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???Amendment to Close Discussion???


ipod24

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Greetings All,

Okay I have this sort of awkward situation. My KO has informed me that I need to issue one final amendment to notify the public that discussion have been concluded. Yes, my requirement had to go into discussions/negotiation, revised proposals were sent (only had to do this once), and once all procedures were completed and finalized we have determine who the apparent awardee will be. Anyways, my questions was in regards to issuing an amendment for the purpose of notification that discussion have been concluded. I have not seen anything in the FAR, DFARS, PGI, other that states this procedure otherwise. My office argues that not doing so would lead to a potential protest from a contractor who was not notified that discussion had ended. Also, it seem that in the past, a protest was sustained (can't find the GAO case) because the organization failed to sent this notification out. Is this a substantial action? If so can you please give me references?

:huh:

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The FAR just says in 15.307(:huh: that "The contracting officer is required to establish a common cut-off date only for receipt of final proposal revisions." You could do this by an amendment but a better practice is sending an email (and confirmed by letter) that discussions are concluded and offerors must submit an proposal revisions by the cutoff date. You also can highlight the points reached during the discussions which of course, is tailored towwards each offeror.

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Guest Vern Edwards

Your contracting officer is wrong. He/she is actually worse than that, but I don't want to use the word.

FAR 15.206(a) says when a solicitation must be amended, and that does not include notifying the public that discussions are over. Moreover, FAR 15.307 says nothing about notifying "the public" that discussions have been concluded. The only people that have to be notified are the offerors from whom final proposal revisions will be sought. You can tell them by phone or email.

It is this kind of needless work requirement that makes the 1102 community feel overworked.

Stupid. Stupid. Stupid. Oops! I just used the word.

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Greetings All,

Okay I have this sort of awkward situation. My KO has informed me that I need to issue one final amendment to notify the public that discussion have been concluded. Yes, my requirement had to go into discussions/negotiation, revised proposals were sent (only had to do this once), and once all procedures were completed and finalized we have determine who the apparent awardee will be. Anyways, my questions was in regards to issuing an amendment for the purpose of notification that discussion have been concluded. I have not seen anything in the FAR, DFARS, PGI, other that states this procedure otherwise. My office argues that not doing so would lead to a potential protest from a contractor who was not notified that discussion had ended. Also, it seem that in the past, a protest was sustained (can't find the GAO case) because the organization failed to sent this notification out. Is this a substantial action? If so can you please give me references?

:huh:

I am concerned that it sounds like you may have determined who the awardee will be, without having gone through the FAR 15.307(B) process, a brief snippet of which was quoted by formerfed. The whole paragraph says:

"The contracting officer may request or allow proposal revisions to clarify and document understandings reached during negotiations. At the conclusion of discussions, each offeror still in the competitive range shall be given an opportunity to submit a final proposal revision. The contracting officer is required to establish a common cut-off date only for receipt of final proposal revisions. Requests for final proposal revisions shall advise offerors that the final proposal revisions shall be in writing and that the Government intends to make award without obtaining further revisions.

If you (1) gave each offeror in the competitive range an opportunity to submit a "final proposal revision," (2) established a common cut-off date only for receipt of final proposal revisions and (3) advised offerors that the final proposal revisions were to be in writing and that the Government intended to make award without obtaining further revisions, then you're in fine shape, and no solicitation amendment is required or appropriate. If you didn't do all three of those things, you may be vulnerable.

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Greetings All,

Okay I have this sort of awkward situation. My KO has informed me that I need to issue one final amendment to notify the public that discussion have been concluded. Yes, my requirement had to go into discussions/negotiation, revised proposals were sent (only had to do this once), and once all procedures were completed and finalized we have determine who the apparent awardee will be. Anyways, my questions was in regards to issuing an amendment for the purpose of notification that discussion have been concluded. I have not seen anything in the FAR, DFARS, PGI, other that states this procedure otherwise. My office argues that not doing so would lead to a potential protest from a contractor who was not notified that discussion had ended. Also, it seem that in the past, a protest was sustained (can't find the GAO case) because the organization failed to sent this notification out. Is this a substantial action? If so can you please give me references?

