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Contracting office used my suggested alternative in a rebid without notice or compensation

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I have a situation where I bid a project asking for the replacement of a certain real fixture on government property.  The soliciting office indicated that they would accept alternate solutions.  I analyzed the fixture and presented a comprehensive plan to repair the operational fixture.

The solicitation was cancelled after the bids were submitted.  I was not notified that there was a rebid but did notice the item had been REPAIRED (not replaced) when I was in the area today.  It was repaired in a manner that was very consistent with my analysis and proposal.

Am I potentially due any compensation for producing the analysis and solution for repairing the fixture at a greatly reduced price from replacing it? Do I have any real recourse in this matter?

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Ohio, you mentioned that the solicitation indicated that the government "would accept alternate proposals" . Was Alt 2 to the provision at 52.215-1 included in the solicitation? This paragraph doesn't promise that the government "will accept" alternate proposals in the sense "will accept"  meant "will award". Did you mean that the solicitation indicated that "offerors MAY submit alternate proposals"?

It is possible that your proposed solution was a cardinal change to the solicitation that the government felt might have affected the scope of the competition. That is, perhaps additional or different firms might have responded to a solicitation for repair versus replacement.  For instance, see paragraphs (c), (d) and (e) below:

Quote

15.206   Amending the solicitation.

(a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation. 

(b) Amendments issued before the established time and date for receipt of proposals shall be issued to all parties receiving the solicitation. 

(c) Amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from the competition. 

(d) If a proposal of interest to the Government involves a departure from the stated requirements, the contracting officer shall amend the solicitation, provided this can be done without revealing to the other offerors the alternate solution proposed or any other information that is entitled to protection (see 15.207(b) and 15.306(e)).

(e) If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.

 

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Ohio, please note that, if the government wanted to adopt your solution, Alt.. 2 to 52.215-1 doesn't guarantee that the government would accept your proposal for award. Instead, the government should generally amend the solicition and allow the responding firms to compete for the amended requirement. But if it was a cardinal change to the scope, the government may have had to substantially change the requirements so that it made sense to or was considered necessary to resolicit. 

It is also possible that someone else offered a similar but not exact same solution or other scenario transpired.

Bottom line is that we don't know what the exact terms of the solicitation allowed for alternate proposals. 

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You have two views expressed which leads me to my thoughts.   It sounds like you might be a usual "supplier" to the agency if so you might consider the simple but upfront approach.  It may stand to offend or it might yield some type of positive resolution for you.   In other words contact the CO and ask what happened to the solicitation and ask about the solution they used as it might open the door to further conversation.  Or it might not.  You know the terrain better than us to consider whether my thoughts would be a good idea.

For the future there are ways to protect yourself that might give you leverage.  Possibly place a "copyright all rights reserved" on a proposal or "confidential" on those parts of your proposal you feel fall into a unique idea (trade secret?).   The Freedom of Information Act provides some protections as well.  In the end no matter the effort you take if it is not a "one off" experience on your part and you really want to protect yourself for the future you can find much more detail on the subject by doing an internet search on something like "Protecting the proprietary of your response to an RFP".

 

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4 minutes ago, C Culham said:

You have two views expressed which leads me to my thoughts.   It sounds like you might be a usual "supplier" to the agency if so you might consider the simple but upfront approach.  It may stand to offend or it might yield some type of positive resolution for you.   In other words contact the CO and ask what happened to the solicitation and ask about the solution they used as it might open the door to further conversation.  Or it might not.  You know the terrain better than us to consider whether my thoughts would be a good idea.

For the future there are ways to protect yourself that might give you leverage.  Possibly place a "copyright all rights reserved" on a proposal or "confidential" on those parts of your proposal you feel fall into a unique idea (trade secret?).   The Freedom of Information Act provides some protections as well.  In the end no matter the effort you take if it is not a "one off" experience on your part and you really want to protect yourself for the future you can find much more detail on the subject by doing an internet search on something like "Protecting the proprietary of your response to an RFP".

 

Agree, good advice - thanks, Carl. I should have thought of advising Ohio to ask the KO what happened. 

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Another thought occurred to me- if Ohio had copyrighted or otherwise restricted the government's right to use its proposed solution, it might have been rejected, depending upon the terms of the solicitation allowing alternate proposals (e.g., Alt 2 to 52.215-1).

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15 hours ago, C Culham said:

You have two views expressed which leads me to my thoughts.   It sounds like you might be a usual "supplier" to the agency if so you might consider the simple but upfront approach.  It may stand to offend or it might yield some type of positive resolution for you.   In other words contact the CO and ask what happened to the solicitation and ask about the solution they used as it might open the door to further conversation.  Or it might not.  You know the terrain better than us to consider whether my thoughts would be a good idea.

For the future there are ways to protect yourself that might give you leverage.  Possibly place a "copyright all rights reserved" on a proposal or "confidential" on those parts of your proposal you feel fall into a unique idea (trade secret?).   The Freedom of Information Act provides some protections as well.  In the end no matter the effort you take if it is not a "one off" experience on your part and you really want to protect yourself for the future you can find much more detail on the subject by doing an internet search on something like "Protecting the proprietary of your response to an RFP".

 

Joel,

Thank you (and everyone) for your responses.

You seem to understand the situation exactly.  Others seem to think that I am disgruntled about not being awarded, which is not the case.  I am disgruntled that the government appears to have completely changed the project after realizing I gave them a far better solution.  I feel that they used my work product (bid/offer/proposal) to recreate a solicitation that used a completely new route, based upon my submittal to them.  I am upset that I would put forth such effort, hoping to have offered a best solution... only to have the solution taken and used without my knowledge (or compensation).

The repairs that I saw were completed by the awardee, were almost identical to my proposal of repairs.  Keep in mind that the original solicitation was to replace the system, not repair it.... until I proposed a way to repair it.  They then cancelled the original solicitation (which I bid) sometime after the bids were due.  They apparently reissued an alternate solicitation that called for the repairs I had outlined and suggested.

I did contact them and expressed my concerns, and simply asked them how we can resolve this.  I do have a fairly good relationship with this office (or a couple COs in it) after completing a project for them, rated as excellent on all counts.  They do control an amount of work in my local area.

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On 4/29/2020 at 2:15 PM, ji20874 said:

Were you the low bidder?

No idea since the solicitation was cancelled after bids were received.

I did find out that they rewrote the specs and awarded to a sole source.... and again, let me reiterate, that the new approach followed my analysis and detailed proposal.

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Hmmm, I'm guessing this wasn't a bidding acquisition.  Maybe you submitted a quote instead of a bid?

If you have evidence that the agency improperly used your analysis and detailed proposal for a sole-source purchase from someone else, you might want to contact the agency's Inspector General.

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