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PATRICK3

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I have a contract that had 5 proposals submitted for award under a LPTA format. One of the vendors price is extremely low, meaning like a million dollars less than the other competitors. The issue is, this vendor bids on every single solicitation, even if it's not their brand of work and always provide fake emails or Point of Contacts. In order to minimize the risk of a protest, how do we write the evaluation factors to eliminate this vendor. Thanks 

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23 hours ago, PATRICK3 said:

I have a contract that had 5 proposals submitted for award under a LPTA format. One of the vendors price is extremely low, meaning like a million dollars less than the other competitors. The issue is, this vendor bids on every single solicitation, even if it's not their brand of work and always provide fake emails or Point of Contacts. In order to minimize the risk of a protest, how do we write the evaluation factors to eliminate this vendor. Thanks 

It’s too late to write evaluation factors after receipt of proposals. What are your technical factors and requirements for the instant situation?  I would understand if you can’t publicly reveal them. 

What is their performance record?

Did you ask proposers to provide information on recent, relevant experience for the subject work?

What are your specific performance concerns?

Is the firm considered to be “responsible”? 

 Does the technical proposal “pass”?

You could decide to conduct discussions. You can discuss pricing too. Ask to verify pricing and review the scope to see if they understand it. Maybe they made a mistake?

If you can’t reach a point of contact via email and telephonically, you might be able to eliminate the firm. Do you have a lawyer?

For future reference you can write the submission requirements and minimum requirements to address your technical performance concerns…

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Did you mean  the firm “always” provides fake reference points of contact?

If so, if you can’t verify their experience or performance, do they meet your criteria?

 

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46 minutes ago, PATRICK3 said:

In order to minimize the risk of a protest,

The quick thought follow your evaluation factors to the "T" and evaluate all proposals fairly.   Misrepresentation of material facts is usually found to be a sound basis for a poor evaluation.  So move on and evaluate all the proposals as the evaluation factors provide for.   You run the risk of unequal treatment when you start jury rigging the process due to continual bad players.     

Sounds like the "vendor" submits proposals without misrepresentations sometimes and other times the vendor does.   I might consider finding a good opportunity to discuss the matter with the vendor.

 

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In addition to the above comments, if the company in question is the apparently successful offeror based on your evaluation criteria, you can determine the firm to be nonresponsible for three reasons:  ridiculously low price, not their brand of work, and previous instances of fake emails or Point of Contacts.

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4 hours ago, ji20874 said:

you can determine the firm to be nonresponsible for three reasons:  ridiculously low price

I do not believe that a CO may find an offeror to be nonresponsible merely because its price is "ridiculously low." However, if an offeror's price is very low, the CO may investigate the offeror's ability to perform in the face of a prospective loss, and might find the offeror to be financially nonresponsible. An excessively low price, in and of itself, is not grounds for a determination of nonresponsibility.

See FAR 9.104-1(a):

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To be determined responsible, a prospective contractor must-(a) Have adequate financial resources to perform the contract, or the ability to obtain them (see 9.104-3(a));

And see PAE Government Services, Inc., B-407818, March 5, 2012:

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Where there is no relevant evaluation criterion pertaining to price realism, a determination that an offeror's price on a fixed-price contract is too low generally concerns the offeror's responsibility, i.e., the offeror's ability and capacity to perform successfully at its offered price. Flight Safety Servs. Corp., B–403831, B–403831.2, Dec. 9, 2010, 2010 CPD ¶294 at 5. 

See also J.A. Farrington Janitorial Services, B-206875, October 18, 2005:

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[W]here there is no relevant evaluation criterion pertaining to realism or understanding, a determination that an offeror's price on a fixed-price contract is too low generally concerns the offeror's responsibility, i.e., the offeror's ability and capacity to successfully perform the contract at its offered price. 

As indicated, JAF's proposal was not considered for award because its proposed price was considered unreasonably low. However, there was no technical or price evaluation factor under the RFP providing for the evaluation of price realism or the offerors' understanding of the requirements. The price evaluation provided only for the evaluation of the “reasonableness” of the proposed price, that is, whether the price was unreasonably high. Thus, the agency's concern that JAF's price was too low was a matter of the firm's responsibility. Since JAF is a small business, if the Air Force believed that JAF could not satisfactorily perform the contract at its proposed price, it was required to refer this finding of nonresponsibility to the SBA for that agency's review under its certificate of competency procedures. Accordingly, we sustain JAF's protest on this basis.

