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KO Sent Denial and Referenced FAR 2.101 and 3.104

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I tried searching for this in the forum but couldn't find any relevant information, my apologies if I missed something.  I am new to the community. 

We were recently deemed unnacpetable based on points verification within our Technical Narrative writeup on a IDIQ.  The Contracting Officer (KO) send an email with the notice stating that the agency was unable to verify 1,650 of of the 5,350 points within our Technical Narrative.  Which put us below the 4,200 points required to continue in the process.  

What I was mainly concered about was the fact that the KO referenced FAR 2.101 and FAR 3.104 in the Subject body saying see this specific clauses. FAR 3.104 is about Procurement Integrity.  Now we are new to govnerment contracting and I'm not sure if the are intimating that we violated some kind of procurement activity either potentially or accidentally.  But I'm assuming that would have been stated specifically in the denial letter they sent.  Or would I be incorrect in that assumption?

At one point we did speak with one of the agencies Engineering Director's and discussed some potential solutions we had in mind for problems they expressed in a conference.  He asked us to send a white paper on that.  In the white paper we mentioned we were bidders on IDIQ, but our thought process was that we would have a potential contract vehicle in the future upon which we could take advantage of the white paper's proposed solutions.  Maybe that was incorrect to do on our part, I'm not sure.   Can anyone shed any light as to why they would reference that in the subject body, is that a fairly standard clause to reference?  

Thank you

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1 hour ago, NewtoGovContracting said:

But I'm assuming that would have been stated specifically in the denial letter they sent.  Or would I be incorrect in that assumption?

Who knows?  No one here will know.  You will have to ask the contracting officer for more information.  Or, if you think your exclusion was improper, you may file a protest with the agency or with the GAO (but pay attention to timeliness).

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Newto, I am going to assume here that you aren’t planning to contest your evaluation rating based upon the point scoring.  I’m assuming that you are questioning the reference to procurement integrity. 

Not sure if there was any explanation or more specific wording in the “denial letter”.    Your original post doesn’t clearly describe the timing (“At one point...”) of your communications with the engineering director or whether you are competing for inclusion in an ID/IQ contract or if this is a task order under an ID/IQ. 

Based upon my limited understanding of the specifics, my advice is to ask the government to explain what they mean by the subject reference to procurement integrity and what definition of a word or term  they are referencing in 2.101. Unless there is more explanation in the KO’s letter, you can’t “see [these] specific clauses”. Please note that those subject references are not “clauses” and they are not “specific” . They are titles of subparts and sections.  

They might not want to elaborate at this point during the on-going competition. If it is a competition for award of a contract, you can ask for a debriefing. 

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Procurement Integrity violations can be potentially very serious.  I would immediately request a meeting with the KO and head of the office.  Read the FAR details on how violations get treated.  If the KO feels you violated the Act, you need to address it now.

But based on the other things you said, it’s probably either a mistake or poor choices of wording.  For example, the KO may have used integrity violations because they couldn’t verify your scoring in the technical evaluation.

Regardless I would get answers on whether it’s really a Procurement Integrity issue as soon as possible.

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3 hours ago, joel hoffman said:

Newto, I am going to assume here that you aren’t planning to contest your evaluation rating based upon the point scoring.  I’m assuming that you are questioning the reference to procurement integrity. 

Not sure if there was any explanation or more specific wording in the “denial letter”.    Your original post doesn’t clearly describe the timing (“At one point...”) of your communications with the engineering director or whether you are competing for inclusion in an ID/IQ contract or if this is a task order under an ID/IQ. 

Based upon my limited understanding of the specifics, my advice is to ask the government to explain what they mean by the subject reference to procurement integrity and what definition of a word or term  they are referencing in 2.101. Unless there is more explanation in the KO’s letter, you can’t “see [these] specific clauses”. Please note that those subject references are not “clauses” and they are not “specific” . They are titles of subparts and sections.  

