Salus

@Neil Roberts, thanks. It didn't occur to me to check DUNS before, but I just ran a check and they don't appear to be registered with DUNS (the registered for federal contracting after the transition to the Unique Entity ID). Since it is no longer required for federal contracting, I may have to look into other companies that offer that service (recommendations would be appreciated!) However, their ownership information is also not available through their CAGE code/Defense Logistics Agency information. I was somewhat familiar with the new regulations from some summary articles, but it is good to read through the FR notice. The clarification of the 2 year period without automatic affiliation is an improvement over the previous word soup, and all of the JVs that were awarded the IDIQ fell within the 2 year period. I couldn't find information about upcoming proposed changes, but I will definitely keep my eye out for them.

We can't protest solely because we missed the 5-day window. The list of apparent awardees only included the JV name, and their SAM.gov registration information didn't list the businesses who owned the JV. This made it extremely difficult to find the ownership information that would have been used to make a decision about whether to make a size status protest within those 5 days. We just don't have the resources to devote to the level of effort necessary to dig through and find that information for more than 20 businesses in that short of a period, especially when that is the first time we see the companies who have submitted proposals. We would protest because we don't want to be forced to compete with a very large business (at least for our NAICS) under a contract fully set aside for small businesses. Also, there were fewer qualified bidders than there were available spots, so there was not another company that would have taken their place. The pool would have just been smaller, but we also would benefit from having one less large business competing in the small business set aside even if there had been another small business ready to take their place. Ideally, the SBA process to fix would either have a better or more thorough review process (additional resources for the SBA) or a better mechanism by which to raise the issue with the SBA since they have not responded to email inquiries for more than a month. All we really want is a more thorough check from the SBA based on the information we were able to gather, or that the CO would take the ball and run with it on getting it double checked.

Thanks, that is always good advice. We are definitely trying to stay away from making any accusations, but there is enough information (or missing information such as recently deleted employment history) that we think it warrants double checking by the SBA. The information was hard enough to find that we can see how it could have been missed on the first pass of checking based on the submitted paperwork. We have a contract ombudsman. Do you think it would be worth reaching out to them to see if they might have better luck tracking someone down at the SBA, or should we limit our conversations to the CO for now?

Thanks for this! We have tried reaching out to the SBA over the past month an a half (at all of the Mentor-Protégé Program email addresses because that paperwork also appears to have been filed while they were employed by the large business). We have not received any sort of response from them. I also reached out to our state office, who thought it was worth checking out but that it would have to come from the CO. But the information you have provided does at least indicate that it is taken seriously if we can talk to the right people. I did try bringing it up with the CO by asking if this situation would raise potential affiliation issues, but they referred me to the SBA...

Hi All, All the windows have passed, so this is more information seeking on how to handle similar issues in the future. As part of a multiple-award IDIQ that was set aside entirely for small business, we and the other awardees received our pre-award notification back in January. Not unusually, there were several JVs included and some other businesses of unclear disposition. No additional socioeconomic classification information was provided in the notification, which normally should be fine since that information is required in the SAM.gov registration. Based on the names and information provided in the notification, we were unable to find documentation for one of the businesses, and another business was apparently just a new small business based on the SAM.gov registration. Because we were expecting a specific large business to try to JV with a small business to access the contract, we did some digging into the two businesses that were not clear in their origin. With some significant sleuthing, we were able to find that the 'new' business was actually a JV, but who did not provide their ownership information in their SAM.gov registration information or FAR report. Some of the pertinent information that would have been more easier to find had the ownership information been included was that the small business member of the JV was founded by a director level employee and another senior manager of the large business while they were still employed by the large business, which would have raised a flag regarding potential affiliation. From what I understand, there is no provision in the FAR allowing for protests to be submitted after 5 days past the pre-award notification simply because the information necessary to know whether a size protest is appropriate or not. It also appears that the SBA can't or won't take action on their own unless a formal protest is submitted in a timely manner. What is the remedy to avoid such situations in the future? It is pretty rare that we have the sort of advanced information that let us know that this was a possibility and the time to do enough investigation to actually figure this out, so having an approach that would make it more readily apparent who the owners are or just lower the bar for filling in the missing information without antagonizing or just bothering the CO would be great. Or is this just a situation where you have to hope that the CO is really on the ball (I don't think the amount of investigation necessary to uncover the potential affiliation would be a reasonable expectation of a CO)?

