Contracting officers may choose not to include price or cost as an evaluation factor for award when a solicitation, in relevant part, states that the Government intends to make an award to each and all qualifying offerors (see 2.101).

“Qualifying offeror, as used in 13.106-1and 15.304, means an offeror that is determined to be a responsible source, submits a technically acceptable proposal that conforms to the requirements of the solicitation, and the contracting officer has no reason to believe would be likely to offer other than fair and reasonable pricing (10 U.S.C. 2305(a)(3)(D)).” (Emphasis Added)

 A commenter response in the Final Rule states “The definition of “qualifying offeror” is taken directly from the statute and included in the final rule at FAR 2.101, 13.106-1(a)(2)(iv)(A)(3), and 15.304(c)(1)(ii)(A)(3).” However, the cited statute doesn’t use the technically acceptable language.

”"qualifying offeror" means an offeror that—

(i) is determined to be a responsible source;

(ii) submits a proposal that conforms to the requirements of the solicitation; and

(iii) the contracting officer has no reason to believe would likely offer other than fair and reasonable pricing.”

Technically acceptable is not defined as far as I know. Do you think FAR 2.101’s definition of qualifying offeror means submits a proposal that meets all technical requirements and conforms to the requirements of the solicitation (technical factors/subfactors and legal sense of acceptable); or submits a proposal that conforms to the requirements of the solicitation (legal sense of acceptable)?

It would have to be the former.  You wouldn’t want to make an award if an offeror wasn’t technically acceptable.  Interesting issue though.

1 hour ago, Jamaal Valentine said:

submits a proposal that meets all technical requirements and conforms to the requirements of the solicitation (technical factors/subfactors and legal sense of acceptable)

My choice because the statute  provides that when cost/price is not being evaluated for a multiple award task or delivery order contract the government shall evaluate the offerors on quality of product or services that is inclusive of technical capability. 

"10 USC 2305(a)(3)(i) shall (except as provided in subparagraph (C)) clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, prior experience, and past performance of the offeror);..."

Since the regulation does not define "technically acceptable," smart contracting officers will define it in the solicitation. That should put the issue to bed.

The definition should state that in order to be technically acceptable a proposal must, among other things, conform to all material terms of the solicitation. That's the GAO/COFC standard for acceptability and always applies. The CO can add anything else he or she wishes in order to make the term more narrowly restrictive. The CO should document the rationale for the definition and ensure that it is not unduly restrictive.

Putting the definition in the solicitation would mean that prospective offerors must protest it before the proposal due date or forever hold their peace.

One thing I have observed for some solicitations using the authority of 10 U.S.C. 2305(a)(3)(C) to award parent IDIQ contracts without a price evaluation is that the solicitation will specify the maximum number of awards to be made (instead of promising a contract award to each qualifying offeror).

1 hour ago, C Culham said:

My choice because the statute  provides that when cost/price is not being evaluated for a multiple award task or delivery order contract the government shall evaluate the offerors on quality of product or services that is inclusive of technical capability. 

"10 USC 2305(a)(3)(i) shall (except as provided in subparagraph (C)) clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, prior experience, and past performance of the offeror);..."

Are you saying you the the Government must evaluate technical capability, management capability, prior experience, and past performance of the offeror?

FAR 15.304(c)(2) says the quality of the product or service shall be addressed in every source selection through consideration of one or more non-cost evaluation factors such as past performance, compliance with solicitation requirements, technical excellence, management capability, personnel qualifications, and prior experience...

 A single non-cost evaluation factor can be used to evaluate the quality. Given that, we can say something like:

Technically acceptable means an offeror and their offer satisfy the Government’s quality requirements for the non-cost/price evaluation factors stated in the solicitation.
 

Offerors and their offer will be evaluated for acceptability but not ranked using the non-cost/price factors.

-or-

Technically acceptable means an offeror and their offer (1) satisfy the Government’s quality requirements for the non-cost/price evaluation factors stated in the solicitation; and (2) conform to all material terms of the solicitation. 

Offerors and their offer will be evaluated for acceptability but not ranked using the non-cost/price factors.

Alternatively, if we don’t want to include non-cost factors in the definition we can simple say that Technically acceptable means an offer that (1) conforms to all material terms of the solicitation; and (2) expressly assents to the terms and conditions of the Government’s model contract as provided in the solicitation.