They might not want to elaborate at this point during the on-going competition. If it is a competition for award of a contract, you can ask for a debriefing. 

Sorry, the communication with the engineering director is pre award and sending white paper was pre award.

The denial letter references nothing other than the points shortage as the reason for being removed from competition.  It mentioned nothing about sending the white papers, or any discussions, which the conversation we had was only about some ideas around potential solutions to some issues they mentioned.  We didn't discuss the ID/IQ at all. 

This is a bid for a spot in the ID/IQ, not a task order. 

We might protest as we are a little befuddled as to how they disallowed so many points.  We established a JV with another experienced government contractor who had a lot of the past performance.  We provided plenty of examples of work that lined up with the point requirements.  

But yes a my main question is about the procurement integrity reference. 

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16 minutes ago, formerfed said:

Procurement Integrity violations can be potentially very serious.  I would immediately request a meeting with the KO and head of the office.  Read the FAR details on how violations get treated.  If the KO feels you violated the Act, you need to address it now.

But based on the other things you said, it’s probably either a mistake or poor choices of wording.  For example, the KO may have used integrity violations because they couldn’t verify your scoring in the technical evaluation.

Regardless I would get answers on whether it’s really a Procurement Integrity issue as soon as possible.

Thanks, that's what had me concerned, but if it was anything other than them thinking we falsely tried to claim points, it doesn't make sense.  That's a judgement call to a certain extend or a difference of opinion, unless we provided nothing to back that data up. 

I have already requested a debrief, so let's see what they come back with.  

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In your request for debriefing, did you list the questions for which you would like answers?  You might get a paper debriefing with no chance for a meeting to ask questions, so listing your questions in the request can make sure you get a chance to ask them.  

Inasmuch as all source selection information is supposed to be marked with something like “Source Selection Information — See FAR 2.101 and 3.104,” I am guessing there is no Procurement Integrity Act allegation at all; rather, this is just an inartful expression work on the contracting officer’s part or a simple misunderstanding on the original poster’s part of the marking requirement in FAR 3.104-4(c).

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44 minutes ago, ji20874 said:

In your request for debriefing, did you list the questions for which you would like answers?  You might get a paper debriefing with no chance for a meeting to ask questions, so listing your questions in the request can make sure you get a chance to ask them.  

Excellent advice. 

44 minutes ago, ji20874 said:

Inasmuch as all source selection information is supposed to be marked with something like “Source Selection Information — See FAR 2.101 and 3.104,” I am guessing there is no Procurement Integrity Act allegation at all; rather, this is just an inartful expression work on the contracting officer’s part or a simple misunderstanding on the original poster’s part of the marking requirement in FAR 3.104-4(c).

ji, that is a very plausible guess. I would ask what they meant though in the list of questions, to verify. 

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1 hour ago, ji20874 said:

In your request for debriefing, did you list the questions for which you would like answers?  You might get a paper debriefing with no chance for a meeting to ask questions, so listing your questions in the request can make sure you get a chance to ask them.  

Inasmuch as all source selection information is supposed to be marked with something like “Source Selection Information — See FAR 2.101 and 3.104,” I am guessing there is no Procurement Integrity Act allegation at all; rather, this is just an inartful expression work on the contracting officer’s part or a simple misunderstanding on the original poster’s part of the marking requirement in FAR 3.104-4(c).

No, I just requested the debrief because we only had 3 days to request and we need to review the proposal and RFP again.  It's been almost 2 years since we bid this

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1 hour ago, NewtoGovContracting said:

No, I just requested the debrief because we only had 3 days to request and we need to review the proposal and RFP again.  It's been almost 2 years since we bid this

The plot thickens as information dribbles out.  Good luck, Newto.

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4 hours ago, ji20874 said:

In your request for debriefing, did you list the questions for which you would like answers?  You might get a paper debriefing with no chance for a meeting to ask questions, so listing your questions in the request can make sure you get a chance to ask them.  

