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Rodolfo

meaningful discussions under simplified acquisition procedures

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FIRST ?HAPPY THANKSGIVING? TO ALL YOU.

I am writing from Italy since we are considering to file a protest to the GAO for the reason outlined here below. Since we only have 9 days left, if any of you could provide a quick comment it will be much appreciated. I have to say that I have been helped a lot by reading some articles posted in this forum. Sorry for the lengthy of this topic but I had to provide you with all the facts.

A medical agency has issued a Request for Quotation for non-personal custodial services for base year plus four option years using the simplified acquisition procedures. The estimated amount of the resulting contract will be over the simplified acquisition threshold ($150,000). The quotation contains FAR provision 52.212-1 Instructions to Offerors--Commercial Items and FAR provision 52.212-2 Evaluation - Commercial Items.

FAR provision 52.212-1 Instructions to Offerors--Commercial Items contains the following addendum (I quote only the portion of text that is relevant to this case):

Paragraph (h) ?Multiple awards?. The following is added:

The Government intends to issue a single order without discussions, based on initial quotes, to only one quoter as a result of this RFQ.

FAR provision 52.212-2 Evaluation - Commercial Items contained the following addendum (I quote only the portion of text that is relevant to this case)

?a) The Government will issue an order resulting from this Request for Quotation (RFQ) to the responsible quoter whose quote conforming to the RFQ will be most advantageous to the Government, price and other factors considered. The Government will select the best overall quote based upon an integrated assessment of technical, past performance, and price factors, and whose quote conforms to the RFQ requirements to include all stated terms, conditions, representations, certifications required of this RFQ. Quotes will be evaluated using FAR Part 13.106-2procedures. The technical and past performance factors, when combined, are significantly more important than price, although price may become the deciding factor when determining the best overall value. Tradeoffs will be made to consider award to other than the lowest priced quote, other than the highest technically rated quote or to a higher rated, higher price quote. The technical factor and past performance factor are considered equal in importance. If any single technical subfactor is rated ?Unsatisfactory? or ?Marginal?, then the quoter will no longer be considered to receive an order. If either the technical factor or past performance factor is rated ?Marginal? or ?Unsatisfactory?, then the quoter will no longer be considered to receive an order. An order will be issued to the quoter whose quote represents the best overall value to the Government. The following factors shall be used to evaluate quotes:

Factor I - Technical

Subfactor (1) Approach, Subfactor (2) Resources, Subfactor (3) Contract Manager, Subfactor (4) Subcontracting

Factor II - Past Performance

Factor III - Price.

On 16 November 2010 we received via e-mail the following letter (VERBATIM), signed by the Contracting Officer on 15 November 2010. I am going to omit the six findings for space reason and the POC name for privacy reasons:

"The Government has evaluated Co.Lo.Coop Searl's quote submitted in response to the solicitation cited above based on the requirement and the evaluation factors set forth in the solicitation. This letter constitutes Co.Lo.Coop Searl's opportunity to revise its quote by addressing apparent deficiencies, weaknesses, and/or adverse past performance information stated below. Co.Lo.Coop Searl may address aspects of its quote that could be altered or explained to enhance materially the quote's potential for award. Based on the deficiencies, weaknesses, and/or adverse past performance findings outlined herein, Co.Lo.Coop Searl may submit a final quote revision.

Government findings????????????????

Please provide your written response by 1300 CET, Wednesday, 17 Nov 2010. Any changes made to your quote should be highlighted to enhance visibility. Ensure that the changes made to the technical quote are reflected in the price quote. In other words, if the number of personnel is increased, or decreased, or if there is a change in the technical approach, then the price quote should be updated to reflect these changes. Should you have any questions, you may contact???????..."

It should be noted that no adverse past performance findings were outlined in the letter received.

By the due in date for the revision (17 November 2010), we timely submitted a revised price proposal and we addressed all the six deficiencies, weaknesses noted (half of them were misunderstandings on the part of the Government).

On 18 November 2010 around 8:30 am our company was contacted telephonically by the Government?s POC for this acquisition. She needed further clarifications about two of the six issues addressed in the letter we received on 16 November 2010. She asked to provide written clarifications as soon as possible because they were to come within an award. To the question ?are we in the competitive range because otherwise it would be a waste of time for us? the answer was ?certainly, you are?. By 1 pm of the same date we provided the required clarifications.

