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Is the Q&A considered part of the Addendum to FAR 52.212-1?


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If there is no instruction that one should include something in an offer (e.g., letters of commitment for the key personnel), but later the published Q&A in response to a vendor question indicates offerors should include that, can a proposal be found unacceptable even though the instruction is missing from the actual Addendum to FAR 52.212-1? That is, is the Q&A considered part of the Addendum to FAR 52.212-1 when it is not explicitly included by reference in that Addendum? In the example of letter of commitments, this is hardly only a "clarification", but a change/addition to the instructions provided in the Addendum to FAR 52.212-1.

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35 minutes ago, TyroneSlothrop said:

If there is no instruction that one should include something in an offer (e.g., letters of commitment for the key personnel), but later the published Q&A in response to a vendor question indicates offerors should include that, can a proposal be found unacceptable even though the instruction is missing from the actual Addendum to FAR 52.212-1? That is, is the Q&A considered part of the Addendum to FAR 52.212-1 when it is not explicitly included by reference in that Addendum? In the example of letter of commitments, this is hardly only a "clarification", but a change/addition to the instructions provided in the Addendum to FAR 52.212-1.

You have asked two questions:

  1. can a proposal be found unacceptable even though the instruction is missing from the actual Addendum to FAR 52.212-1?
  2. is the Q&A considered part of the Addendum to FAR 52.212-1 when it is not explicitly included by reference in that Addendum?

Those are yes or no questions. The answers to those questions depend on too many variables to permit a simple yes or no response based on the scant information you have provided. A knowledgeable person would need an extensive account of specific facts, including the the text of the solicitation, the text of the question and of the answer, and the complete text of the amendment in which the Q&A appeared to venture a responsible answer.

I cannot help you.

Others at this site may ask you a number of questions.

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3 hours ago, TyroneSlothrop said:

If there is no instruction that one should include something in an offer (e.g., letters of commitment for the key personnel), but later the published Q&A in response to a vendor question indicates offerors should include that, can a proposal be found unacceptable even though the instruction is missing from the actual Addendum to FAR 52.212-1? That is, is the Q&A considered part of the Addendum to FAR 52.212-1 when it is not explicitly included by reference in that Addendum? In the example of letter of commitments, this is hardly only a "clarification", but a change/addition to the instructions provided in the Addendum to FAR 52.212-1.

This might or might not help you evaluate your specific situation.  https://www.gao.gov/products/b-407352

"EECS argues that the ASHRAE Level II requirement cannot properly be imposed during the evaluation here because it was provided in the Q&A on July 30, rather than an amendment to the RFQ. As our Office has held, however, information disseminated during the course of a procurement that is in writing, signed by the contracting officer, and provided to all vendors, contains all of the essential elements of an amendment--even where not designated as an amendment--and is sufficient to operate as such. Linguistic Sys., Inc., B-296221, June 1, 2005, 2005 CPD ¶ 104 at 2. The Q&A here meets all of the essential elements of an amendment. Thus, in our view, the ASHRAE requirements have been added to this solicitation."

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1 hour ago, C Culham said:

As our Office has held, however, information disseminated during the course of a procurement that is in writing, signed by the contracting officer, and provided to all vendors, contains all of the essential elements of an amendment--even where not designated as an amendment--and is sufficient to operate as such.

Emphasis added.

The interesting thing about that quote is that, in my experience, neither RFPs nor RFP amendments are signed by the contracting officer. One of the first things I was taught is that the CO need not sign those documents. The RFPs and amendments that I see today on SAM.gov show no indication of having been signed.

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The instructions on the back of Standard Form 30, Amendment of Solicitation/Modification of Contract, paragraph (i), states:

Quote

Item 16B. The contracting officer's signature is not required on solicitation amendments. The contracting officer's signature is normally affixed last on supplemental agreements.

Item 16B is the space for the contracting officer's signature.

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13 hours ago, Vern Edwards said:

The interesting thing

Well the rock started rolling in 1994 by references provided in related decisions.   While one could wonder about the CO signature thing, what I picked up on is reading the solicitation and its communications including Q&A's as a whole.   My intent per my post was to give something not to hang a hat on but to hopefully have the OP do research based on the instant facts of their situation and then come to a conclusion of whether the Q&A's are or are not read as a part of the solicitation.  Of course, the best avenue to pose the question is with the CO, in writing, but the question does provide for interesting discussion.  