Off topic, but written rather than oral debriefings is another example of how professionalism in our field is going away.  It’s now like KOs are afraid and don’t know how to defend their decisions.  They are scared of direct questions so they hide. That’s why so many protests happen. Rant over.

OP, just in case they are serious about Procurement Integrity, you need immediate answers. I wouldn’t let them put you off until after award.  If they tell you it’s not truly a violation, waiting is at your discretion.  

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18 hours ago, formerfed said:

Off topic, but written rather than oral debriefings is another example of how professionalism in our field is going away.  It’s now like KOs are afraid and don’t know how to defend their decisions.  They are scared of direct questions so they hide. That’s why so many protests happen.

Debriefings can be ways for the government to obfuscate issues regarding a procurement.  I once worked with a contractor that received a post award debriefing in the form of an extract from a PowerPoint presentation made to the SSA.  You can imagine how beneficial and clear that was.

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21 hours ago, Retreadfed said:

Debriefings can be ways for the government to obfuscate issues regarding a procurement.  I once worked with a contractor that received a post award debriefing in the form of an extract from a PowerPoint presentation made to the SSA.  You can imagine how beneficial and clear that was.

I will say that I would send the winner and the other firms in the competitive range  their evaluation and rating sheet** with comments as an attachment to the notice of award and offer them a written or oral debriefing if they wished. Brave or foolhardy, I guess. But we had five or less finalists, usually. 

Edit:  (** we removed the actual assigned numerical or adjectival ratings from the evaluation and rating documentation). Forgot that little detail originally. 

This was mostly for construction and design-build competitions. Caddell Construction once requested a debriefing and asked to see the awardee’s design proposal, which was incorporated at award to the contract, as part of the debriefing.

The Caddell corporate proposal team (all of whom I knew) brought their architect and sat him at the end of the table in the conference room. I let them review the drawings as they grilled their designer. 

They told me that they were disappointed but understood and agreed that the winner beat them...

We never had a protest using that method.  Lucked out. 

Edited by joel hoffman

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Joel, there are many contracting officers who refuse to provide one or more of the items required by FAR 15.506 even when they are specifically asked for it. 

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The problem is just FAR 15.506 items may not let unsuccessful offerors know why they lost.  Joel’s approach is different - it’s showing unsuccessful sources why someone else won.  If you’re confident in your decision, why not?

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The purpose of the debriefing is to furnish the basis for the selection decision, rather than to let unsuccessful offers know why they lost.  It might seem to be two sides of the same coin, but there is a subtle difference.

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Correction to my above post:

We edited out the actual assigned points or adjectival ratings from the proposer’s evaluation and rating sheet** In the attachment to the award letter (not a complete debriefing), we provided all evaluation comments, including:

+ strengths

- weaknesses 

* deficiencies, also including deviations or omissions 

• any clarification needs, if discussions were to be held with that firm.

**(Ain’t it easy and handy to copy, paste and edit electronic SS documents used for multiple purposes? 😊)

We also sent the same type info to the awardee and offered them a debriefing, upon request.

ji, I disagree with your stated purpose of a debriefing. In my opinion, you make it look like a defense of the award decision, rather than an explanation and also to help the offeror better compete in the future.  

See this from “A Pocket Guide to Federal Government Contract Debriefings” at: https://www.hollandhart.com/pdf/2016ContractDebriefings.pdf  (Emphasis added)

“What is a Debriefing?

A Debriefing under FAR Part 15 is an opportunity for an offeror to better understand the basis for an agency’s selection decision. Debriefings give you

- a chance to hear from the agency regarding: the evaluation process; 

- how your proposal was evaluated in relation to the evaluation criteria; 

- what was successful in your proposal; what was lacking and in need of improvement in your proposal;

- and reasonable responses to relevant questions about whether source selection procedures were followed.”

See also later discussion and questions to ask under:

”Always Ask How You Could Have Done Better!...”