:huh:

Did your KO actually say that you "have to inform the public that discussions have been included"? You indicated later that your office argues "that not doing so would lead to a potential protest from a contractor who was not notified that discussion had ended." How does that involve "notifying the public"? Are you sure that they aren't talking about issuing the notice via an amendment to only those still in the competitive range?

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Did your KO actually say that you "have to inform the public that discussions have been included"? You indicated later that your office argues "that not doing so would lead to a potential protest from a contractor who was not notified that discussion had ended." How does that involve "notifying the public"? Are you sure that they aren't talking about issuing the notice via an amendment to only those still in the competitive range?

Addressing your concern, the reason I used the word "public" is because if I did issue an amendment it'll have to go to the GPE which is FEDBIZOpps - thus, public view.

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I am concerned that it sounds like you may have determined who the awardee will be, without having gone through the FAR 15.307(:huh: process, a brief snippet of which was quoted by formerfed. The whole paragraph says:

If you (1) gave each offeror in the competitive range an opportunity to submit a "final proposal revision," (2) established a common cut-off date only for receipt of final proposal revisions and (3) advised offerors that the final proposal revisions were to be in writing and that the Government intended to make award without obtaining further revisions, then you're in fine shape, and no solicitation amendment is required or appropriate. If you didn't do all three of those things, you may be vulnerable.

I will consider this excellent response....

Let me give you a better description regarding my situation without going in depth. I received three proposals once the solicitation closed -- all offereors were either above or substantially below the IGE/IGCE. I had addressed the specific deficiencies with their pricing, along with other in formations. Thus, we ultimately went into discussions , and gave all contractors who participated the opportunity to revise their proposals and bid schedules (I know some of you may have done a different approach). The revised proposals came in; the contractors were technically acceptable, past performance was rated low risk; however, the price was the determining factor. Two were still high the other was within reasonable range, 15% of the IGE/IGCE and from there we made our decision...

In my opinion, I see no point in issuing an amendment which will be posted in FEDBIZOpps notifying the other contractors that discussions have ended. I may have not used the term "final" revision when I went into discussions and had allowed them to resubmit a revised proposal. But after that process -- pricing ultimately led to the two contractors not getting the award.

Now, going with your first statement: (1) gave each offeror in the competitive range an opportunity to submit a "final proposal revision", does this mean I should have given a FINAL opportunity for all contractors to resubmit a Final Revised Proposal? Doing so, in my opinion, seems like a waste of time. (1). There really is no other factor I can address to the two offerors to have then revise their proposal. Yes, I can point out that one CLIN is still this high the other is still this low blah blah blah, but that?s it. Obviously, after addressing my concerns and them having to resubmit a revise proposal ? still coming up high would lead me to believe that they do not understand the Governments requirements.

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Guest Vern Edwards

The question asked was:

gave each offeror in the competitive range an opportunity to submit a "final proposal revision", does this mean I should have given a FINAL opportunity for all contractors to resubmit a Final Revised Proposal?

Answer: See FAR 15.307:

15.307 Proposal revisions.

(a) If an offeror?s proposal is eliminated or otherwise removed from the competitive range, no further revisions to that offeror?s proposal shall be accepted or considered.

(B) The contracting officer may request or allow proposal revisions to clarify and document understandings reached during negotiations. At the conclusion of discussions, each offeror still in the competitive range shall be given an opportunity to submit a final proposal revision. The contracting officer is required to establish a common cut-off date only for receipt of final proposal revisions. Requests for final proposal revisions shall advise offerors that the final proposal revisions shall be in writing and that the Government intends to make award without obtaining further revisions.

If FAR 15.307 is clear to you, then you have your answer.

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Addressing your concern, the reason I used the word "public" is because if I did issue an amendment it'll have to go to the GPE which is FEDBIZOpps - thus, public view.

I'm not up to date on the relevant regulatory requirement, but I CAN tell you how the Army's ECC is handling Amendments after the close of the bid acceptance period.

Everyone who is still in the Competitive Range gets the Amendments by email. I have received 2 that way in the past month. They never appeared on asfi or FBO.

.

In response to your comment elsewhere that the two bidders whose prices were still higher that the Government Estimate, even after Discussions: you concluded that they didn't understand the requirement.

