FAR 15 Proposal Mistakes and FAR 15.306(b)(3)

[Freyr]

I guess my whole question revolves around having a solicitation requirement that doesn't really reflect the Government's needs and ends up kicking out otherwise good offerors but no one realizes it until proposals are received.

So I've been pondering this question of whether an offeror would be allowed to correct a minor error in their proposal in a negotiated procurement on a pass/fail item if failure to correct that error would result in removal of the proposal from consideration. Pass/fail items don't result in any proposal being rated higher or lower than another proposal, it's more a matter of acceptability/RFP compliance, so would a change in one of those after receipt of proposals necessarily be considered a "material" change or a deficiency as FAR 15.001 defines a deficiency as "a material failure of a proposal to meet a Government requirement or a combination of significant weaknesses in a proposal that increases the risk of unsuccessful contract performance to an unacceptable level." This pass/fail item may not necessarily increase the risk of unsuccessful performance to an unacceptable level but the solicitation itself may have been unintentionally restrictive enough regarding that item to result in removal of the proposal from consideration. 

For example, maybe an offeror is instructed to input a certain dollar amount for a cost reimbursable CLIN (say $10,000) but instead they input $5,000 and the RFP strictly states that any deviation from the pricing instructions would result in removal of the proposal from consideration. Or perhaps an offeror was instructed to submit a management approach which must discuss certain areas of employee retention but the plan fails to address it (again, it's a pass/fail and not rated on a scale). Changes to either of these wouldn't result in the proposal being rated higher or lower than another other proposal and allowing the offeror to correct their apparent mistakes wouldn't have resulted in any other offeror changing their proposals to their competitive advantage. 

FAR 15.306(b)(3) seems like an interesting avenue to allow for correction of these kinds of mistakes that are apparent upon review a proposal. Has anyone ever seen it actually implemented in such a manner so that the clarification process may be used rather than having to engage in discussions with each offeror? It's interesting to me that FAR 15.306 points to FAR 14.407 for how to handle these types of mistakes. The GAO always says that the acid test for whether it was discussions vs clarifications is the offeror getting the chance to revise their proposal but the COFC doesn't seem to always agree with that. Would the simplest and most reasonable solution be to just change the RFP after receipt and let everyone send in updated proposals or maybe just document the reasoning for not kicking those offerors out and continue the evaluation with those offerors?

[ji20874]

Freyr,

I cannot understand your story.  In the first paragraph, you talk about the solicitation being wrong.  Then, in the next paragraph, you talk about the offer being wrong.  Which is it?

If the solicitation is wrong, see FAR 15.206(c), (d), and (e).

If the offer is wrong, use FAR 15.306(a), (b), or (d) to deal with it.  Or, reject the offer and select a clean offer for award.

[Freyr]

Sorry about the confusion, clearly the problem is not half solved yet for me! I think what my CO is looking to do is avoid needing to have all the offerors resubmit their proposals by amending the solicitation so she's looking to use the authority under FAR 15.306(b) to deal with only those specific offerors who have the issue or simply waive/relax that solicitation requirement that's causing problems. 

[ji20874]

The proper (and only?) way to waive or relax a solicitation requirement is to amend the solicitation.  See FAR 15.206(c), (d), and (e). 

FAR 15.306(b) ("communications") gives you zero authority to waive/relax a solicitation requirement, as well as zero authority to fix a problem in an offer.  All it does is allow you to make an inquiry so that you can understand the offer and decide whether to keep it in the competitive range or throw the bum offeror out.

You can solve problems in offers under FAR 15.306(d) ("discussions").  You can also use discussions to correct mistakes in offers.

But for a problem in your solicitation, see FAR 15.206(c), (d), and (e). 

[Freyr]

Thank you for the replies, I'm taking this as a great learning opportunity. I'm curious what you think of the below article. It seems to imply that while it's a slippery slope there is some discretion COs can use when evaluating provided there's no prejudice.