I’m sure those definitions can be improved, but I think they provides my basic thoughts. However, if we use certain non-cost factors we should also check FAR 9.104-2 and see if they are definitive responsibility criteria.

1 hour ago, formerfed said:

It would have to be the former.  You wouldn’t want to make an award if an offeror wasn’t technically acceptable.  Interesting issue though.

What do you mean by technically acceptable?

Here is FAR 15.304(c)(1)(ii):

Quote

(c) The evaluation factors and significant subfactors that apply to an acquisition and their relative importance, are within the broad discretion of agency acquisition officials, subject to the following requirements:

           (1) (ii) In accordance with 10 U.S.C. 2305(a)(3), for DoD, NASA, and the Coast Guard—

                     (A) The contracting officer may choose not to include price or cost as an evaluation factor for award when a solicitation—

                          (1) Has an estimated value above the simplified acquisition threshold;

                          (2) Will result in multiple-award contracts (see subpart 16.5) that are for the same or similar services; and

                          (3) States that the Government intends to make an award to each and all qualifying offerors (see 2.101).

In light of the definition of qualifying offeror in FAR 2.101, that means an agency need not evaluate price if it will award a contract to every responsible offeror who submits a technically acceptable proposal and is likely to offer fair and reasonable prices.

Responsibility is a pass/fail criterion. Likely to offer fair and reasonable prices also seems to be a pass/fail criterion (but maybe not--perhaps some offerors could be more likely than others--absolutely, highly, moderately, etc. Can we include only they highly likely?)

So what about technical acceptability? Can that be a matter of comparisons and tradeoffs or is it necessarily pass/fail?

Congress and the FAR councils should get together and form a slapstick comedy troupe.

6 hours ago, Jamaal Valentine said:

What do you mean by technically acceptable?

There isn’t a consistent and precise definition.  Vern mentioned earlier smart COs define it in solicitations.  FAR 15.101-2, when covering LPTA, says 

Quote

 (1)  The evaluation factors and significant subfactors that establish the requirements of acceptability shall be set forth in the solicitation. Solicitations shall specify that award will be made on the basis of the lowest evaluated price of proposals meeting or exceeding the acceptability standards for non-cost factors

So my answer is it could vary based on circumstances.  To be safe, the precise definition for the procurement at hand should be part of the solicitation.

7 hours ago, Jamaal Valentine said:

Are you saying you the the Government must evaluate technical capability, management capability, prior experience, and past performance of the offeror?

Not at all.  I provided the snippet but probably should have provided more.  You have clarified with your continued comments to the question. 

23 hours ago, formerfed said:

There isn’t a consistent and precise definition.  Vern mentioned earlier smart COs define it in solicitations.  FAR 15.101-2, when covering LPTA, says 

So my answer is it could vary based on circumstances.  To be safe, the precise definition for the procurement at hand should be part of the solicitation.

Understood; and agree. I’m still interesting in what you meant by technically acceptable in your first post.

On 2/9/2021 at 6:46 AM, formerfed said:

It would have to be the former.  You wouldn’t want to make an award if an offeror wasn’t technically acceptable.  Interesting issue though.

21 minutes ago, Jamaal Valentine said:

Understood; and agree. I’m still interesting in what you meant by technically acceptable in your first post.

Ok.  Failed to meet the need of the procurement

@formerfed

I asked because most people I hear use the phrase “technically acceptable” are using it as it relates to stated non-cost/price evaluation factors/subfactors. I was curious if you were using it in that way or in another way (e.g., broader legal acceptability).

”It is well settled that, in a negotiated procurement, a proposal that fails to conform to one or more of the solicitation's material requirements is technically unacceptable and cannot form the basis for an award.“ (Farmland National Beef, B-286607; B-286607.2, January 24, 2001)

2 hours ago, Jamaal Valentine said:

”It is well settled that, in a negotiated procurement, a proposal that fails to conform to one or more of the solicitation's material requirements is technically unacceptable and cannot form the basis for an award.“ (Farmland National Beef, B-286607; B-286607.2, January 24, 2001)

And, to complete Jamaal's thought:

Quote

"A material requirement or term of a solicitation is generally one that affects the price, quantity, quality, or delivery of the goods or services being provided." Heskett and Heskett Services, B-415528, 2016 CPD ¶ 64, Feb. 26, 2016.