Jump to content
The Wifcon Forums and Blogs
PD216ohio

How do incorporated FAR provisions affect Part 13 - potential protest

Recommended Posts

PD216,

It seems you are the only participant in this thread to feel confidence in your protest victory.  I think real learning would occur, either for you or for us, if you did protest.  But regardless, I think letting go is the best answer, and I wish you well in future opportunities.

Share this post


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

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

 

Napolik, I don’t disagree with the Decision.  And tHe evaluation criteria was judgemental :  “internal resources with substantial relevant experience. “.  

That is different than: “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.”  Sea Box, Inc., B-414742, Sept. 6, 2017.”

 

Share this post


Link to post
Share on other sites
On 5/30/2019 at 12:22 PM, ji20874 said:

PD216,

It seems you are the only participant in this thread to feel confidence in your protest victory.  I think real learning would occur, either for you or for us, if you did protest.  But regardless, I think letting go is the best answer, and I wish you well in future opportunities.

There are a lot of people here that don't realize that the full incorporation of 52212-1 into an rfq changes the rules of simplified acquisition. This fact has been decided so in numerous GAO cases. It seems to be a common mistake (or careless) to incorporate it and not understand what the effect is. 

Share this post


Link to post
Share on other sites

We fully understand the federal acquisition process.  But you erred in failing to allow that a contracting officer may update/amend a solicitation, even after receipt of quotes -- and it appears that this is what happened here.  The contracting officer treated everyone fairly.  You lost because your quote didn't provide the best value (your price was too high).

No one here supported your protest plan, and you think we're all stupid?  No.

Share this post


Link to post
Share on other sites
13 hours ago, ji20874 said:

We fully understand the federal acquisition process.  But you erred in failing to allow that a contracting officer may update/amend a solicitation, even after receipt of quotes -- and it appears that this is what happened here.  The contracting officer treated everyone fairly.  You lost because your quote didn't provide the best value (your price was too high).

No one here supported your protest plan, and you think we're all stupid?  No.

You said yourself that you think another firm would win if you prevailed. You have no evidence that the next firm would be disqualified.

So how would you have standing as an interested party  to win a protest?

Share this post


Link to post
Share on other sites

I've been troubled with this topic--not the responses by any member.  Assume that the agency intended this to be an RFQ.  Then why is FAR clause 52.212-1 in this solicitation with all the references to offer and offeror?  I shave my head so I can't pull my hair out.

Forget that any possible protest is late for now.  Earlier this week, I viewed this page in the protest section of Wifcon.com and found this:

Quote

The RFQ here provided that "[o]ffers are requested by COB Friday, September 24, 1999." Language requesting quotations by a certain date cannot be construed as establishing a firm closing date for the receipt of quotations absent a provision expressly providing that quotations must be received by that date to be considered. John Blood, B-274624, Dec. 19, 1996, 96-2 CPD para. 233 at 2; Instruments & Controls Serv. Co., B-222122, June 30, 1986, 86-2 CPD para. 16 at 3. Here, the language in the RFQ requesting quotations by September 24 does not meet that standard. The agency therefore should have considered any quotations received prior to source selection if no substantial activity had transpired in evaluating quotations and other vendors would not be prejudiced. Instruments & Controls Serv. Co., supra. Failure to do so would be inconsistent with the statutory provision authorizing simplified procedures for small purchases, 10 U.S.C. sect. 2304(g)(1)(A) (Supp. IV 1998), which requires that agencies obtain competition to the maximum extent practicable. 10 U.S.C. sect. 2304(g)(3) (1994); Instruments & Controls Serv. Co., supra. Since the RFQ here contained no late quotations clause; absolutely no activity with regard to the evaluation of quotations had transpired prior to the receipt of Sugar Blues' quotation; and there is no indication that any other vendor would be prejudiced, the quotation should have been considered.  (G.E.G. Sugar Blues & Noe's Colors, B-284117, February 22, 2000)  (emphasis provided)

You will find something similar near this blurb on that same page but I didn't look further.  I focused on the expressly providing part of the first quote I highlighted and wondered what that meant.  Then I went back to this topic and read the original post with the reference to the wrong clause for this procurement.  I did a search at GAO using RFQ and wrong clause.  Voila.  This popped out first.

Quote

The agency posted with the RFQ a memorandum that contained detailed instructions for the preparation and submission of quotations; the memorandum also identified the evaluation criteria and basis for award.  Of relevance here, the memorandum required that quotations be submitted electronically directly to the DHS contract specialist--at her email address provided in the memorandum--no later than 10:00 a.m. Eastern Standard Time (EST), on September 8, 2015.  Id. at 1.  The memorandum further cautioned that “[q]uotations not received by the time and date specified and in the manner specified herein will be considered non‑responsive and eliminated from further consideration.”  Id.  The agency reiterated--for a third time--that “[t]o be considered timely, electronic copies of the quotation submission must be received at the specified email address no later than 10:00 AM EST on September 08, 2015.  The Government will confirm receipt of your submission via email reply.”  Id. (underline removed).  Notably, the RFQ did not instruct vendors to submit quotations via GSA’s e-Buy portal. 