 

https://govcon.mofo.com/post-award-protest-primer-series/unstated-evaluation-criteria-and-waived-solicitation-requirements-bid-protest-primer-10/

 

Specifically the last part that says, "the protester must demonstrate that it “would have submitted a different proposal or quotation or that it could have done something else to improve its chances for award had it known that the agency would waive the requirement.”  See Glock, Inc., B-414401, June 5, 2017, 2017 CPD ¶ 180"

[ji20874]

We don't know your exact circumstances -- we haven't seen the solicitation, the offer, or the evaluation report.  You have to decide your next step.

(1) It is one thing to inadvertently err, or to see something differently than another, or to push the elasticity of a matter.  If this happens, and a protest follows, the protestor must show both your error and the prejudice it caused.

(2) It is something entirely different to purposefully lie, to purposefully treat an offeror unfairly, to purposefully break the rules.  

We can't tell your proposed action is (1) or (2).  Nothing in the article you cited gives you permission or discretion to purposefully waive a solicitation requirement in favor of one offeror -- it only gives you a defense in case you inadvertently do it.

I think FAR 15.306(b) is absolutely the wrong answer to your problem.  Maybe here is your solution:  If the solicitation included the provision at FAR 52.215-1, see para. (f)(3); or, if the solicitation included the provision at FAR 52.212-1, see para. (g); or, if the solicitation included the provision at FAR 52.214-10, see para. (b)(3).  If the solicitation included none of these, use these as a guideline or a principle anyway.  But only use this approach if doing so will be fair and honorable.

Otherwise, do the solicitation amendment. 

 

[joel hoffman]

Freyr, i agree that we don’t know all the details of your situation and don’t have the entire solicitation. 

However, I suggest that you review this Archived discussion thread:  http://www.wifcon.com/discussion/index.php?/topic/449-contract-awarded-with-a-deficiency-unacceptable/&tab=comments#comment-3472

I did a Forum search on the term "It is a fundamental principle" and numerous threads popped up. You can find other references too on the Internet. Numerous protest decisions discuss this principle, too. 

Second- I will add that you have boxed yourselves in by stating that failure to meet any of the go/no-go evaluation criteria disqualifies that offer from further evaluation.

If there will be a possibility that an error or deficiency in a go/no-go factor is deemed fixable/ correctable if discussions are conducted, then you should not categorically say that you will eliminate all offers with any such deficiencies from further consideration or evaluation, unless you expect robust competition and plentiful quotes or offers. 

Third - “clarifications” do not allow a proposer to correct proposal deficiencies that would render them compliant with the solicitation requirements. That’s what discussions (negotiations) are for. 

Your KO should know that. 

 

Edited November 22, 2019 by joel hoffman

[Freyr]

Thanks guys, we did include 52.215-1 and had been thinking about that as well. We have been kicking ourselves for boxing ourselves in with our own language for sure. I think we'll end up going that route but I'm trying to do some research on what a "proposal modification" really means vs a "proposal revision." The definitions are there but it's not entirely clear how to go about determining if a mistake was made or if a vendor simply claims it was a mistake so we don't inadvertantly end up performing discussions. Most of what I've searched for is regarding offerors trying to submit proposal modifications and a CO rejecting them.

I've also been trying to read through case law as well regarding waiving things, largely reading B-414401.  What stood out to me in this case is that the Army decided to completely forego an entire evaluation factor. It states in there the reasoning was 

" The Army decided that the RFP did not reflect the intended evaluation and,
despite the clear language of the solicitation, imposed a 90 percent confidence level on 
the evaluation."

Overall the GAO found that there was no prejudice due to this decision. I don't see it as the government lying about how they'd evaluate but they also don't go the route of amending the RFP. 

 

 

 

 

[Retreadfed]

21 minutes ago, Freyr said:

Overall the GAO found that there was no prejudice due to this decision.