On 24 November 2010 we received the following letter (VERBATIM):

?Reference: Solicitation Number W9114F-I 0-T-0113, Custodial Services Contract - Vicenza

(CSC-V)

Dear Mr. Valerio:

Pursuant to the procedures prescribed at FAR Part 13.106-2, as implemented by request for quotation (RFQ) provision 52.2 12-2, the Government has completed its evaluation of the quote submitted in response to the subject RFQ. We regret to inform you that, after careful evaluation against the factors established in the RFQ, your technical quote was rated "Unsatisfactory" and your past performance was rated "Marginal". The evaluation identified six distinctive deficiencies in your technical quote. Specific deficiencies under the technical subfactors were: (1) lack of understanding of the technical requirements associated to cleaning and disinfecting surgical areas, (2) failure to specify which employees will be fully dedicated to the contract and which will be employed on a part-time basis, (3) lack of understanding of the PWS requirements by proposing a different quantity of workers and team leaders in the quote narratives for Subfactor (1) and Subfactor (2); (4) a lack of understanding of PWS requirements resulting in overstaffing the "managerial" and "general worker" labor categories, (5) inconsistent quantity of proposed "Managers/specialists" (proposed a number in one section and a different number in another section), and (6) incomplete organizational chart that is inconsistent with the narrative for Subfactor (2) "Resources" . Therefore, your quote is no longer eligible for award consideration. The Government will not consider subsequent revisions of your company's quote, and no response to this letter is required. We thank you for providing your quote and wish you success in future endeavors.?

It should be noted that none of these six deficiencies (I haven?t yet verified them so I can say if they are deficiencies or not) were addressed by the Government on its letter dated 15 November 2010. Furthermore, nor adverse past performance findings were outlined on the aforementioned letter.

I am fully aware that FAR Part 13.106-2 is totally different than FAR Part 15, however I am of the impression that this evaluation was not performed in an impartial manner for the following reason:

Although an agency is not required to establish a competitive range or conduct discussions under simplified acquisition procedures, I think that where an agency avails itself of these negotiated procurement procedures, the agency should fairly and reasonably treat quoters in establishing the competitive range and conducting discussions.

The RFQ stated that no discussions would have been conducted. Discussions are exchanges between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal. Since the Government allowed us to revise our quote, I would say that discussions took place.

While agencies have considerable discretion in determining whether and how to conduct discussions, an agency must identify deficiencies and significant weaknesses, at a minimum, in the proposals of each offeror in the competitive range. Discussions must be meaningful, meaning that the discussions must be sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision.

It is well established in federal procurement law that discussions between the contracting officer of an agency and an offeror must be meaningful. Once discussions have been opened, the FAR dictates that an agency "shall...indicate to, or discuss with, each offeror still being considered for award, significant weakness, deficiencies, and other aspects of its proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal's potential for award." In order to be meaningful, a discussion must generally lead an offeror into specific areas of their proposal which require modification. Additionally, discussions should be as specific as practical considerations permit, and give offerors a reasonable opportunity to address any potential weaknesses or deficiencies in its proposal which could impact the offeror's competitiveness.

For the above I think we were prejudiced, given that the contracting officer must indicate in his/her letter dated 15 November 2010 all the deficiencies and or significant weaknesses he/she had found. In our case the Government on its letter dated 15 November 2010 did not address any of the six deficiencies which rendered our technical proposal unsatisfactory.

I am right? In your opinion, would the GAO sustain our protest? What could happen if we win the protest?

Thanks for your time and patient

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Guest carl r culham

Rudy - I appears you have a good understanding of the application of the FAR to the matter. Many will jump straight to offering advice as to your success with the GAO route. I do have a question related to the facts you have presented and that is have you had a discussion with the Contracting Officer regarding your concerns?

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Guest Vern Edwards

The agency apparently conducted the procurement under FAR Part 13, pursuant to the authority in Subpart 13.5. The rules about discussions in FAR Part 15 ordinarily would not apply. If, however, the GAO were to find that the agency actually used Part 15 procedures it might enforce the Part 15 rules. Whether or not GAO would sustain the protest would depend on the facts. I won't predict the outcome, since we know only your side of the story.

If GAO were to sustain your protest, the recommendation would probably be for the agency to reopen discussions, solicit revised quotations, conduct a new evaluation, and reconsider its decision.

My guess (just a guess) is that you would have little chance of changing the agency's mind and winning the competition based on evaluation of revised quotations. Their impression of your firm based on its last quotation seems highly unfavorable. You would have to work a miracle in order to change the final outcome.