Great, thank you for the answers everyone!

Can the CO cancel (or pause) the TO to reevaluate proposals after erroneous material is removed from the evaluation and then re-award from the same solicitation, or would they have to terminate for convenience and resolicit? Being aware that all of this is at the CO's discretion, I would like to know what options they have to remedy a task order award if it was made in error. Thanks!

Good Day, Can a task order (under an IDIQ and under the protestable threshold) that was recently awarded be re-evaluated and/or re-awarded by the Contracting Officer if there were significant errors found in a vendor's evaluation during the debriefing process? Thanks!

Every position was described in the solicitation down to the tasks and duties.

Hi Joel, that is a good find. I am guessing that these parts of the regs could be what triggered the issue if the CO kind of worked through the typical requirements for a labor hour contract without really checking the applicability of the procedures. This is a labor hour contract, but it is one of those special labor hour contracts where the exact number of hours for each position is prescribed by the government in the solicitation. In this case, they also included overtime specifically in the schedule for many of the positions (up to 50% extra hours for some positions). We did not propose any additional overtime use (and included some methods to reduce overtime use). So they have stated that overtime will be used (this was an RFQ not an RFP) while apparently trying to include the procedures you reference (though those clauses are not referenced in the solicitation). So when the government is specifically requiring overtime and including it in the schedule, that would seem to eliminate the requirement that we justify 'eligible' overtime hours for premium pay/rates, or am I mistaken? It still doesn't explain how we were responsible for providing wage determinations though...

Sorry, sloppy on my part, because my question was about price realism. Price reasonableness was checked at the master contract level (and our rates for this TO were significantly discounted from there). The original solicitation had the requirement for price realism under FAR provision, 52.222-46, but they specifically removed that in the amendment. When questioned, they stated that it wasn't in the best interest of the government. This probably created some additional confusion because it is related to professional employees. It really seemed that the agency wanted it both ways, that the employees are all professional enough to be exempt, but not professional enough to have price realism checked. The evaluation criteria also included the following (from the solicitation, which was subsequently removed during the amendment): The Vendors Compensation Plan shall be evaluated to ensure that it reflects a sound management approach and understanding of the contract requirements, such as • The vendor's ability to provide uninterrupted high-quality work. • The impact upon recruiting and retention. • Whether the proposed compensation levels reflect: o A clear understanding of the contract effort, and o The capability of the proposed compensation structure to obtain and retain suitably qualified personnel. Honestly, when they removed that and the 52.222-46 provision, that gave us a pretty good read that the CO wanted to price to be much more important than what was indicated in the original solicitation, which said: Factor 1-Technical/Management Approach is the most important factor and Factor 2-Transition Plan is more important than Factor 3-Past Performance. When combined Factors 1 through 3 are significantly more important than Factor 4-Price. But we built a fair amount of our proposal and team around fair wages, recruitment, retention, and cultivating excellent personnel, and couldn't (and wouldn't) redo our proposal to match a 'read between the lines' low cost objective. It feels like the goalposts were not just moved, but relocated to another stadium during the amendment. Ji, we will include everything but the tech lead/reviewer and their statement. It is up to them to push back on it from the inside if they so desire. In hindsight, shouldn't have even mentioned that here, and I wouldn't ever want to risk getting someone in trouble because it came up in the course of unrelated business that we said that we were disappointed that we wouldn't be working together under that contract, and they indicated that they didn't think anyone got what they wanted. Vern, even after doing this side for several years, I understand that I am a newbie, and hiring someone who knows the business much better than I would be nothing but helpful. Also sometimes, red flags are actually red flags. The CO told us that they awarded based solely on price because everyone received the same acceptable ratings. This was after a very drawn out award process where they did things like tell us that we had to justify overtime rates. All the advice and background information provided here has been super helpful in having a better understanding of how we are missing the full picture in source selection. In this case, though, having someone with much more experience and knowledge of the process probably wouldn't have helped. I am saying this as a logical response to the fact that the other unsuccessful bidder absolutely did have multiple people with extensive proposal and government contracting experience (20+ years) and high win rate (and partnered with the incumbent vendor) on their team, and they had the same result (and same concerns). If you come in with decent pay and overtime, you just aren't going to be competitive if it is awarded on a lowest cost basis.