It may be nit-picking, but what they didn't understand was really the Government's expectations regarding price. They wouldn't have been kept in the Competitive Range if they didn't understand the requirement, would they ?

.

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I will consider this excellent response....

Let me give you a better description regarding my situation without going in depth. I received three proposals once the solicitation closed -- all offereors were either above or substantially below the IGE/IGCE. I had addressed the specific deficiencies with their pricing, along with other in formations. Thus, we ultimately went into discussions , and gave all contractors who participated the opportunity to revise their proposals and bid schedules (I know some of you may have done a different approach). The revised proposals came in; the contractors were technically acceptable, past performance was rated low risk; however, the price was the determining factor. Two were still high the other was within reasonable range, 15% of the IGE/IGCE and from there we made our decision...

In my opinion, I see no point in issuing an amendment which will be posted in FEDBIZOpps notifying the other contractors that discussions have ended. I may have not used the term "final" revision when I went into discussions and had allowed them to resubmit a revised proposal. But after that process -- pricing ultimately led to the two contractors not getting the award.

Now, going with your first statement: (1) gave each offeror in the competitive range an opportunity to submit a "final proposal revision", does this mean I should have given a FINAL opportunity for all contractors to resubmit a Final Revised Proposal? Doing so, in my opinion, seems like a waste of time. (1). There really is no other factor I can address to the two offerors to have then revise their proposal. Yes, I can point out that one CLIN is still this high the other is still this low blah blah blah, but that?s it. Obviously, after addressing my concerns and them having to resubmit a revise proposal ? still coming up high would lead me to believe that they do not understand the Governments requirements.

(1) Yes, "final proposal revision" means "FINAL proposal revision." It may seem from your perspective to be a waste of time, but bidders in discussions know that at some point, you'll be requesting their "final proposal revision," and some will wait until that point to make their really, really best offer. The argument goes, you told us our price was too high, and we've been working hard scrubbing our bid down to the bone. We wanted all the time we could have to make sure we gave you the best price, so we were waiting for our final proposal revision to make sure we got it as low as we could.

(2) When it comes time to request final proposal revisions, you don't need to address other factors, or even to reiterate factors/concerns you've already mentioned. You only need to advise them that discussions are complete, and request they submit their "final proposal revision" by a specified cutoff date and time.

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I will consider this excellent response....

Let me give you a better description regarding my situation without going in depth. I received three proposals once the solicitation closed -- all offereors were either above or substantially below the IGE/IGCE. I had addressed the specific deficiencies with their pricing, along with other in formations. Thus, we ultimately went into discussions , and gave all contractors who participated the opportunity to revise their proposals and bid schedules (I know some of you may have done a different approach). The revised proposals came in; the contractors were technically acceptable, past performance was rated low risk; however, the price was the determining factor. Two were still high the other was within reasonable range, 15% of the IGE/IGCE and from there we made our decision...

In my opinion, I see no point in issuing an amendment which will be posted in FEDBIZOpps notifying the other contractors that discussions have ended. I may have not used the term "final" revision when I went into discussions and had allowed them to resubmit a revised proposal. But after that process -- pricing ultimately led to the two contractors not getting the award.

Now, going with your first statement: (1) gave each offeror in the competitive range an opportunity to submit a "final proposal revision", does this mean I should have given a FINAL opportunity for all contractors to resubmit a Final Revised Proposal? Doing so, in my opinion, seems like a waste of time. (1). There really is no other factor I can address to the two offerors to have then revise their proposal. Yes, I can point out that one CLIN is still this high the other is still this low blah blah blah, but that?s it. Obviously, after addressing my concerns and them having to resubmit a revise proposal ? still coming up high would lead me to believe that they do not understand the Governments requirements.

You don't issue an amendment after receipt of proposals "which will be posted in FEDBIZOpps notifying the other contractors that discussions have ended." You send amendments only to those firms still in the competition.

FAR 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.

© 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."

Then, upon completion of discussions, you establish a common cut-off date and time for those still in the competitive range and ask for their final written proposal revisions (FAR 15.307 (B)). You could do this in an amendment or by correspondence.

It is hard to tell how you closed discussions and if you selected the winner before the KO told you to issue an amendment asking for final proposal revisions.

