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Im going to start out by saying im in a contingency environment. Tech evaluations just occured and the source selection is LPTA. All offerors are technically unacceptable except 2 (well, they are the "most" acceptable). However the 2 technically acceptable proposals have statements within their proposals that are confusing that may be a result of the solicitation being translated. 15.101-2(B)(4) states exchanges may occur. Can the Government ask the 2 most acceptable proposals to clarify their proposals without going to the other unacceptable offerors?

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Im going to start out by saying im in a contingency environment. Tech evaluations just occured and the source selection is LPTA. All offerors are technically unacceptable except 2 (well, they are the "most" acceptable). However the 2 technically acceptable proposals have statements within their proposals that are confusing that may be a result of the solicitation being translated. 15.101-2(B)(4) states exchanges may occur. Can the Government ask the 2 most acceptable proposals to clarify their proposals without going to the other unacceptable offerors?

If you need additional information to determine the acceptability of the proposals, the exchanges with the offerors would constitute discussions. See this extract from Nu-Way, Inc., B-296435.5; B-296435.10, Sept. 28, 2005:

Quote

When an offeror is given the opportunity to remove an ambiguity from its proposal, especially where the information to be provided by the offeror is essential for determining the proposal?s acceptability, such an exchange constitutes discussions.

Unquote

If you are following FAR Part 15, perhaps the circumstances justify a competitive range of two. If you are using FAR Part 13, why not speak only with the "most acceptable" contractor offering the lowest price?

If the proposal statements are included in another language, can you not eliminate the confusion by obtaining a better translation of the statements by someone other than the contractors?

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If you need additional information to determine the acceptability of the proposals, the exchanges with the offerors would constitute discussions. See this extract from Nu-Way, Inc., B-296435.5; B-296435.10, Sept. 28, 2005:

Quote

When an offeror is given the opportunity to remove an ambiguity from its proposal, especially where the information to be provided by the offeror is essential for determining the proposal?s acceptability, such an exchange constitutes discussions.

Unquote

If you are following FAR Part 15, perhaps the circumstances justify a competitive range of two. If you are using FAR Part 13, why not speak only with the "most acceptable" contractor offering the lowest price?

If the proposal statements are included in another language, can you not eliminate the confusion by obtaining a better translation of the statements by someone other than the contractors?

This is for a construction contract so would fall under FAR Part 15. I told the KO that I would establish a competitve range. However she feels that competive rangs is only for best value source selections and not appropriate for LPTA. I have never heard that competitive ranges were only for best value/trade off. In regards to the translation, the propsals are in english. The Tech Board feels the error occured when the contractor internally translated the solicitation and then drafted their proposal in english.

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I recommend reviewing 21 Nash & Cibinic Report ? 45. If you need this information to resolve an ambiguity in the proposal to determine whether or not the proposal is acceptable, then it sounds like your engaged in discussion, not clarification.

I agree in regards to your assessment of discussion vs. clarification. And I wish I would have brought my Cibinic and Nash books, but when I was already toting 5 duffels, I had to limit what I was taking!

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This is for a construction contract so would fall under FAR Part 15. I told the KO that I would establish a competitve range. However she feels that competive rangs is only for best value source selections and not appropriate for LPTA. I have never heard that competitive ranges were only for best value/trade off. In regards to the translation, the propsals are in english. The Tech Board feels the error occured when the contractor internally translated the solicitation and then drafted their proposal in english.

It is important that you base decisions based upon your knowledge of the FAR, not upon "feelings" sensed around the office, even if the feelings are felt by someone with a warrant..

Please read FAR 15.3 and tell us if the concept of the competitive range applies only to "best value" source selections.

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Guest Vern Edwards
Im going to start out by saying im in a contingency environment. Tech evaluations just occured and the source selection is LPTA. All offerors are technically unacceptable except 2 (well, they are the "most" acceptable). However the 2 technically acceptable proposals have statements within their proposals that are confusing that may be a result of the solicitation being translated. 15.101-2(B)(4) states exchanges may occur. Can the Government ask the 2 most acceptable proposals to clarify their proposals without going to the other unacceptable offerors?