Vern, you are correct. There would be no way to really compare. Aside from the CO telling us that the contract was awarded based on lowest price because all ratings were equal, we really just wanted to be able to find out any information FAR 15.506(d)(6) that C Culham shared to ensure that the process was followed. If there were no weaknesses, we could point out some giant red flags that the CO seemingly ignored. The first was the overtime issues. Our team and the other team both included OT (both teams consulted the Department of Labor and a labor attorney, separately). Both vendors were significantly higher (don't know how much higher the other team was, just just said significantly higher than the winning vendor). Both of our teams raised the OT issue with the CO as soon as the CO tried to require vendors prove that positions were eligible for OT. The second was pay reasonableness. During our debriefs, both unsuccessful offerors pointed out to the CO that the winning team would have to cut wages to a number of the employees currently working on contract, which is directly contrary to the technical factor of recruitment and retention. Both teams were told that it was up to the winning team to 'figure it out' in regards to pay and overtime. However, this seems pretty contrary to the technical factors and regulations that seemingly require COs to make sure that employees are receiving overtime if they are eligible and perform a price reasonableness determination. We knew going into the proposal that the technical leads were very concerned about high turnover rates due to already low pay and not just from it being included in the proposal. We no have a pretty good idea that the technical reviewers for this project don't feel like they got to chose the winning proposal (it is a small world). And now we know that many peoples wages were cut and OT wasn't included. I think nearly everyone signed to stay on, but that seems most likely related to their receiving 2 DAYS notice to make their decision. I can guarantee that some of those people are already looking for other work. So I guess a question in my mind follows is: Are CO's supposed to consider price reasonableness (that the winning vendor cannot possibly pay market wages)? Are they supposed to consider whether there is going to be a big hit on one of the primary technical factors that was supposed to be the weightiest component of the evaluation? I know that price isn't supposed to go directly in front of the technical reviewers, so if the CO bothered to consider that, would that end up considered as a weakness? (Based on the CO's responses though, it certainly seems like price was the decision factor even though it undermined the primary technical factors) Regardless, we are following the advice given in this thread. We are going to file a letter with the Ombudsman (the other unsuccessful vendor already did for these same issues) and stay in touch with technical leads. We are considering advising them that if they are unhappy with the how the award was made or is implemented, they should reach out to their regional administrator to follow up.

Vern, I am going to agree with you in principle. However, in this case I think that would have just been additional wasted time and money. We know that in the dozen or so contracts awarded by this office no recipient or our team has received a higher than acceptable rating (even those we won), and always awarded to the lowest price (and all of them were best value solicitations). We know that they had us submit an updated proposal after the prices were set and 3 months after the technical reviews were complete, and therefore (should have) already knew who was going to receive the award, and that the price differential would not have left us in the competitive range. We know that they ignored that the contracted positions are not getting paid overtime even though they are clearly required to be paid overtime rates as determined by the agency themselves in other regions (as well as based on discussions with the Department of Labor and a labor attorney). They even went so far as to try to force companies to justify paying overtime rates (when you are legally required to do the opposite...). This factor alone probably bumped us out of price competition. We know that the CO would not answer questions about the number of strengths and weaknesses from the winning proposal (not exactly proprietary information). After such a inexplicably long process that had almost no communication from the COs and multiple issues, the only response from the COs when we had reasonable process questions was effectively 'trust us, we did the process correctly'. Based on the totality of the available information, the preponderance of evidence indicates that the only winning strategy was price with an at least minimally acceptable proposal. If the solicitation process always worked and awards were always made using the best judgement and practices available, then a protest system wouldn't need to exist. As a vendor, sometimes the only thing left to do is get the best information you can to inform your decision about a protest. I think this has just been a painful part of learning how this particular acquisition office works. However, we will definitely be incorporating all of the good advice that has been shared on this thread!

C Culham, thanks for that! We definitely did not receive some of that information. I would very much like to see unit prices and the overall rankings. We asked about the number of strengths and weaknesses of the successful offereors proposal, which seems like it would fit under # 6, but that one is pretty subjective and they refused stating that it is source selection information pertaining to the awardee's quote and is not releasable. Well, next time, we will have some more specific question for them! Thanks again!

Thanks Joel, we'll take all the luck we can get to even the playing field! C Culham, you are correct. That made it all the more difficult to provide an SCA wage determination to justify paying overtime!