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  1. I agree. I agree, however, this could count as discussions, since it's the same thing as asking SAIC to remove their indemnity clause. It should not count as discussions though as long as the removal of a contractor's unacceptable custom clause does not affect their price quote, or anything else either, like their technical approach, if that was an evaluation factor.
  2. In the case of United Marine International LLC File: B-281512, is “FAR Sec. 12.301(c) where a relative technical evaluation is contemplated” implying that FAR 52.212-2 Evaluation-Commercial Products and Commercial Services is only appropriate for trade-off solicitations? And not LPTA? If FAR 52.212-2 Evaluation-Commercial Products and Commercial Services can be used in LPTA, how is “the offered equipment's compliance with the specifications” not an evaluation factor? If this clause is allowed in LPTA, shouldn’t DACW69-98-Q-0328 have had FAR 52.212-2 in the solicitation that looked like this?: Addendum to 52.212-2 Evaluation—Commercial Products and Commercial Services. 52.212-2 is entirely replaced with the following: (a) The Government will award a contract resulting from this solicitation to the responsible quoter whose quote conforming to the solicitation will meet the Government’s requirement, the following factor shall be used to evaluate quotes for technical acceptability: Whether the description of the equipment meets the requirements of the performance specifications in Section C. (b) The resultant contract will not have options, the default text of 52.212-2(b) is not applicable. (c) The Government will make an offer to buy to form a contract, based on the selected quote. (End of provision)
  3. So, does this mean that the indemnified contractor is only entitled up to the contract price just like in the case of a T4C termination fee? For example, if a contract, no matter the contract type, is $100,000.00, and the contractor almost finished the work (like, I mean the contractor is literally putting the final nail in the work) and is ready to get paid $100,000.00, and a contractor employee accidently drops a hammer on a subcontractor's toe, and the subcontractor gets injured, there would be almost $0.00 left for the government to cover the cost of the government's responsibility to pay for the subcontractor's medical bills? Or is "availability of appropriations" not the same as "the obligated value of the contract"?
  4. Yeah, my wallet is looking pretty thin at the moment, sell me this here brand new Lexus for $15,000.00 with 0% interest and make the loan term 10 years.
  5. I agree. I remember a recent negotiation where I had to let multiple quoters know that their prices were too high, but I did not explicitly state the decease the government was looking for in terms of explicit dollar amounts, e.g., $200 or $500, I just said this: Quoter 1: Your price is moderately too high, please decrease. Quoter 2: Your price is significantly too high, please decrease. Quoter 1 decreased their price well and ended up getting the award, I don't remember by how much Quoter 2 decreased their price, but in any event, Quoter 1 got the award. I see your point, but just in general, not just in the government, but for businesses as well, I sometimes struggle to understand what "labor cost" means when it comes to performing "extra" tasks, in the sense that if workers are not performing these "extra" tasks, it's not a guarantee that they would spend their time doing something else that is useful to the business, or the government, i.e., the workers might be idle... if the works are idle, then what is the extra cost involved in them doing extra tasks? Is it better to pay workers for being idle?
  6. Interesting. That's better than any dealing I ever had with car dealers, since it makes sense and is a reasonable demand. This one time I looked the car dealer straight in the eye, with a serious face, saying I will buy a $37,000.00 car today if they sell it to me for $27,000.00... they said no, and then I left.
  7. Right, but when all the stars align, the government can end up staring at a document from the GAO stating "the protest is sustained, on the grounds that the government engaged in improper discussions".
  8. I know how to negotiate, thank you, I just like the way "no money no contract" sounds. But I understand your point, well said. This may be a mistake on the contractor's part, for trying to play games, especially when the solicitation asks for best prices on initial quotes.