Are the essential elements any combination or must it be all?

https://www.gao.gov/products/b-256921 - 1994

"Although amendment No. 0002 included the questions and answers referenced above, it did not remove FAR Sec. 52.215-16, Alternate III, from the solicitation, or change the express terms of this clause. Therefore, the questions and answers must be considered in the context of the RFP which included FAR Sec. 52.216-15, Alternate III. Considered in this context, the questions and answers can only reasonably be considered to mean that while award on the basis of initial proposals was likely, the possibility of written discussions and a BAFO request existed. Stabro's interpretation of the questions and answers is unreasonable because it reads out of the RFP the FAR Sec. 52.215-16, Alternate III, clause. Simply put, we do not agree with the protester that the questions and answers, when considered in light of the solicitation read as a whole, precluded the agency from making award on initial proposals and required that the agency conduct discussions."

https://www.gao.gov/products/b-256921 - 2005

LSI maintains that the "Questions and Answers" did not constitute an amendment, and that its posting on GSA's website therefore had no legal effect, since it was not issued on the appropriate form as a specific amendment, and did not require an acknowledgment. Protester's Submission, May 19, 2005, at 1. However, information disseminated during the course of a procurement that is in writing, signed by the contracting officer, and provided to all vendors, meets all of the essential elements of an amendment and--even where not designated as an amendment--is sufficient to operate as such. See Stabro Labs., Inc. , B-256921, Aug. 8, 1994, 94-2 CPD 66 at 4 n.4. The "Questions and Answers" posting met this standard, and therefore became a part of the solicitation. It follows that the information in the posting was sufficient to establish, and to put LSI on notice, that 12 o'clock noon was the intended closing time. 

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@C CulhamI know from conversations that some COs have signed amendments when amendments were printed and mailed, erroneously thinking that they had to. The GAO decisions show that some COs have done so. I have not seen a signed amendment. I don't know how a CO would sign an amendment posted to SAM.gov. Perhaps some kind of electronic signature.

FAR no longer requires that COs issue Q&A amendments. (It did prior to the 1997 Rewrite.) If the CO were to answer questions in a letter to offerors I can see how he or she might sign the letter, which I think the GAO would treat as an amendment.

I feel sorry for offerors. It is exceedingly difficult to get a CO on the phone these days to clear up confusion. An email might work, if there is time to send one and receive an answer before having to submit a proposal.

Doing business with the government is not for the weak of spirit.

In the case of the OP, TyroneSlothrop: I hope he or she forgives me, but it seems a no-brainer to attach letters of commitment to key personnel resumes, instruction or no instruction. How could it hurt?

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21 hours ago, TyroneSlothrop said:

If there is no instruction that one should include something in an offer (e.g., letters of commitment for the key personnel),

If you don’t mind me asking, please quote the solicitation language, such as solicitation instructions and any evaluation criteria in the solicitation regarding demonstration of commitment for key personnel. Thanks.

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2 hours ago, Vern Edwards said:

I feel sorry for offerors. It is exceedingly difficult to get a CO on the phone these days to clear up confusion. An email might work, if there is time to send one and receive an answer before having to submit a proposal.

So true.  The company I worked for did numerous assessments of contracting offices, usually at the request of SPEs or senior management.  One major complaint of both program offices and industry is the lack of timely communications with COs.  I think two reasons exist for that - a general risk adverse atmosphere where COs are afraid of making errors and the need for supervisors, policy and procurement management, and legal to be involved with everything involving interpretations or decisions. So COs just don’t bother

The number of experienced, knowledgeable and confident COs that can timely respond on their own are fewer every day.

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Just now, formerfed said:

The number of experienced, knowledgeable and confident COs that can timely respond on their own are fewer every day.

I think that rule complexity and risk aversion are part of it. The protest system does not help.

I think another part of it is that COs must handle too many administrative tasks that are not directly related to the conduct of business and are too busy to "talk." Moreover, COs receive no training in how to talk to anxious, confused, distrustful, and sometimes annoyed or angry citizens.

Some COs know that they don't really know and understand the rules well and are anxious about being asked a question they won't be able to answer correctly.

I also think that many COs think of the themselves as government employees or government "officials" conducting a government procedure, rather than as business persons engaged in dealmaking.

 

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5 hours ago, Vern Edwards said:

I think that rule complexity and risk aversion are part of it. The protest system does not help.

I think another part of it is that COs must handle too many administrative tasks that are not directly related to the conduct of business and are too busy to "talk." Moreover, COs receive no training in how to talk to anxious, confused, distrustful, and sometimes annoyed or angry citizens.

Some COs know that they don't really know and understand the rules well and are anxious about being asked a question they won't be able to answer correctly.

I also think that many COs think of the themselves as government employees or government "officials" conducting a government procedure, rather than as business persons engaged in dealmaking.

 

These are really accurate descriptions of the people I’ve encountered in my past 15 years of 1102 work.

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17 hours ago, joel hoffman said:

If you don’t mind me asking, please quote the solicitation language, such as solicitation instructions and any evaluation criteria in the solicitation regarding demonstration of commitment for key personnel. Thanks.