More precisely, the GAO held that Glock had not shown that it was prejudiced by the Army not rating (waiving) the subfactor.  There is a difference between a protester showing prejudice and the absence of prejudice.

[ji20874]

And in the Glock case, the Army made a decision for the acquisition as a whole, not a decision that one allow for acceptance of one offeror's otherwise-failed offer.

What's the harm in a solicitation amendment and updated offers?  You can issue the solicitation today and require the updated proposals by Monday close-of-business.  Or, if the competition provided you with one or more good offers, just award to one of them.

[Freyr]

We're actually doing multiple award (up to 30) so theoretically the issue would be waived for the numerous proposals with that issue (about 50% of the ones received, including the otherwise highest rated ones). We're getting pressure from the program office to find a faster way to deal with the issue and not allow for revisions/resubmission.

[ji20874]

Okay, so remember that para. (f)(3) of 52.215-1 allows you to waive informalities and minor irregularities in proposals received.  Your attorney can share his or her opinion on whether what you want to do will qualify as “waiv[ing] informalities and minor irregularities.”

[joel hoffman]

I don’t think that it allows you to waive a clear go no go evaluation factor. It doesn’t allow you to simply change the evaluation criteria or the requirements of a factor in order to make an award, without conducting discussions or as an alternative issue the amendment. 

[Freyr]

The funny thing is that our legal office feels issuing an amendment after receipt of proposals to change the eval factors is more risky than waiving requirements (I'm not sure why). The factor that's an issue really only affects about 1% of the work performed, so they feel there's an argument to be made that it's reasonable to relax the requirement for everyone as long as they're treated the same. 

I'm wondering if a claim a potential protestor could make is that since they were rated so low in all the other areas but submitted this part right that they would have been awarded a contract if we kicked out everyone who didn't submit that part right (assuming we do waive the issues). Seems like it would be award to a vendor who isn't necessarily the best value to the Government based on a technicality (or maybe a latent defect in the RFP?) 

[joel hoffman]

You told the world that they had to pass the pass/fail factors to even get further evaluated..

[formerfed]

Without reading everything in detail, I think Joel’s comment and your lawyers advice is right on the mark.  If I were in your situation I would quickly do an amendment waving the one pass/fail requirement if you erred in establishing your requirement.  Ask for any proposal revisions as a consequence and give offerers a few days.   Further advice is don’t make this more complicated than needed and don’t play games with the evaluation plan.  It’s a simple issue - your agency made a mistake stating requirements and you are adjusting to remove something.  You could be done by the time you got your lawyers involved.  

[Freyr]

Thanks guys, I'll be trying to put all this information together for my CO to help with her final decision. Your answers are pretty solidly pointing in a single direction.

Just for my own curiosity as someone still fairly new to being an 1102, if the effect is the same then what's the difference other than the course of action that produces it? If we waive the issue for everyone and just document the circumstances/reasoning then that would have the same effect as posting an amendment that removes it right? 

[joel hoffman]

2 hours ago, Freyr said:

Thanks guys, I'll be trying to put all this information together for my CO to help with her final decision. Your answers are pretty solidly pointing in a single direction.

Just for my own curiosity as someone still fairly new to being an 1102, if the effect is the same then what's the difference other than the course of action that produces it? If we waive the issue for everyone and just document the circumstances/reasoning then that would have the same effect as posting an amendment that removes it right? 

Nope. If you just waive the requirement, then you didn’t conduct the evaluation in accordance with the solicitation.

[Don Mansfield]

13 hours ago, Freyr said:

Just for my own curiosity as someone still fairly new to being an 1102, if the effect is the same then what's the difference other than the course of action that produces it? If we waive the issue for everyone and just document the circumstances/reasoning then that would have the same effect as posting an amendment that removes it right?

I think either way you would effectively be amending the solicitation (waiving the issue for everyone would be a constructive amendment). However, FAR 15.206 requires that you issue an amendment to affected parties and that the amendment contain certain minimum information. It's a procedural requirement.