Your contracting officer is wrong. LPTA source selections are governed by the same rules as tradeoff process ("best value") source selections. The rules in this case are in FAR 15.306. If you want to give any offeror a chance to change its proposal you must conduct discussions with all offerors within the competitive range. Before you conduct discussions you must establish a competitive range and determine whether the offerors whose proposals are unacceptable are within the competitive range. If you exclude them, then you don't have to talk to them. But be careful, unacceptability in and of itself might not be sufficient grounds of exclusion if the basis for unacceptability is easily corrected and the price is competitive. However, you get a great deal of discretion in that regard as long as you are reasonable.

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This is for a construction contract so would fall under FAR Part 15. I told the KO that I would establish a competitve range. However she feels that competive rangs is only for best value source selections and not appropriate for LPTA. I have never heard that competitive ranges were only for best value/trade off. In regards to the translation, the propsals are in english. The Tech Board feels the error occured when the contractor internally translated the solicitation and then drafted their proposal in english.

Does your KO know that the LPTA was moved and described under the "best value continuum" as a BV acquisition method in the FAR 15 rewrite back in 1996-1997 time frame (15.101-2)? Where does the present FAR 15 distinguish this method from the trade-off method establishment of a competitive range and conducting discussions?

Could your KO possibly be 14 years behind FAR?

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Guest Vern Edwards

Joel:

Your post seems to suggest that FAR distinguished between LPTA and the so-called "best value" method before the FAR Part 15 Rewrite (September 1997). FYI, the source selection rules have never been different for LPTA than for the "best value" (tradeoff) method. The Rewrite did not "move" LPTA. Prior to the Rewrite, FAR recognized no difference between the LPTA and "best value" methods. For a discussion of the application of the rules about competitive range and discussions to LPTA before the Rewrite, see National Medical Staffing, Inc., B-259700, March 6, 1995, 95-1 CPD ? 133. Ashley's CO simply doesn't know the rules.

For some reason, some people think that LPTA is or once was conducted under different rules than the "best value" method. That has not been true since the FAR took effect in 1984.

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Joel:

Your post seems to suggest that FAR distinguished between LPTA and the so-called "best value" method before the FAR Part 15 Rewrite (September 1997). FYI, the source selection rules have never been different for LPTA than for the "best value" (tradeoff) method. The Rewrite did not "move" LPTA. Prior to the Rewrite, FAR recognized no difference between the LPTA and "best value" methods. For a discussion of the application of the rules about competitive range and discussions to LPTA before the Rewrite, see National Medical Staffing, Inc., B-259700, March 6, 1995, 95-1 CPD ? 133. Ashley's CO simply doesn't know the rules.

For some reason, some people think that LPTA is or once was conducted under different rules than the "best value" method. That has not been true since the FAR took effect in 1984.

Vern, I don't disagree with you regarding the old rules for discussions and competitive range not being any different for trade-off vs. LPTA pre-FAR rewrite.

I noticed that the KO was trying to make some distinction between "best value" and "LPTA". I used to conduct LPTA source selections prior to the rewrite and we followed the same procedures for LPTA as for trade-off.

However, I "remember" that LPTA was discussed separately from "best value" in the pre-FAR 15 rewrite and it was specifically included in new discussion of the "Best Value Continuum" , which defined it as a Best Value method.

But I agree that it was covered by the same rules for discussions.

I am in Ft Worth without access to my 1996 FAR, at home. This is all based upon memory tonight. I'm also trying to watch Auburn beat Oregon tonight (no offense).

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I'm also trying to watch Auburn beat Oregon tonight (no offense).

Sheesh! I meant "nothing personal". There seems to be plenty of "offense" and "defense" in tonight's National Championship game. :)

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Guest Vern Edwards

If you can access the internet, go to www.acquisition.gov, click on Federal Acquisition Regulation, look in the archives at the 1997 reissue, whiuch predates the Rewrite, and see if you can find the separate coverage. I don't see it, but you might mean something I don't understand.