In addition, the RFQ incorporated by reference the late submission provisions of FAR clause 52.212-1, which provides that “[o]fferors are responsible for submitting offers . . . so as to reach the Government office designated in the solicitation by the time specified in the solicitation.”  RFQ at 1; FAR clause 52.212-1(f).  The provision further provides as follows: 

Any offer . . . received at the Government office designated in the solicitation after the exact time specified for receipt of offers is “late” and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and--

 (A) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers; or

(B) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers . . . .

FAR clause 52.212-1(f)(2)(i).  (emphasis provided)

Advanced Decisions Vectors, Inc. B-412307: Jan 11, 2016

(I did not correct the font in the quoted text above because GAO had it indented and I didn't want to indent it myself.  So you may have to squint to read it.)

OK GAO.  Three times in the first paragraph of the quoted text above is enough for me to accept that it is expressly providing.  We need a hybrid where an aspect of a quote uses offer rules and I am the correct person to come up with a new term for such a hybrid quote/offer.  It is Quofer!  That's better than contracting mongrel.  I'm thinking about a defintion in FAR Pat 2 and sending it to the FAR Councils.

Now we move to the second part of the quote.  GAO quotes FAR Clause 52.212-1 since it was in the quofer.  Doh, GAO.

Share this post


Link to post
Share on other sites

I like your observation.  A quofer is a mongrel -- it is messy -- neither parent claims it, and yet they created it.

If contracting professionals would read the FAR, and do what it says, we won't create such mongrels.  In this case, the contracting officer used 52.212-1 in the RFQ, but didn't need to -- the prescribing language for 52.212-1 calls for its use when seeking offers, not quotes.  How many of us can tell the difference between an offer and a quote?  The prescribing language also allows for 52.212-1 to be tailored, which probably wasn't done in this case.  If the contracting officer felt a need for something like 52.212-1 in his or her RFQ, he or she could have carefully tailored it and would have still had a quote.

So, based on the contracting officer's sloppiness, a mongel quofer was created, inheriting the attributes of both a quote and an offer -- messy.  But it is a living thing, and it has to fit into our society.  So having given life to the mongrel, we have to work with it as best as we can.

In this case, the late attribute was inherited from the offer side, and the simplified attribute was inherited from the quote side.  

In this case, the original poster asserts that everyone else's submission was late and only its submission was timely -- the original poster wants to emphasize the offer parentage and reject all the other submissions, and wholly ignore the quote parentage.  To me, the offer parentage prevails on the matter of late quotes, but the quote parentage prevails on the matter of informal amendments.  If there was no informal amendment, I would agree with the original poster and enforce the late provision (from the offer parentage) -- but there was an informal amendment (from the quote parentage), and everyone got a chance to update/resubmit, and everyone was treated fairly, and effectively a new receipt date was set.  If I were the judge, and if I had to rule on the merits based on the facts presented by the original poster, and wanting to give life to all parts of this mongrel, and mindful of the duty to be fair, I would have ruled that (1) the late provisions are enforceable, and (2) the informal amendment is allowed -- and since none of the submissions were late (based on the informal amendment), the late provision is not brought into play.  I would rule in a manner that recognizes both the offer and the quote parentage, and I would rule against the original poster.  

The original poster seems to want a decision that honors only the offer parentage and ignores the quote parentage.  But we can't be purists when we're dealing with mongrels. 

Actually, if I were the judge, I wouldn't have to rule on the merits.  Rather, I would dismiss the protest as late because the original protester should have filed its protest when the contracting officer asked for new submissions rather than 10 days after award.  Or, that failing, I would dismiss the protest because the original poster was not an interested party as the GAO defines that term (next in line for the award).  Or, even that failing, I would dismiss the protest because even if there was error, the original protester was not prejudiced or adversely affected, and every protest has to demonstrate prejudice.

All of this arises because of the contracting officer's sloppiness.

Share this post


Link to post
Share on other sites

I'm still sorting this out in my mind.  At present, I'm on the side of accepting due dates for receipt of quotations.  However, I may change my mind.  Below are two blurbs from GAO decisions which also trouble me.

Quote

The RFQ here provided that "[o]ffers are requested by COB Friday, September 24, 1999." Language requesting quotations by a certain date cannot be construed as establishing a firm closing date for the receipt of quotations absent a provision expressly providing that quotations must be received by that date to be considered. John Blood, B-274624, Dec. 19, 1996, 96-2 CPD para. 233 at 2; Instruments & Controls Serv. Co., B-222122, June 30, 1986, 86-2 CPD para. 16 at 3. Here, the language in the RFQ requesting quotations by September 24 does not meet that standard. 

