FAR 15.209 (a) (2):  Alternate proposals

Comptroller General - Key Excerpts

Finally, the protester contends that PR Newswire’s system does not offer the ability to integrate distribution of press releases and other products via PRWeb, as required by the RFP. Protest at 1. The agency acknowledges that PR Newswire’s proposal did not offer the ability to integrate with PRWeb, but contends that the firm’s system offers an equivalent capability--the ability to integrate with WebMaxPLUS, another online press release distribution service. FEMA Response to GAO Questions, Mar. 12, 2010, at 2. The agency contends that, although PR Newswire’s system integrates with WebMaxPLUS rather than PRWeb, the system achieves the same results, and therefore satisfies the requirements of the solicitation. Id.; FEMA Supp. Response, at 5.

Generally, where a solicitation sets forth requirements in very specific terms, offerors must meet them precisely. See Ross Cook, Inc., B‑231686, Sept. 7, 1988, 88-2 CPD para. 216 at 2. However, if there is a discrepancy between the offered product and the stated requirement, and the offered product will meet the agency’s needs, the deviation may be waived if there is no prejudice to the other offerors. See Safety Storage, Inc., B‑275076, Jan. 21, 1997, 97-1 CPD para. 32 at 4; CryoMed, B‑241605, Feb. 22, 1991, 91-1 CPD para. 202 at 4. Unfair competitive prejudice from a waiver or relaxation of the terms and conditions of the RFP for one offeror exists where the protester would have altered its proposal to its competitive advantage had it been given the opportunity to respond to the altered requirements. CryoMed, supra.

Here, while PR Newswire did not offer the ability to integrate with the specific distribution service named in the RFP, it offered the ability to integrate with an equivalent service. The protester does not argue that the system with which PR Newswire’s technology integrates, WebMaxPLUS, is inferior to PRWeb; rather, the protester contends that PR Newswire did not comply with the specific terms of the RFP requiring integration with PRWeb. We agree with the protester that the agency effectively waived the RFP requirement that the proposed system integrate with PRWeb, and instead considered the requirement to be satisfied if the system was capable of integrating with any online press release distribution service that offered the same features as PRWeb. Nevertheless, we see no basis to conclude that, had Vocus known of the relaxed requirements regarding integration with PRWeb, it would have revised its proposal in any material way. Because the protester has suffered no prejudice as a result of the agency’s waiver of strict compliance with the RFP requirement, we deny this ground of protest.  (Vocus Inc., B-402391, March 25, 2010)  (pdf)

Three proposals were received in response to the solicitation. Potomac’s proposal offered the lowest price and consisted of seven pages, the first two of which were a cover letter, which stated:

Potomac Electric Corporation is a small business manufacturer . . . We specialize in design and manufacturing of servomotors. The strength of our company is in innovative designs of motors . . . The motor design quoted in the proposal is based on our MX8200 motor developed in 2005. . . . Note: The motor proposed here is FIT, FORM and FUNCTION replacement of the motor described in your documentation.

Agency Report, Tab 7, Potomac’s Proposal, Cover Letter. This proposal was found unacceptable because the contracting officer determined that Potomac was apparently offering an alternative motor and, thus, failed to comply with the requirements of the solicitation. Award was made to Fischer Electric Technology, the second low-priced offeror, which submitted an acceptable proposal. This protest followed.  Cover letters submitted with proposals are considered part of the proposal. INDUS Technology, Inc., B-297800.13, June 25, 2007, 2007 CPD para. 106 at 6. This is so because a cover letter may alter the obligations the offeror would otherwise assume under the terms of the solicitation. Only by evaluating a cover letter or extraneous documents submitted with a proposal can a contracting officer assure himself or herself of making award on the basis of a compliant proposal which satisfies the agency’s stated requirements. System Dynamics Int’l, Inc.--Recon., B-253957.4, Apr. 12, 1994, 94-1 CPD para. 251 at 3; Techniarts Eng’g; Department of the Navy—Recon., B-238520.3, B-238520.4, June 27, 1991, 91-1 CPD para. 608 at 3-4. Where a proposal (including any cover letter) includes a blanket offer of compliance to meet specifications and also contains conflicting provisions which call that offer of compliance into question, the proposal is ambiguous and properly may be rejected as technically unacceptable. Cache Box, Inc., B-279892, July 29, 1998, 98-2 CPD para. 146 at 3. Here, Potomac submitted a blanket offer of compliance with the RFP requirements by offering a price and signing the solicitation cover sheet and acknowledging copies of amendments 1 and 2 to the RFP. This was all that the RFP required in order for a proposal to be found acceptable. However, as noted, Potomac’s cover letter noted that it was proposing a “FIT, FORM and FUNCTION replacement of the motor described” in the RFP. The contracting officer, upon reading Potomac’s cover letter, construed Potomac’s “FIT, FORM and FUNCTION replacement” statement as an offer to provide a motor that Potomac was representing to be interchangeable with the motor contained in the solicitation with respect to physical and functional capacity, but not necessarily a motor that would fully comply with all of the detailed TDP requirements. Potomac argues that its language did not imply that it would be proposing an alternative to the TDP requirements and that the “fit, form and function” expression is a term of art among engineers in the field and did not take exception to the RFP requirements. Nevertheless, we find that this terminology, at best, created an ambiguity, such that the contracting officer was unable to unequivocally determine whether Potomac’s replacement would comply with all of the requirements of the TDP or provide a fully compliant replacement motor. Since the solicitation did not allow submission of proposals departing from the TDP requirements, the contracting officer reasonably rejected Potomac’s offer to be unacceptable because it was ambiguous as to whether it was offering an alternative motor which complied with all of the RFP requirements. Cache Box, Inc., supra; Barton ATC, Inc., B‑271877, B-271878, Aug. 6, 1996, 96-2 CPD para. 58 at 3-5.  (Potomac Electric Corporation, B-311060, April 2, 2008) (pdf)