 

Here is some relevant coverage at 15.506:

”(d) At a minimum, the debriefing information shall include— 

“(1) The Government's evaluation of the significant weaknesses or deficiencies in the offeror's proposal, if applicable; 

“(2) The overall evaluated cost or price (including unit prices), and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror; 

“(3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection;”  [generally N/A]

“(4) A summary of the rationale for award;...”

 

Edited by joel hoffman
Corrected typos, Rearranged a paragraph and noted “emphasis added” in the quotes.

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Also perform Google Searches similar to “purpose of a debriefing” (non-FAR specific definitions) and  “purpose of a debriefing FAR” and see what pops up. 

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2 hours ago, joel hoffman said:

ji, I disagree with your stated purpose of a debriefing. In my opinion, you make it look like a defense of the award decision, rather than an explanation and also to help the offeror better compete in the future.  

Joel,

See FAR 15.506(a)(1)--

  • "An offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award in accordance with 15.503(b), shall be debriefed and furnished the basis for the selection decision and contract award."

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“‘...shall be debriefed [AND FURNISHED] the basis for the selection decision and contract award.”

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Update on this:

No there has not been a violation of procurement integrity it had something to do with the format/method of communication.  There is a protocol to sending emails or information when it pertains to source selection, which I am still completely unclear about.  So will need to research that.  The KO response is below if anyone has any thoughts.  

"No there has not been a violation of procurement integrity.  There is a protocol to sending emails or information when it pertains to source selection.  Also you will be receiving a written debrief so there will not be a meeting scheduled and we are not accepting and/or answering questions."

So I'm betting there's been a ridiculous amount of protests because Vendors were not afforded the opporutunity to ask questions and gain resolution on why they were not selected.  And I'm doubting the writeup will contain anything truly useful, but I gess we will see.  

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52 minutes ago, joel hoffman said:

“‘...shall be debriefed [AND FURNISHED] the basis for the selection decision and contract award.”

Joel, I include"furnished" in my posting describing the purpose of the debriefing, which is to furnish the basis for the selection decision -- I'm missing the point of your posting.

44 minutes ago, NewtoGovContracting said:

There is a protocol to sending emails or information when it pertains to source selection, which I am still completely unclear about.  So will need to research that. 

Earlier in this thread, I referenced FAR 3.104-4(c) as the likely reason for the contracting officer's referencing of FAR 2.101 and 3.104.

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6 hours ago, ji20874 said:

Joel, I include"furnished" in my posting describing the purpose of the debriefing, which is to furnish the basis for the selection decision -- I'm missing the point of your posting.

ji, to furnish the basis for the selection decision is not the sole purpose of the debriefing. The sentence doesn’t state or even imply that.  In my opinion it says that “an offeror...shall be debriefed AND [the offeror shall] be furnished the basis of the selection decision and contract award. “

“d) At a minimum, the debriefing information shall include— 

(1) The Government's evaluation of the significant weaknesses or deficiencies in the offeror's proposal, if applicable; 

(2) The overall evaluated cost or price (including unit prices), and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror; 

(3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection; 

(4) A summary of the rationale for award; 

(5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and 

(6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.”

Thats my point.

Edit: Providing an offeror it’s evaluation sheet with strengths, weaknesses, deficiencies and other comments is consistent with (d) (1) above.

Since the winning design proposal is part of the unclassified contract, it is not protected information and can be shared with other proposers after award, absent some specific justification.

Sharing such information can help them become more competitive in the future. 

Sorry if you don’t understand and/or agree. 

Edited by joel hoffman

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On 7/1/2019 at 8:03 AM, ji20874 said:

Joel,

See FAR 15.506(a)(1)--

  • "An offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award in accordance with 15.503(b), shall be debriefed and furnished the basis for the selection decision and contract award."

This does not support the claim that "furnishing the basis of the selection decision" is the sole purpose of a debriefing, much less that a debriefing has a sole purpose. Non sequitur by ji.

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