If it were my decision, I would not protest.

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Rudy - I appears you have a good understanding of the application of the FAR to the matter. Many will jump straight to offering advice as to your success with the GAO route. I do have a question related to the facts you have presented and that is have you had a discussion with the Contracting Officer regarding your concerns?

No, we have not talked to the KO yet.

If the KO had sent to us only the second letter, I would say: it is right. Our technical proposal contains deficiencies and the Government correctly rejected it as unsatisfactory. But they conducted discussions and for me discussions must be meaningful. We were provided an opportunity to resolve those deficiencies, why not all of them? Why to have us to hurry to respond to the first letter when the Government knew that the technical proposal could not be considered acceptable even correcting the deficiencies addressed because there were other deficiencies into our technical proposal which were not brought to our attention? Why to call us the day after, requesting clarifications if, according to them, our past performance is marginal and no award can be made to a quoter, based on the RFQ, whose past performance is marginal or unsatisfactory?Isn?t a waste of time and efforts? Isn't somenthing strange?

What I stated is true. I did not quote the deficiencies addressed in the first letter for space reasons; however, if somebody is interested I can quote them and you will see that they are not the same quoted in the second letter.

I agree that even if the GAO will sustain our protest, we probably do not get the contract; however, I think it will be a lesson learned for us and for them too.

Thanks for your time.

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I agree that even if the GAO will sustain our protest, we probably do not get the contract; however, I think it will be a lesson learned for us and for them too.

Thanks for your time.

Rodolfo, even if you dont protest, Id suggest that you speak with the Government about your concerns.

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Guest Vern Edwards

Rodolfo:

I don't know what Mr. Hoffman meant by "speak with the Government." He does not say what you should speak about other than "your concerns." If he meant speak to complain about what you think happened to you, then let me say, from one businessman to another: Don't do it. The people you speak with will not appreciate it.

The procurement is over. You are not going to get the contract. You are a businessman. If you decide not to protest, then your main objective should be to be on good terms with the office that conducted the procurement, in case there are more opportunities in the future. You won't remain or get on good terms by complaining and you won't improve your chances in the future by expressing concerns that the agency did not conduct themselves properly.

Based on your description of what happened, my impression is that the office that conducted the procurement did not know what it was doing. Ignorant U.S. government contracting officials do not react well to complaints suggesting that they did something improperly. There are no lessons you can teach them. (Someone in that office might already know that you have complained about them online, since you included the solicitation number in one of your posts.)

Look to the future, not to the past. Thank them for the opportunity and for the information that they provided to you about the award, and then keep your eye open for the next chance. Let it go.

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Guest carl r culham

Somewhere in the "what is the best approach universe" between Vern and Joel...exercise your right under FAR 15.505/15.506 if at all possible and request a timely debrief to help you decide your course of action and to get a better understanding of the agency's approach to their final decision. Too late to be timely in either case? You should request anyway. If the debriefing occurs I suggest you should raise the questions that you have here in a business-like and professional way. Simply walking away in my view does not give you a good perspective on understandings that will help you in future dealings and debriefing might even give you perspective as to whether you would want to compete for another agency requirement from the same office.

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Guest Vern Edwards

Keep in mind that the procurement was conducted using SAP, in which case unsuccessful offerors are not entitled to a Part 15 debriefing.

Having said that much, I think asking for a debriefing is fine as long as you don't raise questions that suggest the agency did something wrong. Focus on finding out why they did not want to hire you. What was it, exactly, that kept you from being chosen? What didn't they like about you? What can you change about yourself? If you say or do anything that suggests that you are unhappy with the way they did things, they will go on the defensive, you will learn little of future value, and you be on the "watch" list of firms to be wary about. The best advice that I can give you is to avoid asking about the conduct of the discussions. Focus on your proposal and your past performance record.

Those who do business with the government must know them better than they know themselves and use that knowledge to their advantage in order to win business and make money. That must be their focus: winning business and making money. Some contractors become too focused on the legalistic aspects of the process and look for faults in the way the government personnel conducted their processes in order to explain why they didn't get the job. In the long run, that is a losing business strategy.

I know a little something about how the U.S. government does business in Italy. Let me tell you--good performance and a little Italian charm go a long way toward winning customer loyalty and contracts. Get a debriefing if you can, but leave them smiling and just a little bit sorry that they didn't pick you.

Ciao.

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