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PD216ohio

Failure to produce Payment Bond

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I kind of addressed this before but I think I framed the entire situation incorrectly.  The NPS awarded a contract to a competitor.  I was second best offer on the RFP.

There was no requirement for a bid bond BUT there was a requirement to produce a performance/payment bond within 10 days of award. 

Project never gets completed, because awardee could not produce a performance bond, and the project is now up for re-solicitation instead of passing award to me.

If it matters, the only two bidders were the other company and myself.  Both our bids were under the government estimated magnitude for this construction project.

Once I was notified that this all occurred (and before they reissued the solicitation) I insisted that I should be the awardee but the NPS insisted they wanted to resolicit with the exact same solicitation package. Nothing has changed but the dates.

It seems to me that once it was realized that the first awardee could not satisfy the bonding needs within 10 days, the NPS should have acted to disregard them and award to the next responsible offeror.  The NPS waited 120 days (the totality of the POP) before taking any action.

Do I have any recourse?

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9 minutes ago, PD216ohio said:

Do I have any recourse?

No recourse available that I am aware of. 

It is the rights of the government to solicit offers and award contracts. Coming in second doesn't give you a "next in-line for award" position. the NPS could have lost the funding, had second thoughts about the project or one of a hundred other things leading to their decision. 

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44 minutes ago, PD216ohio said:

I kind of addressed this before but I think I framed the entire situation incorrectly.  The NPS awarded a contract to a competitor.  I was second best offer on the RFP.

There was no requirement for a bid bond BUT there was a requirement to produce a performance/payment bond within 10 days of award. 

Project never gets completed, because awardee could not produce a performance bond, and the project is now up for re-solicitation instead of passing award to me.

If it matters, the only two bidders were the other company and myself.  Both our bids were under the government estimated magnitude for this construction project.

Once I was notified that this all occurred (and before they reissued the solicitation) I insisted that I should be the awardee but the NPS insisted they wanted to resolicit with the exact same solicitation package. Nothing has changed but the dates.

It seems to me that once it was realized that the first awardee could not satisfy the bonding needs within 10 days, the NPS should have acted to disregard them and award to the next responsible offeror.  The NPS waited 120 days (the totality of the POP) before taking any action.

Do I have any recourse?

You ask, "Do I have any recourse?"  I assume you are asking whether or not you have a good chance at a successful protest.  Absent additional facts the Government is resoliciting for some irrational reason, you do not.  The hope of competition would likely be treated as a sufficient basis for resoliciting.  In other words, if the Government wants to resolicit, it is free to do so.  See http://www.wifcon.com/pd49_4026.htm.  For the Government to take advantage of FAR 49.402-6, of course, the earlier contract would have to have been terminated for default.  That question wasn't answered in the earlier thread.  In other words, if the earlier contract wasn't terminated for default, it seems likely the Government has no choice other than to resolicit.

The 120-day delay ultimately doesn't make any difference to the analysis.

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Here are some additional decisions for your consideration, still assuming a T4D.  There is no requirement that a repurchase be conducted using precisely the same terms as the original procurement.  Vereinigt Geb Udereinigungsgesellschaft, B-280805, Nov. 23, 1998, 98-2 CPD ¶ 117 at 6f.  There is no requirement to award to the next low bidder on the original procurement.  Arrow, Inc., B-231001, July 13, 1988, 88-2 CPD ¶ 44.  It may even be reasonable to simultaneously rely on FAR 49.402-6 and consider a proposal from an offeror who had not participated in the original procurement.  United States Pollution Control, Inc., B-225372, Jan. 29, 1987, 87-1 CPD ¶ 96.

Remember that the contracting officer may "use any terms and acquisition method deemed appropriate for the repurchase" per FAR 49.402-6(b).  In other words, the GAO's review is limited to whether the Government acted reasonably in resoliciting.

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I know that it is a little more difficult to cancel an IFB than an RFP because folks' prices are revealed publicly.  However, I don't think this is a productive line of attack- you are welcome to peruse Bob's curated list of failed IFB cancellation protests here:

http://www.wifcon.com/pd144041.htm

The Government may have a good reason to have cancelled, there could have been issues with the funding, for example, or perhaps they needed to get some regulatory approval that they did not yet have.  

It is irksome it was reissued without changes, and your price is just hanging out in the open.  Maybe if you call them on the phone and ask for an explanation, they can give you some peace of mind?

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5 minutes ago, apsofacto said:

I know that it is a little more difficult to cancel an IFB...

The Government may have a good reason to have cancelled...

There was no solicitation cancellation. 

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There was a recent successful protest on the basis that the government waived the requirement for performance and payment bond to the successful offerer or bidder.. However, I believe that a protest would have had to been filed within 10 days of learning of the waiver. The decision would have been Posted on the WIFCON homepage within the last week or two.