Even where an RFP provides for multiple awards, offerors may properly condition offers on receipt of all items, or a combination of items unless the solicitation expressly prohibits "all or none" or similarly restricted offers. Uniroyal Plastics Co., Inc., B-240319, Nov. 2, 1990, 90-2 CPD P: 360 at 2. Here, Carlson's proposal of a discounted price for award of all five regions under an RFP which did not proscribe such a restriction was permissible, and MTMC properly considered Carlson's discounted pricing for award of all regions. Where, as here, a solicitation requests offers on a fixed-price basis, an offer that is conditional and not firm cannot be considered for award. Assets Recovery Sys., Inc., B-275332, Feb. 10, 1997, 97-1 CPD P: 67 at 4. Accordingly, MTMC's determination not to consider Omega's proposed contingent price discount, where there was no basis for the agency to know whether the contingency would be achieved, is unobjectionable.  As noted above, the solicitation expressly set forth "transaction fees" as the evaluation factor by which the offeror's prices would be evaluated. To this end, the solicitation included pricing schedules by region on which offerors were required to enter specified transaction fees, that is, a charge per transaction. As the agency correctly notes, "[a] flat fee is . . . the antithesis of a transaction fee, and would not therefore fall within an alternative pricing scheme contemplated by the RFP." AR at 5.  (Omega World Travel, Inc.; SatoTravel, Inc., B-288861.5; B-288861.6; B-288861.7, August 21, 2002)  (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
Vocus Inc., B-402391, March 25, 2010  (pdf)  
Potomac Electric Corporation, B-311060, April 2, 2008 (pdf)  
Omega World Travel, Inc.; SatoTravel, Inc., B-288861.5; B-288861.6; B-288861.7, August 21, 2002  (pdf)  

U. S. Court of Federal Claims - Key Excerpts

Plaintiff offers two related challenges to the award to CACI. The first is that CACI offered non-conforming and impermissible “alternate” proposals. Even if the proposal accepted by WHS is conforming, however, Group Seven contends that the receipt of more than one conforming offer was improper. Plaintiff correctly points out that the solicitation did not notify offerors that multiple proposals were allowed. Rather the solicitation contained the following language which plaintiff finds significant: “[T]he offeror’s initial proposal should contain the offeror’s best terms from a cost or price and technical standpoint.” AR 340. From this, plaintiff contends, offerors should have assumed that they could submit only one offer, even if others might have been conforming. We can deal with the latter argument first. Multiple bids that are consistent with the solicitation’s terms are acceptable. Educational Media, 87- 2 Comp. Gen. ¶ 442 (1987) (“the government may accept an alternate offer that meets the requirements of the solicitation even though the solicitation does not provide for alternate proposals.”). Nor do we view the language of the 8/ solicitation (“best terms from a cost or price . . . standpoint”) significant. We view that language as a warning that bidders should not assume they can offer different prices at a later point. In any event, CACI’s submission did contain its best price. (Group Seven Associates, LLC, v. U. S., and CACI, Inc., No. 05-867C, October 13, 2005) (pdf)

First, looking at the precise language used in the “all or none” clause, the Court finds that this clause unambiguously prohibits offerors from submitting only an “all or none” offer. Use of the word only limits the reach of the “all or none” clause’s prohibition. In other words, this provision does not contain a blanket prohibition on “all or none” offers. Rather, as McKesson suggests, the provision merely informs offerors that the VA would accept an “all or none” offer so long as the offeror also submitted another offer for each individual region submitted in the “all or none” offer. Def.-Int.’s Opp’n at 3 (citing AR 0195 and 0260-73). Accordingly, the Court must reject ABC’s interpretation of the “all or none” clause. See Anderson Columbia Environmental, Inc., 43 Fed. Cl. at 698 (“The court must give reasonable meaning to all terms, and not render any portion meaningless.”). In addition, other provisions contained in the solicitation confirm that the clause is not a blanket prohibition on “all or none" offers. Specifically, the solicitation states: “[i]n order to be eligible for award, any Offeror submitting alternate offers (which are multi-region offers) also must submit offers for each individual region offered in the alternate offers.” AR 0260-73. As admitted by ABC in its Motion for Judgment on the Administrative Record, this instruction clearly permits multi-region offers that are “contingent on the award of the entire offer . . . [if the offeror] provides stand alone offers for each of the regions included in the combination.” Pl’s. Mot. for J. at 26-27. Despite this concession, ABC maintains that “because the terms ‘multiregion’ and ‘all-region’ are not synonymous, the express allowance of the former does not contradict the express disallowance of the latter.” Pl’s. Opp’n at 6. The Court disagrees with this interpretation. The solicitation does not limit the number of regions an offeror may include in a multi-region proposal. Rather, the solicitation specifically states that an “offer may be submitted on one, more than one, or each and every one of the identified regions.” Def.-Int.’s Opp’n at 4 (citing AR 0131) (emphasis added). Thus, the solicitation permitted all-region offers so long as the offeror submitted individual offers for each of the 14 regions in its other proposals.  (Amerisourcebergen Drug Corp., v. U. S. and McKesson Corp., No. 04-63C, March 25, 2004) (pdf)

U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester
Group Seven Associates, LLC, v. U. S., and CACI, Inc., No. 05-867C, October 13, 2005 (pdf)  
Amerisourcebergen Drug Corp., v. U. S. and McKesson Corp., No. 04-63C, March 25, 2004 (pdf)  
Omega World Travel, Inc. v. The U. S., No. 02, 1199C, November 26, 2002 (pdf)  


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