Kind of a good game, but we (Oregon) are stymied at this point. Still time, though.

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If you can access the internet, go to www.acquisition.gov, click on Federal Acquisition Regulation, look in the archives at the 1997 reissue, whiuch predates the Rewrite, and see if you can find the separate coverage. I don't see it, but you might mean something I don't understand.

Kind of a good game, but we (Oregon) are stymied at this point. Still time, though.

If I get a chance to check the FAR Archives this week, I will.

Right now, I have to celebrate. That was amazingly close! A great game between true numbers one and two!!!!! Great game Oregon.

War Eagle!!!!!!!!

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Thanks all for the reply. My next question would be what if the evaluation instructions do not state how the competitive range would be determined (as we didn?t not anticipate establishing a competitive range)? Is it still appropriate to establish the competitive range? Or must the solicitation be cancelled and re-issued to include that information?

i apologize if I am asking rather basic questions. I tend to operate under Part 13 procedures.

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Guest Vern Edwards

There is no requirement or need for the evaluation instructions to say how the competitive range is to be established. It is not supposed to be done by formula. You compare the offerors on the basis of the results and decide which are viable competitors. First, look at the prices, since that is ultimately the deciding factor. Anyone who is too high to be competitive is probably out. If the price is in the running, and if their proposal is acceptable, then they are good candidates for inclusion. If they are technically acceptable, but the price is not competitive, you can exclude them. (Yes, you can exclude an offeror whose technical proposal is acceptable if their price is too high.) If they are technically unacceptable, then the question is whether the reason for unacceptability can be easily eliminated. If the reason for unacceptability is easily fixable, without a major proposal rewrite, and if the price is competitive, you can include them, even if you have excluded someone who is technically acceptable but too highly priced.

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There is no requirement or need for the evaluation instructions to say how the competitive range is to be established. It is not supposed to be done by formula. You compare the offerors on the basis of the results and decide which are viable competitors. First, look at the prices, since that is ultimately the deciding factor. Anyone who is too high to be competitive is probably out. If the price is in the running, and if their proposal is acceptable, then they are good candidates for inclusion. If they are technically acceptable, but the price is not competitive, you can exclude them. (Yes, you can exclude an offeror whose technical proposal is acceptable if their price is too high.) If they are technically unacceptable, then the question is whether the reason for unacceptability can be easily eliminated. If the reason for unacceptability is easily fixable, without a major proposal rewrite, and if the price is competitive, you can include them, even if you have excluded someone who is technically acceptable but too highly priced.

Vern thank you so much for your help. I told the KO that I did not believe it was necessary to state upfront how the competitive range was to be established. However she stated that it had to be included. When I asked why, I was told various GAO decisions? I didnt have a response to that, so I dropped the issue. Anyways, I appreciate your help in this matter.

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The response to "various GAO decisions" is: Cite one. Of course, this is your boss we're talking about, so tread carefully.

I agree with Vern. In addition, your RFP should contain (see 15.209 (a) solicitation provision 52.215 with either basic provision paragraph (f) (4) or Alternate I . This paragraph would allow or indicate that discussions are contemplated, depending upon whether basic or Alt I is used. It also mentions the competitive range. It would seem that this paragraph would contain additional info if "various GAO decisions" required such.

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Guest Vern Edwards

Joel,

Congratulations on the win. We don't feel too badly, since our guys did well against a tough team. Exciting game.

See you next year. (When does Newton graduate?)

Vern

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(When does Newton graduate?)

Vern, he would be a senior next year. He announced a few days ago that he is not going pro because he doesnt want to take a pay cut - (NOT). :)

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Fairley's leaving, tho--right? Isn't that right? Tell me that's right.

Yes, they both are, along with most of the O and D front lines, who are mostly seniors, I think.

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