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Guest Vern Edwards

You don't amend a solicitation to notify offerors that discussions are closed and to submit final proposal revisions. Period. You send them a letter or an email.

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You don't amend a solicitation to notify offerors that discussions are closed and to submit final proposal revisions. Period. You send them a letter or an email.

It may not be the proper or best technique, but I saw it being done for years.

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Guest Vern Edwards

Okay, so you watched people doing something stupid for years. So what? Let's not let people leave here thinking that it's the right thing to do.

Do you amend the solicitation to establish a competitive range or to start discussions? Hopefully not, since such events do not change the government's requirements. See FAR 15.206(a). So why amend the solicitation to end discussions and ask for FPRs? FAR 15.307(B) doesn't even say that the notification or request must be in writing. Amendments generally require more work than sending a letter or email and placing a copy in the file. It's needless work. And everybody complains about how overworked they are.

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Okay, so you watched people doing something stupid for years. So what? Let's not let people leave here thinking that it's the right thing to do.

Do you amend the solicitation to establish a competitive range or to start discussions? Hopefully not, since such events do not change the government's requirements. See FAR 15.206(a). So why amend the solicitation to end discussions and ask for FPRs? FAR 15.307(B) doesn't even say that the notification or request must be in writing. Amendments generally require more work than sending a letter or email and documenting the file. It's needless work. And everybody complains about how busy they are.

Actually, prior to the availability and widespread use of e-mail, issuing the request for Best and Final Offers via Amendment by faxed SF 30, was very simple - much simpler than typing separate letters to each firm. The SF 30 provided a formal, written, consistent means to document the common cut-off date, time, and place for final proposal submission. The form contained all the information necessary for a request for BAFO. Even I could type one or fill one out electronically. Then it was a simple matter to walk over to Contracting and get the KO to sign it. No custom typed letter was necessary. In the age of FAX, you'd use the same piece of paper with only a separate FAX cover sheet, filled out bu hand.

In addition,we also included the final, amended terms and conditions of the solicitation (just the amended items, not the whole RFP). It was often necessary to amend the solicitation after conclusion of discussions . Discussions in construction and design-build RFP's commonly resulted in finding ways to improve the RFP and/or to lower costs.

Thus, the amendment served both purposes and formalized the request with the KO's signature, so that the proposers knew that it wasn't just Joe Blow requesting the final offer.

Of course, Facsimiles are now considered Stone Age communications. Now days, unless there is a need to amend the actual RFP terms and conditions, I'd agree that a separate email to each firm requesting their final proposal revisions is pretty simple and extremely fast.

However, it would still be necessary to attach an SF 30, when the RFP is amended. So, do you include the information twice - in the email and in the attached SF 30?

As for an oral request for final proposal revisions, I'd personally steer away from the practice, unless I followed up in writing. The final cut-off date for final proposal revisions is still a formal requirement. A written communication provides the clear record of what was said and what was requested.

And regarding Contracting Officers' productive use of time, they shouldn't be performing unnecessary clerical work anyway. Let someone else do that and get the KO to sign-off on it. If I was a proposer on a multi-million dollar RFP that had cost me upwards of a hundred thousand dollars to propose on, I'd like to know that a person in charge of the solicitation had seen and signed off on the final request for proposals. An email from a staffer doesn't bolster my confidence but an email with a signed SF 30 would seem to provide some assurance that the KO had some kind of supervisory control over or at least had reviewed the process. But if the KO has to personally compose and send emails, that seems to be a waste of their time and my tax money.

I think it is a matter of perspective. SF 30's served the purpose well back in the day before emails, were simpler than typing letters, involved minimal clerical time of the otherwise busy KO's and were needed anyway, when the request included amended terms and conditions.

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Guest Vern Edwards

A CO must issue an amendment under SF 30 when changing the government's requirements. He or she should not issue an amendment when notifying offerors in the competitive range that discussions are ended and that final proposal revisions are being requested. You don't seem to want to concede that point, which is backed up by FAR.

