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19 minutes ago, C Culham said:

Not spot on yet this GAO Protest case helps support, as has been offered in this thread, that words do make a difference.  Note the decision discussion regarding "Subcontracting Plan" versus ""Small Business Subcontracting Plan".

https://www.gao.gov/products/b-415908#mt=e-report

Carl , this is a good example of possible distinctions between types and purposes of subcontracting plan evaluation factors. In your example, the government wanted to evaluate compliance with limitations on subcontracting and/or the extent of proposed self performance of the work, not necessarily limited to the extent of subcontracting to small businesses.

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22 hours ago, Freyr said:

Another office disagreement/debate we've had recently is regarding whether or not a responsibility issue can be fixed via exchanges if the vendor failed to provide any documentation regarding it. 

Our example: Using FAR Part 15 procedures. Solicitation says vendors must provide financial statements, accounting system audits, and subcontracting plans. Solicitation also says that the Government will review each proposal for compliance with the solicitation and will remove vendors who do not comply with the requirements of the solicitation. Vendor 1 provides only financial statements and accounting system audits but failed to provide any subcontracting plan. Vendors 2 and 3 provide all of the documentation required. 

Is the subcontracting something that we can request Vendor 1 to submit their subcontracting plan after their initial submission without engaging in discussions? We've looked at some cases (like this and this) where vendors failed to provide certain financial statements or accounting system audits and the Agency removed them for non-compliance with the solicitation. The GAO seemed to think in those cases that it didn't need to go to the SBA for a CoC because it wasn't a non-responsibility determination but rather a non-compliance issue. The COFC has of course held that if even if the exchanges had produced changes in a vendor's proposal it would not constitute discussions under FAR 15.306(d) because the exchanges only concerned responsibility. I haven't seen any GAO/COFC cases where an Agency allowed a fully omitted responsibility item to be submitted after the initial submission (maybe I'm just asking a dumb question and it's clearly something that no one would protest or no CO would allow?).

 

Bottom line Question: Can we cure a material omission in the name of responsibility or should the vendor be kicked out during the compliance check?

In re-reading this OP, I noticed that all three of the categories of proposal submission requirements - financial statements, accounting audits and subcontracting plans - are typically the type of information necessary for a  pre-award, responsibility determination.

According to 9.105-1(b) this information would generally be obtained after receipt of offers or (possibly) before issuing the RFP in special circumstances. Requests for information are ordinary limited to a low bidder or those offerors in range for award - not as a proposal submission requirement for evaluating every proposal in response to the RFP for a single award contract. 

Am I missing something here?  Why would this pre-award info comprise the evaluation factors to select the source??

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Joel,

You bring up good points.  In fact, the FAR implies that the successful offeror just needs to furnish an acceptable plan prior to award.  

Quote

19.702 Statutory requirements.

Any contractor receiving a contract with a value greater than the simplified acquisition threshold must agree in the contract that small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns will have the maximum practicable opportunity to participate in contract performance consistent with its efficient performance. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns.

 

       (a)  

(1)  Except as stated in paragraph (b) of this section, section 8(d) of the Small Business Act (15 U.S.C. 637(d)) imposes the following requirements regarding subcontracting with small businesses and small business subcontracting plans:

                 (i)  In negotiated acquisitions, each solicitation of offers to perform a contract that is expected to exceed $700,000 ($1.5 million for construction) and that has subcontracting possibilities, shall require the apparently successful offeror to submit an acceptable subcontracting plan. If the apparently successful offeror fails to negotiate a subcontracting plan acceptable to the contracting officer within the time limit prescribed by the contracting officer, the offeror will be ineligible for award. For a multiple-award contract with more than one North American Industry Classification System (NAICS) code, see paragraph (a)(2)(i) of this section.

And negotiation of a subcontracting plan doesn’t constitute discussions per this GAO cite:

We agree with the protester's premise that where, as here, the quality and completeness of the subcontracting plan was not to be evaluated as part of the evaluation of proposals, the subcontracting plan requirement concerns a matter of responsibility, so that "an agency request for an updated subcontracting plan does not constitute discussions or require that revised proposals be solicited from all offerors." See A. B. Dick Co., B-233142, Jan. 31, 1989, 89-1 CPD para. 106 at 3-4; cf. Computer Sci. Corp. et al., B-298494.2 et al., May 10, 2007, 2007 CPD para. 103 at 10”

http://www.wifcon.com/cgen/401600.pdf

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Yes, we routinely negotiated the small business subcontracting plan independently with the apparent successful offeror(s).

it would be different if we were evaluating the extent of subcontracting to determine the required self performed work requirements. But the standard small business subcontracting plan - to me - isn’t a real discriminator for most source selections.

