or key personnel or past performance) . . . .

Cascadian American Enterprises, B-412208.3; B-412208.4, Feb 5, 2016

https://www.gao.gov/assets/680/675014.pdf

Quote

COs should be aware that FAR 15.101-2 does not state the full rule. As can be seen from the above quotation from Nomura [Nomura Enterprises, Inc., Comp. Gen. Dec. B-277768, 97-2 CPD ¶ 148], the requirement to permit an offeror to obtain a Certificate of Competency from the SBA when there is a go/no-go evaluation applies not only to past performance but to all “traditional responsibility factors.” This means that almost all evaluations of the capability of the offerors are subject to the same rule. This would include experience, the capability of key personnel, the availability of necessary equipment, and financial capability among other factors. If COs want to evaluate such factors without subjecting the procurement to the Certificate of Competency process, the factors should be made comparative evaluation factors.

See Alternative Procurement Strategies: An Obscure Aspect Of The FARThe Nash & Cibinic Report, May 2001.

Share this post


Link to post
Share on other sites

Yes, it is a responsibility criteria. Yes, I won’t argue that the government might have to refer elimination of a small business for lack of experience to the SBA. However, I have seen Decisions which upheld the right of the government to require certain minimum amount of experience where that was determined to be a reasonable requirement. 

For instance, we had a small DB business set-aside for an Air Force airfield pavement project (C130 concrete pavement parking ramp). We required the firm that actually was to perform the concrete pavement construction portion of the contract (subcontract) to have recent concrete paving experience for either airfields or street/highway projects, involving paving lanes.

The overall basis of award was LPTA and every factor was go-no go. 

The second lowest proposer was awarded the contract, although the minimum paving experience wasn’t the reason.

The lowest priced team was a clear “front” for the paving subcontractor; the JV agreement was a sham; the project superintendent was going to be “on loan” to the DB prime; the sub had final say over JV decisions; the bid bond was defective, etc. 

They submitted an agency protest but it was denied. They could have protested that we didn’t refer the matter to the SBA but didn’t. 

Share this post


Link to post
Share on other sites
12 minutes ago, joel hoffman said:

However, I have seen Decisions which upheld the right of the government to require certain minimum amount of experience where that was determined to be a reasonable requirement. 

In the decision, the small business was found to be unacceptable, and the basis for the award was LPTA? Please identify the decision.

Share this post


Link to post
Share on other sites

Will do some searching and when I have some time.

Share this post


Link to post
Share on other sites

You can check out WIFCON listings under requirements unduly restrictive of competition, many of which involve qualifications and/or specifically experience. Some are small business set-asides. Some are trade-off. It where proposal was unacceptable. Some were LPTA. 

I found these under a Google Search on my iPhone. 

https://www.gao.gov/assets/700/693532.pdf

 

Small business set-aside: https://www.gao.gov/assets/690/688697.pdf

 

   https://www.gao.gov/mobile/products/B-408685.18

The above Involves experience in a mentor-protégé arrangement. 

 

https://www.gao.gov/assets/690/681976.pdf. Involves a small business ID/IQ pool. 

 

http://www.wifcon.com/cgen/4112097.pdf. Small business

 

Wife told me to “Get off WIFCON”...

Share this post


Link to post
Share on other sites
39 minutes ago, joel hoffman said:

I found these under a Google Search on my iPhone

The last 2 URLs yield nothing. The first 2 yield copies of protests against solicitations, not against source selections.

My point is that one can use "responsibility" eval factors for source selection and avoid the requirement for a COC if one is using a tradeoff vice an LPTA.

Share this post


Link to post
Share on other sites
54 minutes ago, napolik said:

My point is that one can use "responsibility" eval factors for source selection and avoid the requirement for a COC if one is using a tradeoff vice an LPTA.

That's right; provided, the responsibility-type factors are evaluated comparatively rather than pass-fail.

But I wonder how we got here in this thread -- we're far away from the original posting.

Share this post


Link to post
Share on other sites
12 hours ago, PD216ohio said:

The CO has stated that it intended to include an experience form but forgot to... So they remedied it by sending out the experience form after the due date (which is prohibited since they included all of 52212-1 in the solicitation). 

What in 52.212-1 prohibits this?  Why do you think that 15.206 is not applicable here?

Share this post


Link to post
Share on other sites
7 hours ago, Retreadfed said:

What in 52.212-1 prohibits this?  Why do you think that 15.206 is not applicable here?

(f) prohibits late submissions.

Why do I think 15.206 does not apply?  Because the solicitation already stated that evaluations are based on price and experience.  After quotes were received, the CO made a decision to allow people to add their experience to their quote because they didn't feel that was clear somehow.  This isn't the same as saying, "oh, we think we should have asked for experience" after quotes were received and the due date had passed.

Share this post


Link to post
Share on other sites

@PD216ohio wasn't there a de facto solicitation amendment to require submission of a specific experience form? The experience form wasn't required initially, correct?