If, in the good old days, when asking for BAFOs, an agency also changed contract terms, then amending the RFP was the right thing to do, and it doesn't bother me that agencies sent the required notice and request for BAFOs in the same document, although it could get lost in there if the changes were extensive. However, you are trying to generalize about the use of SF 30 beyond your personal knowledge or experience. The fact is that you don't know how widespread the practice was. You only know what they did where you worked. And by the way -- COs are not required to sign solicitation amendments issued under SF 30. See the back of SF 30, paragraph (i).

Why should anybody care how you did things back in the day? What light does your little history cast on the present problem? In the present, issuing an amendment can be very time consuming, what with the new information technology systems. That is what bothers me. Why do something that you're not supposed to do and don't have to do and that takes more time to do when there is a faster, simpler way? And why, given the fact that offerors can submit bids and proposals by email, can't or shouldn't a CO send a notification and solicitation letter by email? He or she can always ask for confirmation by response.

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A CO must issue an amendment under SF 30 when changing the government's requirements. He or she should not issue an amendment when notifying offerors in the competitive range that discussions are ended and that final proposal revisions are being requested. You don't seem to want to concede that point, which is backed up by FAR.

If, in the good old days, when asking for BAFOs, an agency also changed contract terms, then amending the RFP was the right thing to do, and it doesn't bother me that agencies sent the required notice and request for BAFOs in the same document, although it could get lost in there if the changes were extensive. However, you are trying to generalize about the use of SF 30 beyond your personal knowledge or experience. The fact is that you don't know how widespread the practice was. You only know what they did where you worked. And by the way -- COs are not required to sign solicitation amendments issued under SF 30. See the back of SF 30, paragraph (i).

Why should anybody care how you did things back in the day? What light does your little history cast on the present problem? In the present, issuing an amendment can be very time consuming, what with the new information technology systems. That is what bothers me. Why do something that you're not supposed to do and don't have to do and that takes more time to do when there is a faster, simpler way? And why, given the fact that offerors can submit bids and proposals by email, can't or shouldn't a CO send a notification and solicitation letter by email? He or she can always ask for confirmation by response.

Changing the contract terms when asking for a final proposal revision isnt just limited to the "good old days". It is still a done these days when productive discussions reveal the need or advantage to do so. With the simplicity of email, one could attach the amended RFP requirements, if any, in email messages to each firm that is still in the competitive range, when requesting the final proposal revisions. If an office wants to be more formal and make additional work, they can also compose and attach the request for the FPR in letter form to the email. That is a clerical perogative that is up to their organization to decide. If it isn't obvious though, don't include multiple competing firms' email addresses in any email correspondence. Send individual emails to each firm.

Of more concern to me here is, from ipod 24's posts that he/she seemed to not understand the discussion PROCESS and seemed not to know that you dont just allow a proposal revision after conducting individual discussions with firms, then select a winner from those revisions. Yes, the KO may allow or request proposal revisions to clarify and document understandings reached during negotiations. Rather than simply quoting FAR and declaring that an answer, several folks pointed out that it is also necessary to formally close discussions, allow each firm still in the competitve range the opportunity to submit a final proposal revision. You must establish a COMMON cutoff date for receipt of final, written proposal revisions.

Irrespective of the method used to request FPR, ipod24 should now know a basic difference between amendments before and after receipt of proposals is who they go to.

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Guest Vern Edwards

The only issue raised by ipod24 was notification of the conclusion of discussions and call for FPRs. He/she wanted to know if it was necessary to issue an amendment in order to provide the notice and issue the call. The answer to that is unequivocally NO. He didn't say anything about changing requirements.

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  • 2 years later...

Can a request for Final Proposal Revision in a competitive procurement dictate to the bidder that changes are strictly limited to areas that were discussed, and further, that since price issues were not discussed, that the bidder cannot revise prices? Is this permissible, and what would happen if the bidder ignored this prohibition and revised their price in the FPR?

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The only issue raised by ipod24 was notification of the conclusion of discussions and call for FPRs. He/she wanted to know if it was necessary to issue an amendment in order to provide the notice and issue the call. The answer to that is unequivocally NO. He didn't say anything about changing requirements.

Well, the GAO and the COFC have different views on the need for a FPR in some cases, regardless of whether or not it was requested via amendment.