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I don't think PAE Government Services, Inc., B-407818, fits the OP's circumstances.  Nothing in the PAE decision would stop a nonresposibility determination in the OP circumstances.  Indeed, the GAO affirms in PAE that "a determination that an offeror's price on a fixed-price contract is too low generally concerns the offeror's responsibility, i.e., the offeror's ability and capacity to perform successfully at its offered price."

I also don't think J.A. Farrington Janitorial Services, B-296875, fits.  Like PAE, that case dealt with the evaluation, not a subsequent nonresponsibility determination.  The agency didn't even evaluate the proposal!  Neither of these cases deals with non-responsibility determinations.

Note that in my comment, I wrote, "...if the company in question is the apparently successful offeror based on your evaluation criteria..." -- clearly, the evaluation and tentative selection has to occur before the question of responsibility or non responsibility even arises.

But if the evaluation has been completed, and the company in question is the apparently successful offeror, the contracting officer can make "a determination that an offeror's price on a fixed-price contract is too low" (note that the GAO uses the words "too low"), along with the other reasons I cited.  The OP's attorney can help him or her draft the wording to make it stick -- all three reasons will need to be fleshed out.

But most likely, I am afraid that the OP will be afraid to do a non-responsibility determination even with the facts presented in the OP -- I hope I am wrong, but it seems contracting officers and their masters are becoming more timid as time passes.

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40 minutes ago, ji20874 said:

I don't think PAE Government Services, Inc., B-407818, fits the OP's circumstances.

I don't care about the OP or his/her circumstances. I wrote in response to your comment:

7 hours ago, ji20874 said:

In addition to the above comments, if the company in question is the apparently successful offeror based on your evaluation criteria, you can determine the firm to be nonresponsible for three reasons:  ridiculously low price...

I say that if the CO determines that the offeror's price is "too low," in the sense of "not enough to cover the cost of performance," the CO can then inquire as to whether the offeror has the financial resources necessary to perform. If the CO determines that it does not, then the CO may determine the offeror to be nonresponsible. But if the offeror can perform at a loss, then the CO may not determine it to be nonresponsible on the basis of the low price alone.

My point is that proposing a price that is "too low," i.e., not enough to cover the cost, is not, in and of itself, disqualifying. A company may have sound business reasons to perform a contract at a loss. I believe that the cases I cited show that the GAO believes that the only way to reject an offeror proposing a price that is "too low" is to find it nonresponsible on some basis, one basis being financial incapacity.

Do you disagree?

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33 minutes ago, Vern Edwards said:

I don't care about the OP or his/her circumstances.

I do care about the OP's circumstance, and am trying to be helpful to the OP.  A determination that an offeror's price is too low is a valid basis for a determination of nonresponsibility once the apparently successful offeror has been selected.  Of course, it goes without saying that "too low" will have to be supported in the determination -- I agree that your example from case law may be helpful to the OP, notwithstanding your lack of care for the OP or his or her circumstance.

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18 hours ago, ji20874 said:

A determination that an offeror's price is too low is a valid basis for a determination of nonresponsibility once the apparently successful offeror has been selected.

I disagree. A CO cannot declare a prospectively successful offeror to be nonresponsible solely because he or she thinks the offeror's price is "too low." A company might have any number of legitimate reasons for taking the contract at a price below its cost, and price realism is not among the responsibility standards in FAR 9.104.

Assuming that price realism is not an evaluation factor, a CO who wants to reject an offer because he or she thinks the price is "too low," i.e., less than the cost of performance, must first determine that the prospectively successful offeror would be unable to perform at that price because it lacks sufficient cash or credit to perform at a loss. Thus, it is financially nonresponsible. See FAR 9.104-1(a).

Also:

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[O]ur decisions have noted that the submission of even a “below-cost” price in the context of a fixed-price competitively awarded contract is not, by itself, improper. See Arctic Slope World Servs., Inc., B–284481, B–284481.2, Apr. 27, 2000, 2000 CPD ¶75 at 13. For this reason, offerors competing for award of a fixed-price contract must be given reasonable notice where a business decision to submit a low-priced proposal may be considered as reflecting on their understanding or the risk associated with their proposal.

STG LLC-Reconsideration, B-418490.3, Dec. 8, 2021. The GAO has said that 78 times since 1970.

If there is nothing inherently improper in proposing a below-cost price, then a CO cannot declare an offeror to be nonresponsible solely because the offeror proposed such a price. There has to be more to it than that, such as the inability to perform at a loss due to lack of cash or credit. The CO must determine that the offeror is nonresponsible because (1) its price is below cost ("too low") and (2) it lacks the financial wherewithal to perform at the projected loss.

What you appear to have proposed𑁋determining an offeror to be nonresponsible solely because its price is "too low"𑁋is not consistent with the definition of "responsible prospective contractor," FAR 9.104, and bid protest case law. Maybe that's not what you mean.