Share this post


Link to post
Share on other sites
20 hours ago, napolik said:

The last 2 URLs yield nothing. The first 2 yield copies of protests against solicitations, not against source selections.

My point is that one can use "responsibility" eval factors for source selection and avoid the requirement for a COC if one is using a tradeoff vice an LPTA.

Well, what happens if the firm doesn't meet the minimum requirement in a tradeoff, i.e., "has no recent or relevant experience" What's the difference between that and "no recent or relevant experience" in an LPTA?  

Assume,in both cases that the experience requirement is reasonable and justifiable.  

As an example, the firm that is performing the airfield paving portion of  contract for concrete aircraft parking ramp must have recent experience on concrete paving project of some magnitude and scale, involving airfield or highway paving lanes with a concrete paving train.

I think that you're alluding to situation where one firm has a higher rating than another firm but isn't considered unacceptable under an experience factor. I agree that the COC referral wouldn’t be applicable in that situation. 

However, in either an LPTA or tradeoff, the factor would likely have criteria for minimum acceptability. If the proposer/quoter doesn’t meet the minimum, the result would be unacceptable. I’m guessing that the SBA  wouldn’t override the agency where the requirement is valid and reasonable. 

Regardless, the topic has no relevance to the instant situation. The office that put together the solicitation didn't coordinate sections L and M. It didn't even ask for information concerning experience, which was necessary and supposedly important in the basis of award. Thus the extent of experience would be compared in the trade off. Treating experience only as an element of responsibility but not as an important discriminator would be inconsistent with the stated basis of award, which involved determining,  then comparing the extent and quality of experience, not simply meeting a minimum responsibility requirement. I don’t remember seeing minimum acceptability criteria mentioned here, either. 

Here, the government apparently discovered its goof up after receiving quotes. It had to correct the error.  

Funny that industry didn't notice the error/inconsistency in section L and inquire - indicates that the firms competing don't know much about the process either. Appears that this was probably a small dollar, simplified, commercial acquisition.

I wonder if those who  prepared the solicitation were simply cutting and pasting from multiple other previous examples without coordinating L and M.

 

 

Share this post


Link to post
Share on other sites
11 hours ago, joel hoffman said:

Well, what happens if the firm doesn't meet the minimum requirement in a tradeoff, i.e., "has no recent or relevant experience" What's the difference between that and "no recent or relevant experience" in an LPTA?  

So far, it appears that an unacceptable proposal of a small biz determined to be unacceptable based upon an LPTA evaluation of a responsibility related criterion (e.g. experience) must be referred to the SBA for a COC. However, it does not need to be referred if the small biz failed to provide documentation required by the solicitation:

Quote

As for the protester’s contention that the agency was required to refer Sea Box’s unacceptable proposal to the SBA, we disagree. Where an agency finds the proposal of a small business to be unacceptable under a responsibility-related factor, that is, a factor pertaining to its ability to perform, such as whether it has adequate corporate experience or production equipment and facilities, the determination is essentially one of nonresponsibility, meaning that referral to the SBA, which has the ultimate authority to determine the responsibility of small business concerns, is required. Tyonek Worldwide Servs., Inc.; DigiFlight, Inc., B-409326 et al., Mar. 11, 2014, 2014 CPD ¶ 97 at 12. Where an agency rejects a proposal as technically unacceptable on the basis of factors not related to responsibility, however, referral to the SBA is not required. Id. Likewise, where an agency rejects a proposal as technically unacceptable on the basis of a factor that is arguably responsibility related, but the finding of unacceptability is based on the offeror’s failure to submit specific documentation required by the solicitation, referral to the SBA is not required. AttainX, Inc.; FreeAlliance.com, LLC., B-413104.5, B-413104.6, Nov. 10, 2016, 2016 CPD ¶ 330 at 5.

Sea Box, Inc., B-414742, Sept 6, 2017

http://www.wifcon.com/cgen/414742.pdf

 

Share this post


Link to post
Share on other sites
12 hours ago, joel hoffman said:

Well, what happens if the firm doesn't meet the minimum requirement in a tradeoff, i.e., "has no recent or relevant experience" What's the difference between that and "no recent or relevant experience" in an LPTA?  

Also, take a look at this blog:

http://www.berenzweiglaw.com/sba-helps-on-responsibility-type-evaluations/

I suggest reading this decision referenced in the blog: Competitive Range Sols., LLC, B-413104.10, Apr. 18, 2017.

https://www.gao.gov/products/B-413104.10#mt=e-report

Quote

The solicitation advised offerors that the government would evaluate proposals in two phases.  Id. at M-1.  During phase 1, the government would evaluate the proposals based on four “Go/No-Go” requirements.[2]  Id. at M-3, M-4.  As relevant here, factor 2, management approach, subfactor 1, domain-specific capability in a health-related mission, was one of the go/no-go requirements to be evaluated during phase 1.[3]  Id. at M-4. 