See the GAO decision OMNIPLEX World Services Corporation, B-406251, B-406251.2, Mar 14, 2012 (http://www.gao.gov/p...6251,B-406251.2)

Quote

OMNI argues that the agency’s failure to request final proposal revisions rendered the awards improper under Federal Acquisition Regulation (FAR) § 15.307( b ). This section provides that

. . . [a]t the conclusion of discussions, each offeror still in the competitive range shall be given an opportunity to submit a final proposal revision. The contracting officer is required to establish a common cut-off date only for receipt of final proposal revisions. Requests for final proposal revisions shall advise offerors that the final proposal revisions shall be in writing and that the Government intends to make award without obtaining further revisions.

OMNI asserts that OPM’s July 8 request failed to expressly inform offerors that discussions were concluded and that firms were being given a final opportunity to revise their proposals. OMNI further claims that it “could and would have reduced our pricing substantially had we gotten that expected opportunity to submit a final proposal revision.” Protester’s Comments, Second Declaration of Director of Contracts for OMNI, at 3.

Our Office has repeatedly held that, where an amendment to a solicitation does not specifically request offerors to submit best and final offers (or final proposals revisions), language giving notice to all offerors of a common cutoff date for receipt of offers has the intent and effect of a request for best and final offerors (or final proposal revisions). Aerospace Design, Inc., B-247938, July 21, 1992, 92-2 CPD ¶ 33 at 6; Israel Aircraft Indus., Ltd., B-239211, July 30, 1990, 90-2 CPD ¶ 84 at 4; James R. Parks Co., B-186031, June 16, 1976, 76-1 CPD ¶ 384 at 5. The underlying purpose of the requirement for a common cutoff date is to ensure that all offerors are being treated fairly and on an equal basis. See Raytheon Tech. Servs. Co. LLC, B-404655.4 et al., Oct. 11, 2011, 2011 CPD ¶ 236 at 6; Telos Field Eng’g, B-253492.2, Nov. 16, 1993, 93-2 CPD ¶ 275 at 5.

Here, offerors were informed, on July 8, that the firms should provide a “formal proposal revision,” which would become part of any subsequent contract, no later than “3:00 PM on July 21, 2011.” AR, Tab D-4, at 1. The agency then subsequently informed all offerors that it was extending “the receipt date for proposal revisions to 2:30 PM Monday July 25, 2011.” AR, Tab D-5. This language clearly constituted notice to all offerors of a common cutoff date for receipt of revised offers. Given this, we find the agency’s actions were proper.

Unquote

This GAO decision is contradicted by a judge on the COFC. See http://www.uscfc.uscourts.gov/sites/default/files/Dubinskr.pdf . See pages 18 thru 21 and footnotes 50 and 52 for a discussion of FAR 15.307( b ) takes place.

To be safe, I would request the FPR, but I would not issue an amendment.

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Guest Vern Edwards

Can a request for Final Proposal Revision in a competitive procurement dictate to the bidder that changes are strictly limited to areas that were discussed, and further, that since price issues were not discussed, that the bidder cannot revise prices? Is this permissible, and what would happen if the bidder ignored this prohibition and revised their price in the FPR?

See Feldman, Government Contract Awards: Negotiation and Sealed Bidding (2012), Sec. 17:2:

When the agency solicits FPRs, the better reasoned cases hold that the offerors have knowledge as a matter of law that they may revise their offers in any way desired, including price revisions. Although the GAO has indicated in some decisions (mostly in the reprocurement after default context) that an exception exists to this rule when the agency issues contrary instructions in the request, these cases are questionable. In other decisions, the GAO has said that even when the agency requests that offerors not change their proposals, the offeror still has a right to make any technical or price revisions it desires. The GAO has said: “[T]he opportunity to revise all aspects of a proposal is generally viewed as a basic tenet of negotiated procurement.” Furthermore, FAR 15.306(d) and FAR 15.307(B) necessarily imply that the offerors may submit any technical or price revisions they desire that might result from the discussions; bargaining and the other elements of give and take characteristic of commercial procurements are strongly encouraged by the regulations. Indeed, offerors have this right even if the agency does not mention this possibility during discussions.Therefore, the better rule is that regardless of an agency directive or request, offerors have the unrestricted right to revise their proposals in their revisions.

Footnotes with citations omitted.

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