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23 hours ago, joel hoffman said:

What are your technical factors and requirements for the instant situation?  I would understand if you can’t publicly reveal them. 

What is their performance record?

Did you ask proposers to provide information on recent, relevant experience for the subject work?

What are your specific performance concerns?

Is the firm considered to be “responsible”? 

 Does the technical proposal “pass”?

Do you have a lawyer?

 

22 hours ago, Vern Edwards said:

Questions:

1. Is this acquisition being conducted pursuant to FAR Subpart 15.3, Source Selection?

2. Have you determined that the proposal is technically acceptable?

 

23 hours ago, joel hoffman said:

Did you mean  the firm “always” provides fake reference points of contact?

If so, if you can’t verify their experience or performance, do they meet your criteria?

 

Apparently, the original poster isnt able  to clarify his post.

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I apologize @Vern Edwardsand @joel hoffmanas I was dealing with a family situation. 

 

1. Yes, it's being conducted under 15.3

2. We found this specific vendor technically unacceptable, but only base on their information not being able to be verified and not so much on their price. I spoke with legal but haven't gotten a response back as of yet.

 

The also have another situation with this vendor as well, as they have another contract with us as well. The issue is, we've had numerous exchanges with this vendor which were documented showing their lack of ability to follow the terms in the contract, but didn't formally do a cure notice. Is that enough information to remove them from source selection? Thanks again for the great discussion. 

 

 

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3 hours ago, PATRICK3 said:

. We found this specific vendor technically unacceptable, but only base on their information not being able to be verified and not so much on their price. I spoke with legal but haven't gotten a response back as of yet.

Patrick, thanks for responding.. Sorry about you family situation. Regarding unverifiable information, is it because of fake reference points of contact and/or their email addresses to verify acceptable experience and performance?

If you don’t conduct discussions and this information is required to be provided in order to verify acceptable experience and/or performance, it would seem that the proposal is technically unacceptable. However, It depends upon what you required and what you said you need it for.

I suppose your legal office is reviewing this.

 

3 hours ago, PATRICK3 said:

he issue is, we've had numerous exchanges with this vendor which were documented showing their lack of ability to follow the terms in the contract, but didn't formally do a cure notice. Is that enough information to remove them from source selection? Thanks again for the great discussion. 

 

Depends - if performance on the other contract is determined to be unsatisfactory, and is ongoing contract, it should be clearly communicated to the firm and well documented.

If the other contract is completed and the firm’s performance rating is acceptable- I don’t think you can determine them to be nonresponsible or technically disqualify them for performance on that contract. Regarding responsibility, you have to refer them to the SBA for COC responsibility determination (19.602-1 Referral), correct?

The Devil is in the details, which we don’t know.

EDIT: “Disqualify” is an undefined term…

Edited by joel hoffman
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2 hours ago, PATRICK3 said:

Based on 9.104-1, it seems as though I could use this, but what's your thoughts. Thanks again

I presume you mean: Use some information to make a determination of nonresponsibility.

A key question: Is the vendor a small business? If so, a determination of nonresponsibility would have to be referred to the SBA. So you should ask yourself whether they would agree with your determination. I would expect them to be more objective than your office.

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Hey @joel hoffmanand thanks for the kind words. The contract is currently ongoing. so maybe we can use that, as long as the information is documented in the file for the current contract. 

 

Legal is reviewing it, but even if we hold discussions and eliminate that vendor based on their lack of information, they still wouldn't be included. That's still fair to do, right? 

 

Regarding the other contractor that's currently going through a contract that we're not happy with, I have a hard time awarding them a new contract, when we know that they aren't meeting the standards of the current one. Just doesn't seem right for the government to do. 

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By "that information," do you mean:

3 hours ago, PATRICK3 said:

The also have another situation with this vendor as well, as they have another contract with us as well. The issue is, we've had numerous exchanges with this vendor which were documented showing their lack of ability to follow the terms in the contract, but didn't formally do a cure notice. Is that enough information to remove them from source selection?

 

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Wnen determining an offeror's responsibility, you do so with respect to the present time. The issue is whether they presently meet the standards in FAR 9.104. You can consider information about past performance, but only if it is pertinent to the present time. The fact that they have not performed well in the past may not be enough to support a determination of nonresponsibility..

I cannot give you any advice about whether your office's experiences with the offeror would be enough to support a determination of nonresponsibility. If you are not sure, then you should consult with someone who knows what specific facts you have and can advise you as to whether those facts would be pertinent and sufficient.

Responsibility is a big and sometimes complicated matter.

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