__________________________________________________________________

As relevant here, the solicitation stated that under this subfactor the government would evaluate whether the offeror “demonstrates an inherent domain-specific capability in a health-related mission . . . . This capability can be demonstrated through experience examples or internal resources with substantial relevant experience.”  Id. at M-8.  The solicitation also stated that health-related missions were “broadly defined as those that contribute directly to human health and may include corporate expertise in fields such as healthcare, health-related/biomedical research and health science, clinical analytics and intelligence, health policy, health-related grant making, and regulation of health industries.”  Id.  The solicitation warned that proposals that fail to demonstrate domain-specific capability in a health-related mission would be deemed unacceptable and ineligible for further consideration for award.  Id.

The agency received 552 proposals, including a proposal from CRS.  Agency Report (AR), Contracting Officer Statement of Facts (COS) at 2; AR, Memorandum of Law (MOL) at 4.  The agency evaluated the protester’s proposal under the service-disabled veteran-owned small business (SDVOSB) grouping.[4]  AR, MOL at 4. 

As relevant here, the agency found CRS’s proposal unacceptable under the management approach factor, domain-specific capability in a health-related mission subfactor.  See AR, Tab 7, Go/No-Go Assessment, Factor 2, Subfactor 1- Domain Specific Capability in a Health-Related Mission Socioeconomic Group:  SDVOSB, at 4, 10.  Specifically, the agency found that the examples CRS provided in its proposal all involved “provision of IT services and solutions, which [was] not sufficient to demonstrate inherent capabilities in health-related missions.”  Id. at 10. The agency also noted that CRS’s proposal also did not demonstrate that it possessed the requisite capability through “internal resources with substantial relevant experience.”  Id.  As a result, the agency found CRS’s proposal ineligible for further consideration for award.  Id.

_______________________________________________________________________________

Here, the solicitation provided that in phase 1 of the evaluation, proposals were to be evaluated on a go/no-go basis, i.e., non-comparative basis.  See RFP at M-3, M-4.  The solicitation further provided that if rated unacceptable under any factor in phase 1, the entire proposal would be rendered unacceptable and ineligible for award.  See id. at M-4.  Further, the record provides no support for the agency’s argument that CRS’s proposal was eliminated because it was not responsive to the solicitation.  Contrary to the agency’s arguments, the record shows that the agency found that the examples provided by CRS in its proposal were “not sufficient to demonstrate inherent capabilities in health-related missions” and that CRS’s proposal did not demonstrate that it possessed the requisite capability through “internal resources with substantial relevant experience.”  See AR, Tab 7, Go/No-Go Assessment at 10.  On this record, we find that the agency’s conclusion relates to CRS’s capability to perform the contract, not simply the adequacy or completeness of its proposal submission.  See 22nd Century Team, LLC--Costs, B-412742.4, Dec. 15, 2016, 2016 CPD ¶ 369 at 6.  Accordingly, the Small Business Act requires that the agency should have referred CRS to the SBA for a COC review in accordance with 13 C.F.R. § 125.5(a)(2)(ii).  Cascadian Am. Enters., B-412208.3, B-412208.4, Feb. 5, 2016, 2016 CPD ¶ 29 at 7-8.

In sum, the agency evaluated the small business offerors on an acceptable/unacceptable basis, as opposed to a comparative basis, with respect to relevant experience, a responsibility-type evaluation factor, and found CRS’s proposal unacceptable under that factor.  See 13 C.F.R. § 125.5(a)(2)(ii).  As such, rejection of CRS’s proposal based on its rating of unacceptable under the management approach, domain-specific capability in a health-related mission subfactor, without first referring the matter to the SBA for a COC determination, was improper.  Accordingly, we sustain the protest. 

 

Share this post


Link to post
Share on other sites
15 hours ago, PD216ohio said:

(f) prohibits late submissions.

Why do I think 15.206 does not apply?  Because the solicitation already stated that evaluations are based on price and experience.  After quotes were received, the CO made a decision to allow people to add their experience to their quote because they didn't feel that was clear somehow.  This isn't the same as saying, "oh, we think we should have asked for experience" after quotes were received and the due date had passed.

Assuming that you have standing, to prevail on your protest, you will have to show that the government's actions were not consistent with 15.206 so that the later submissions were late and could not be accepted.  If you are successful in this, you will have to show that you were harmed by the government's actions.  From what you have written, I think you have a slim chance of being successful.

Share this post


Link to post
Share on other sites

Given that the outcome, if I win, is that another bidder will be the awardee... I do not think it is worthwhile to file and cause such a disruption to the project.  I might be a pain in the butt, but I'm not a complete jerk, lol.

I do feel rather confident that I would win the case but lose the award.

FWIW, I just completed a project that was protested against my award, GAO ruled in favor of the award (it was a pretty clear cut case but still took around 90 days to resolve).

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.


×
×
  • Create New...