 

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I started looking through recent protests on with con and can’t find that particular protest. Unfortunately I’m busy this morning doing other things good luck.

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@apsofacto, a reprocurement contract represents a government purchase against the account of a defaulted contractor.  As such, reprocurement contracts are not subject to statutory and regulatory rules governing competition.

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Thank you everyone.  It sounds like I have no recourse and I suppose I will just be submitting my offer again.  I will inquire with the NPS about if they released my numbers to anyone.  Also, the original bidder also is privy to what was a winning bid and could give someone that info.  I'm rather dismayed at the course of action here.  There was a prebid today for the re-solicitation and at least 10 guys showed up, representing maybe 6 companies.  Winter here so I am sure more companies are looking for projects, therefor the greater turnout than last time.

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The bid opening would have been a public affair, so people may know without the agency ever separately releasing anything.  Hopefully, this time the contracting officer will require a bid bond in addition to performance and payment bonds — a bid bond helps ensure the winner will furnish performance and payment bonds.

The interest from others is good — robust competition is good.  Best wishes!

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Bonding agencies often dont charge anything for a bid bond for regular clients. I hope that the Park Service learned a couple of lessons. 

I’ll note that you also should know what the winning bid was.

EDIT: I missed where you said this was an RFP. In that event, the NPS should not have released your numbers. However, the contract price is supposed to be public knowledge.

Good luck.  

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6 hours ago, PD216ohio said:

but the NPS insisted they wanted to resolicit with the exact same solicitation package. Nothing has changed but the dates.

 

4 hours ago, ji20874 said:

There was no solicitation cancellation. 

It sounded a little like it had been cancelled and resolicited (emphasis added).  You could be right of course, but the OP knows for sure.

2 hours ago, Jacques said:

@apsofacto, a reprocurement contract represents a government purchase against the account of a defaulted contractor.  As such, reprocurement contracts are not subject to statutory and regulatory rules governing competition.

This is true, but I don't think we know if a termination for default actually occurred.  If it had the agency could move on to the second bidder and charge the price delta to the defaulted contractor. 

BTW, when I had to dig into this, I found these things to ponder when going through a reprocurement after default:

  1. The time elapsed since the original competition          

  2. Whether liquidated damages are being charged   

  3. Whether METRO intends to charge reprocurement costs 

  4. The urgency of the defaulted work.

If there are more I'd love to hear it.  I very well may have missed a few. Below is the source material . . .

Maersk Line, Limited, B-410445, B-410445.2: Dec 29, 2014

Aerosonic Corporation, B-232730: Jan 18, 1989

Central Air Services, Inc. , B-208449: Dec 14, 1982

Edited by apsofacto
I have the grammars.

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6 hours ago, PD216ohio said:

I was second best offer on the RFP.

 

47 minutes ago, PD216ohio said:

I will inquire with the NPS about if they released my numbers to anyone. 

If in fact an RFP they should not have released numbers to anyone.  I suggest that you do a concise review of FAR 15.5 to understand what NPS could or might of done with the successful offeror in a debriefing regarding the first contract.   Likewise a concise review so you understand what you can do this time around noting specifically whether you win award or not a debriefing is something you should ask for.   Noting specifically the exact timing requirements regarding debriefings.

50 minutes ago, PD216ohio said:

There was a prebid today for the re-solicitation and at least 10 guys showed up, representing maybe 6 companies. 

 

39 minutes ago, ji20874 said:

 Hopefully, this time the contracting officer will require a bid bond in addition to performance and payment bonds — a bid bond helps ensure the winner will furnish performance and payment bonds.

If in fact no bid bond is being required this time around I, if in your shoes, would inquire as to why not.   Specific reference is FAR 28.101-1 and by my research I see nothing in the Department of Interior Supplement to the FAR (DIAR) or NPS policy regarding a class waiver of a bid bond.  As @joel hoffman has provided the NPS is not saving a dang thing by not requiring a bid bond except the situation they are now in as a bid bond is part of the package of what a bonding company provides to a contractor if they approve them for bonding.

As has been indicated, good luck, with my thoughts offered to help you chart a future path that is not as frustrating as what you have experienced.   A frustration I might add that is coupled with mine when an agency does not do what is necessary to protect the acquisition process pursuant to the guidance and regulation of the FAR.

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Thanks, Carl. I missed the fact that this was an RFP not an IFB.

My recollection of the Successful protest that I can’t find but recently read was that the government executed a deductive modification to the contract after award to delete the bonds, which was found to be an improper relaxing of the contract requirements. 

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7 hours ago, PD216ohio said:

If it matters, the only two bidders were the other company and myself.  Both our bids were under the government estimated magnitude for this construction project.

Full disclosure I was assuming IFB because of this verbiage.  Please disregard if it was in fact an RFP.  Thank you Carl!

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