  9. I am not an expert on indemnification matters in terms of when or why or how the government accepts the responsibility to compensate a contractor for harm or loss as a result of the contractor performing a government contract. I would imagine that only the clauses in the contract apply, so if there is an indemnity clause in the contract, it would have been in the solicitation (market research would have resulted in the government determining that an indemnification clause of some sort, crafted by the government, is appropriate... and I believe there are some standard indemnification clauses in the FAR, and possibly in agency supplements). I believe that any random contractor provided indemnity clause can be ignored, since contractors can't just plug their custom clauses into a contract just because it's in their small print. I guess that's why the government usually informs offerors that they must state any exemptions to the terms of a solicitation in a certain section of their proposal, I usually state in section L that offerors must state exemptions in their introductory letter, and that this is the only place that the government will consider any exemptions, and exemptions stated anywhere else in their proposal (such as in small print on the last page of their price proposal) will be ignored. It's good to know that, at least according to The Analysis Group, LLC B-401726,B-401726.2 that asking a quoter to remove a custom indemnity clause counts as discussions, I would have thought that this would count as a clarification, in terms of "hi, offeror, I noticed you forgot to remove the indemnity clause from your quote, you probably used a template that you use for commercial business to business contracts, please remove this clause, if you don't remove it, the government will ignore it anyways, actually, since the government will ignore it anyways, don't worry about it, I'm not asking you for a revised quote/proposal, I'm just letting you know that your custom indemnity clause will be ignored." For example, if the FAR Changes clause is in a solicitation, and the offeror has "any changes to the contract will be bilateral" in small print somewhere hidden in their proposal, not in the introductory letter's exemptions section, and the government awards a contract, this doesn't mean that the Changes clause gets overridden by the "any changes to the contract will be bilateral" just because that was part of the proposal. If this sounds too simple and doesn't reflect how things work in real life, then the FAR counsel should change the rules to make everything stated above true.
  10. Thanks for the case, C Culham. ... I don't know what's more frightening about The Analysis Group, LLC B-401726,B-401726.2, the fact that it seems to imply that FAR 15 requirements can reach into FAR 8.4 or that a quoter can be found unacceptable for having a hold harmless clause in their quote. I don't know if I ever received a quote with a hold harmless clause, but I have seen quotes with something like "the customer will pay $X amount if they cancel work within a certain number of days", and it's usually towards the end of a price quote, and I always just ignore it and pretend it's not there, since I only ask for a price in the price volume, and everything else is irrelevant. Even if the government awarded to SAIC and ignored the hold harmless clause, wouldn't that clause not apply anyways? What's the point of asking SAIC to remove it if it cannot legally be included in a government contract anyways? Like, why couldn't the government just realize that the hold harmless clause in SAIC's quote was just boilerplate text that they probably include in all of their commercial quotes that they forgot to remove it? I was under the impression that only FAR and agency clauses apply to a contract no matter that a quotation says.
  11. Yes, this is fair, I would document in the file that asking for a $200 discount is more reasonable than asking for a $600 or $5,000 discount, so I would argue that the first quoter has a more reasonable chance at award than the other two quoters. Yes, this is fair, I would say that asking for a $600 discount is more reasonable than asking for a $5,000 discount and that the government gave the first quoter a chance to revise their quote also, so essentially the first and second quoters had a reasonable chance of award, while the third quoter did not. But maybe I would say "no money no contract" and ask the end user to add $200 to the requisition and award to the first quoter. This makes sense for really simple requirements, for more complex requirements, it wouldn't be as simple, and use of evaluation factors will turn bargaining into discussions to where the GAO might say something like "well, the government bargained their way into FAR 15 on this one, because their actions sure do look like discussions as described in FAR 15, even though the government used the term "bargain" in the solicitation."
  12. It's difficult to overcome delusions. With FAR 1.102-2(c)(3)'s "All contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same", it's difficult to comprehend how not allowing all offerors/quoters who have a reasonable chance of award a chance to revise their proposal/quote is treating all offerors/quoters fairly. I'm not saying that the government can't wordsmith their way into allowing only one offeror/quoter to revise their proposal/quote, they can, I'm just saying that it's not as easy as "well, we'll just negotiate with one offeror just because we're in FAR 13, even though this offeror has a 95% chance of winning and the rest have 94% chance." Yes, please help.
  13. Thanks for the case, Don. What I would take away from B-281512 is that essentially the government documented in their contract file that United was "not in the competitive range" and I would imagine that if D&D's revised price came to be above $438,098.00 (United's original price) that the government would have allowed United to revise their quote also.
  14. Yes, exactly. SAP is not meant to allow for proposal or quote revisions, if an agency chooses to allow for proposal or quote revisions, they must follow FAR 15.306's (d) and (e) only, but not (a) through (c). In this sense, SAP is still good because of not having to follow FAR 15.306's (a) through (c) AND no required debriefings. And regarding FAR 15.306(d)(3), the "deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond" is not required either, because SAP does not require to have those terms in the solicitation.
  15. Absolutely not, because FAR 13.106-2 is Evaluation of quotations or offers, so it does not matter if it's an RFQ or RFP. I just realized that I titled this thread FAR 13.103-2 instead of FAR 13.106-2, I changed the title to reflect FAR 13.106-2.
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