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Where, as here, an offeror is required by the solicitation to submit a small business subcontracting plan, and fails to do so, and is still considered for award, then the contracting officer is teaching the contractor that corners may be cut without consequences. I wonder what other corners will be cut, post-award?

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3 hours ago, here_2_help said:

Where, as here, an offeror is required by the solicitation to submit a small business subcontracting plan, and fails to do so, and is still considered for award, then the contracting officer is teaching the contractor that corners may be cut without consequences. I wonder what other corners will be cut, post-award?

H2H, this is supposedly a hypothetical situation.  I think that Freyr understands now that the government shouldn’t paint themselves into a corner definitively by stating that a firm “will be” removed for this type action.

But I’m not sure that Freyr is aware that two of the three identified proposal submission requirements are for responsibility criteria that should be requested of a firm that is an otherwise apparent successful proposer and that a small business subcontracting plan probably isn’t much of a discriminator. I don’t know if they are referring to a small business subcontracting plan or to something identifying the type and extent of subcontracting in order to evaluate the type and extent of self-performed work - which may well be a discriminator where contractually required minimums are established. 

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31 minutes ago, joel hoffman said:

H2H, this is supposedly a hypothetical situation.  I think that Freyr understands now that the government shouldn’t paint themselves into a corner definitively by stating that a firm “will be” removed for this type action.

But I’m not sure that Freyr is aware that two of the three identified proposal submission requirements are for responsibility criteria that should be requested of a firm that is an otherwise apparent successful proposer and that a small business subcontracting plan probably isn’t much of a discriminator. I don’t know if they are referring to a small business subcontracting plan or to something identifying the type and extent of subcontracting in order to evaluate the type and extent of self-performed work - which may well be a discriminator where contractually required minimums are established. 

Definitely understanding not to paint ourselves into a corner! For those proposal submission items I identified, our office's RFPs typically include them as requirements for their initial proposal submission (I'm assuming so we don't need to ask for them after a technical evaluation? Not sure.). For clarification, I have been referring to SB subcontracting plans, I apologize for not making that more clear. 

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2 hours ago, joel hoffman said:

H2H, this is supposedly a hypothetical situation. 

Understood. Please accept my post as a hypothetical comment.

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15 hours ago, Freyr said:

Definitely understanding not to paint ourselves into a corner! For those proposal submission items I identified, our office's RFPs typically include them as requirements for their initial proposal submission (I'm assuming so we don't need to ask for them after a technical evaluation? Not sure.). For clarification, I have been referring to SB subcontracting plans, I apologize for not making that more clear. 

Freyr, all three of those categories are responsibility criteria. I don’t understand why you would competitively evaluate them. Especially if you’re trying to use comparative ratings with the evaluation criteria. Are those the only factors that you typically use?

Financial capability and audited accounting systems are not really suitable as discriminators between proposals. Small business subcontracting plan must be acceptable to the government but I personally don’t think that it’s worth the effort to compare between proposals, thus is usually acceptable or unacceptable. If those are the only factors that you are using why don’t you just go with a bid? Or for simplified acquisition’s just go with price only and obtain the information you need for responsibility determination from the apparent winner

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On 4/9/2020 at 4:59 PM, joel hoffman said:

Freyr, all three of those categories are responsibility criteria. I don’t understand why you would competitively evaluate them. Especially if you’re trying to use comparative ratings with the evaluation criteria. Are those the only factors that you typically use?

Financial capability and audited accounting systems are not really suitable as discriminators between proposals. Small business subcontracting plan must be acceptable to the government but I personally don’t think that it’s worth the effort to compare between proposals, thus is usually acceptable or unacceptable. If those are the only factors that you are using why don’t you just go with a bid? Or for simplified acquisition’s just go with price only and obtain the information you need for responsibility determination from the apparent winner

Those are the only responsibility type criteria we typically include in our full and open competitions along with whatever other technical and price evaluation criteria are necessary (we normally do not use LPTA and most requirements are above the SAT/non-commercial). So we're not actually using any of those three to discriminate between proposals. 