OK GAO, what is the standard?  Apparently "requesting" is not strong enough but "must" is.  OK, but it could be used as a procurement rule that GAO may pull out of its bag of precedents sometime in the future.

If you look at the second case that I used in my post (Advanced Decisions Vectors, Inc. B-412307: Jan 11, 2016,) you will see that the agency warned quoters 3 times aboiut a due date for quotes.  That wasn't enough for GAO's attorneys, they decided to support this by using the wrong clause in an effort to make their position stronger.  Using the wrong clause with all its citations to offers and offeror in a decision dealing with an RFQ is shoddy workmanship.

In government contracting, we all should recognize key words, their meaning, and their differences.  When you hear the word bid versus proposal, it means something.  When you hear the acronym IFB versus RFP,  it means something.  When you hear the word shall versus may, it means something, and when you hear the word quote versus offer, it means something.  Using the wrong terminology can cost the government money.  

Share this post


Link to post
Share on other sites
21 hours ago, bob7947 said:

I'm still sorting this out in my mind.  At present, I'm on the side of accepting due dates for receipt of quotations.

Due date is not the issue.   You and ji nailed it otherwise with regard to use of terms (offer) and the 52.212-1 either not tailored to meet FAR conventions (change offer to quote etc.) or not use the 52.212-1 at all.

Remember the SF-1449 form has a due date even if RFQ is marked.   And due date for a quote has been around for a long time - reference the SF-18. 

And then sort it out more by (as noted by the OP) noting the order of precedence language of FAR 52.212-4! 

All leads back to my post on May 26 on giving considerations to other facts as I believe the OP's thinking on late as provided by 52.212-1 is sound.

At the hazard of having extended discussion on another part of this thread I would only offer that in the OP's particular case, and agreeing that there are many details missing, my read between the lines is that the OP may have a possibility of having his/her protest considered even if filed late.   After all it sounds like a RFP, yet debriefing to the extent of RFP was denied, amendment does not sound like it was formal, and the consensus in this case the government was messy and sloppy may give rise to GAO accepting the protest under the standard of 4 CFR 21.2(c).   I for one would have fun in developing a protest that supports GAO should consider the protest even if not timely as the issues are significant to the procurement system.  Such a decision could in fact create case law that helps give direction as to how 52.212-1 should be handled with regard to an RFQ.

Share this post


Link to post
Share on other sites
Quote

Remember the SF-1449 form has a due date even if RFQ is marked.   And due date for a quote has been around for a long time - reference the SF-18. 

In questioning the feasibility of a due date for an RFQ, I was reworking the process in my head and deciding what it should look and work like.  In that mode, I don't concern myself with the existence of government forms, regulations, or laws.  They can all be changed. 

I realize that is beyond the original posters (OP) intent but the sloppiness of the procurement and GAO's decisions upset me.

Share this post


Link to post
Share on other sites

Hi ji20874, 

Excellent citations. I find case law extremely fascinating to read (I served 6 years as a local legislator and have created a few laws myself). 

You mentioned that there would still be an allowance for amendments by the CO and that I've overlooked this point  apologies if I didn't mention it clearly but there was no amendment, in my opinion (for what that's worth lol). The solicitation cleary stated that experience was an evaluation factor. Many of the offerors did not submit an experience profile (inexperienced bidders, perhaps). The CO then sent an email offering them a second chance to do so. I would not call that an amendment but an offer to correct deficient bids. 

On edit : I wanted to add that I did some searching of GAO decisions by using the combined keywords of "rfq" and "52212-1", and that's where I felt that I found many pertinent cases as well. 

Share this post


Link to post
Share on other sites
On 6/1/2019 at 9:04 AM, joel hoffman said:

You said yourself that you think another firm would win if you prevailed. You have no evidence that the next firm would be disqualified.

So how would you have standing as an interested party  to win a protest?

Likewise, it is not absolute that the other bidder would win. However, without progressing, we don't have any details about that other bidder, their bid and the evaluation process. 

Share this post


Link to post
Share on other sites
On 6/1/2019 at 8:45 AM, ji20874 said:

We fully understand the federal acquisition process.  But you erred in failing to allow that a contracting officer may update/amend a solicitation, even after receipt of quotes -- and it appears that this is what happened here.  The contracting officer treated everyone fairly.  You lost because your quote didn't provide the best value (your price was too high).

No one here supported your protest plan, and you think we're all stupid?  No.

I didn't mean to be insulting. I was referring to two different groups. The first group being the people here who didn't think 52212-1 changes the rfq. The second group being COs not in this discussion who don't understand or do sloppy work. 

As someone on the contractor side, I see many many sloppily or lazily written solicitations. However, I do see some that are superb and it kind of excites me when I do. 

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...