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Member Since 08 Dec 2011
Offline Last Active Oct 31 2012 10:46 AM

Posts I've Made

In Topic: Negotiations with Offerors AFTER Award

24 October 2012 - 07:47 PM

"It may be appropriate for the Corps to reopen discussions after award, re-evaluate proposals, make a new source selection decision, and terminate your contract. See, e.g., Mission Essential Personnel, LLC, GAO Decision B-404218.2, 2011 CPD para. 120. However, such an action may be inappropriate.

. . .

Then again, limiting discussions may be improper."

Could you please explain what circumstances the corrective action taken in Mission Essential would be inappropriate? And under what circumstances limiting discussions may be improper? I'm currently reading the decisions you cited, so it that explanation is contained in them, I apologize. I just wanted to make sure I asked you while you were still online here.

In Topic: Negotiations with Offerors AFTER Award

24 October 2012 - 07:38 PM

Thank you, Vern. I appreciate you taking the time to make such a comprehensive response with citations to GAO decisions that are relevant to this matter. I agree with you that I don't think the USACE's actions bode well for us, and we'll be prepared to take appropriate legal action if our contract is awarded to another offeror based on improper procurement actions by the USACE.

In Topic: Negotiations with Offerors AFTER Award

24 October 2012 - 06:57 PM


I know the USACE can't do whatever it wants; otherwise, there would be no need for the FARs or any other regs or laws. So, I completely disregarded that statement. I was also just trying to be nice in my response.

Anyway, I'm approaching this from a contractual standpoint: we have a contract with the USACE, so I don't see how the USACE can now entertain discussions with the other offerors as if this contract does not exist. I could understand perhaps if the contact was T4C, but that hasn't happened. Even if that had happened, I would expect the RFP to be re-solicited. Are you, in all your years of experience, aware of a situation when a government agency resumed negotiations with the rejected offerors after contract award as if the award never happened? From my reading of 4 CFR 21.8, resuming negotiations as a remedial measure with the disappointed offerors isn't an option. This isn't a case where the agency is making an award to a different offeror in order to comply with a reg or statute. Rather, the USACE is changing the terms of the negotiation.

Our concern is if we protest, the USACE will just cancel the RFP and resolicit to a MATOC pool or set the award aside for service disabled vets or some other group that we are excluded from. This is simply a crummy situation the USACE has put us in by disclosing our pricing to our competitors and then changing the rules of the game. And, we have been engaged in "discussions" over the past week, complaining quite loudly about how this recent procurement action is prejudicial and not in the spirit of FAR 15.306.

As for intervening, we received heavily redacted copies of the GAO protests (two of which were dismissed, one withdrawn). Each one was based on allegations the USACE has improperly deemed their respective proposals as technically unacceptable for reasons stated in the de-brief that had never before been raised in the previous discussions. So, intervening would have done little for us but cost us money and resources.

In Topic: Negotiations with Offerors AFTER Award

24 October 2012 - 01:46 PM

Thank you, ji20874. Your responses are very helpful.

In Topic: Brand Name Specific Supplier Providing Varying Pricing to Offerors

24 February 2012 - 01:08 PM

Just to elaborate on that last point, it's irksome and frustrating that this supplier knows that the Government is requiring exclusive use of its electrical gear, and that the cost of this gear is the substantial part of the price. Thus, the supplier has in essence placed itself in the position of determining the awardee by virtue of its ability to name its price among the competitors. That just doesn't appear to be fair, just or otherwise in the competitive spirit of the contracting regs.