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It is not necessary to include text in your solicitation to indicate what responsibility criteria you will apply to the otherwise successful offeror (except for special standards under FAR 9.104-2, which does not seem to be applicable here).  Maybe you should stop doing it.  

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2 hours ago, Freyr said:

Those are the only responsibility type criteria we typically include in our full and open competitions along with whatever other technical and price evaluation criteria are necessary (we normally do not use LPTA and most requirements are above the SAT/non-commercial). So we're not actually using any of those three to discriminate between proposals. 

 

43 minutes ago, ji20874 said:

It is not necessary to include text in your solicitation to indicate what responsibility criteria you will apply to the otherwise successful offeror (except for special standards under FAR 9.104-2, which does not seem to be applicable here).  Maybe you should stop doing it.  

Another thing to consider is that, when performing responsibility determination, you should be using the latest information available at the time of award. If it takes several weeks a month or two months etc. to evaluate and award, the information that you demanded in their initial proposal May already be outdated or otherwise non-current.

That is on top of the other facts that 1). you’re routinely asking everyone for information that generally only would be applicable to the otherwise successful offeror or proposer, 2) the government appears to be evaluating this information in every proposal not just the apparent winner*,  3) you might be asking for small business subcontracting plans from firms not required to submit them and 4) your pro-forma language boxes you in, as discussed earlier.

*A general rule of thumb is not to ask every proposer for information if you are only going to evaluate and consider the info provided by the apparent winner. Unnecessarily exercising and costing industry time, resources and money.

As a beginner, hopefully there is plenty of food for thought so far.

Good luck and stay healthy! 

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Disclosure - I used to include the The small business subcontracting plan as a separate go/no go factor. I reconsidered after realizing that it was unnecessary for the reasons explained above!

We were doing it to theoretically streamline timeline for the overall valuation and award. However we found out that we could ask for it after the initial evaluations and trade off decisions, during other pre-award activities in parallel.

So, I apologize if I sounded sanctimonious.

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1 hour ago, ji20874 said:

It is not necessary to include text in your solicitation to indicate what responsibility criteria you will apply to the otherwise successful offeror (except for special standards under FAR 9.104-2, which does not seem to be applicable here).  Maybe you should stop doing it.  

 

3 hours ago, Freyr said:

we typically include in our full and open competitions

Hmmmm. @Freyr as this thread and the information unfolds you might considering offering additional facts as to the reason "we" ask for the information.  Office, agency or other overriding policy?   Because it has always been done that way?   Or, possibly "you" and your office just developed a standard that you think is appropriate?  Doing so might help us all understand why, beyond the small business plan, that responsibility like information is being asked for in the solicitation.

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5 minutes ago, C Culham said:

 

Hmmmm. @Freyr as this thread and the information unfolds you might considering offering additional facts as to the reason "we" ask for the information.  Office, agency or other overriding policy?   Because it has always been done that way?   Or, possibly "you" and your office just developed a standard that you think is appropriate?  Doing so might help us all understand why, beyond the small business plan, that responsibility like information is being asked for in the solicitation.

It was they way we did it when I started at this office and no one's thought to question it, I try to question whatever doesn't make sense to me but this one flew right over my head. My assumption, or what I figure people would say in hindsight to make sense of it, is that it's to get all the information up front so you don't need to ask for it later (like Joel mentioned, streamline the evaluation timeline). Looking at it now, it doesn't seem to streamline much and could potentially cause other issues and make things take even long (or even still have to ask for updated information regardless).  

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22 hours ago, Freyr said:

It was they way we did it when I started at this office

Thanks.  It is good you are questioning.  My additional thought is I wonder how long the process used has been around.   While not the sole determining resource it would seem that with CPARS, which evaluates factors very similar to those used in responsibility is a tool that might help in the streamlining effort.  A tool for leveling what a contractor might say in a proposal.

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A more basic question is why does your office even need financial statements and audited accounting system approvals?  Do you do anything with them?  More people, government and business, just rely on online sources to determine financial well being of companies.  Just a statement from offerors that their accounting system is approved is that appears in most solicitations.  We’ve already talked about subcontracting plans.

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