Thanks for asking. In the case of this particular over-$10M civilian agency delivery order under a GWAC, the solicitation instructions were in a standalone document, "Instructions to Offerors and Evaluation Criteria", separate from the Terms and Conditions, and other RFP material. In this instructions document, it was stated:

SUBMISSION INSTRUCTIONS

1. Proposal Submission

Offerors shall submit proposals in accordance with the following two phases:

Phase One:

No later than XXXXXXXX (Transmittal/Cover Letter including Subcontractors/Teaming and Oral Presentation slides including Key Personnel resumes) – Electronically to the Contract Specialist, XXXXXXXX and Contracting Officer, XXXXXXXX.

Then under "Phase One Instructions" it stated:

Factor 1: Oral Presentation

limit of 25 Oral Presentation slides, not including resumes; however, each Key Personnel resume is limited to 2 pages

Volume I: Phase One Technical Submission

Factor 1: Oral Presentation

The offeror shall provide an oral presentation, virtually via Zoom, of their high-level technical approach for implementing the statement of work XXXXXXXX, with key personnel presenting. The Oral Presentation slides shall be submitted to the Contracting Officer and Contract Specialist on the due date of Phase One. Each oral presentation will be limited to 25 oral presentation slides and 60 minutes duration (45 minutes for the offeror presentation and 15 minutes for Q&A between the offeror and Government). The Government will contact offerors soon after the receipt of Phase One to schedule the oral presentation.

All recording of the offeror’s presentation shall be performed by CMS. No other recordings are permitted.

Under Phase One Evaluation Factor, it stated:

Factor 1: Oral Presentation: XXXXXXXX will evaluate:

...

  • Key personnel proposed to determine if they have the skills, experience, and/or certification necessary to successfully perform the role they are proposed for. Key positions not filled with a full-time person will be evaluated as deficient and, therefore not be eligible for award.

At the end of the instructions document were printed the following lines:

Sincerely,

//Signed by//

XXXXXXXX

Contracting Officer

Attachments:

Attachment 1 – XXXXXXXX SOW

Attachment 2 – Terms and Conditions

Attachment 3 – Contractor Offeror Conflict of Interest Template

Attachment 4 – Questions and Responses

Attachment 5 – XXXXXXXX template

Attachment 6 – XXXXXXXX

In these ending lines, besides the "//Signed by//" and the printed name of the CO, there was neither ink nor digital signature.

The only amendment that was posted was accompanied by just the 4 words, "Final RFP for XXXXXXXX", and then had two attachments: the aforementioned "Instructions to Offerors and Evaluation Criteria" and "Attachment 4 - Questions and Responses". There was no signature, digital or ink, associated with this 4-word line, and neither of the attachments was on an SF form.

The former document is as described above.

The latter document contained the header line, "Attachment 4 - Questions and Responses", followed by the actual Q&A. This Q&A document was unsigned and was not on an SF form, signed or otherwise.

In the Q&A, there were two references to a letter of intent as follows:

Q: Can key person come from Sub-contractor? Is key person need to be current employee of the firm? Can the Key Person be with a signed letter of commitment?
A: At a minimum, the XXXXXXXX Key Personnel position must come from the prime contractor. Key personnel may be proposed if there is a signed letter of intent.

Q: Regarding this statement -- "Key positions not filled with a full-time person will be evaluated as deficient and, therefore not be eligible for award." Does the Key Person has to be current employee of the firm? Can the Key Person be considered future employee upon award with a signed letter of commitment?
A: At a minimum, the XXXXXXXX Key Personnel position must come from the prime contractor. Key personnel may be proposed if there is a signed letter of intent.

As to why letters of intent weren't automatically included, in short, it was because of the two page limitation for resumes. There is a line of thinking that says anything which was not requested in a solicitation should fit within the page limitation of something which is requested, or risk non-compliance with solicitation page limitations. For example, NASA is known for determining non-responsiveness on this basis, and protests have been denied for offerors to NASA for solicitations which included extra unrequested material the exceeded page limitations, on the basis that the material was not requested and the page limitations were clear. In the case of the solicitation referenced here, that line of thinking would suggest that a letter of intent not requested in the instructions should nonetheless fit within the two page limitation of the resume that was requested. A resume plus a letter of intent, all within 2 pages would have been tough.

A further note- What might also be relevant is that during the recorded oral presentation, where all the bid key personnel were required by the solicitation to be present, the CO did ask during the 15-minute Q&A if the key personnel were available full-time, and in the presence of those key personnel, an unequivocal affirmative answer was given. The evaluation factor identified above, does not state that only the submitted written material would be evaluated, so in what was evaluated (i.e., the entire oral presentation which contained both recorded video/oral material and written material) information was in fact given concerning the commitment/intent of the key personnel, although it hadn't taken the form of a written "letter of intent."

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Thanks, Tyrone. My interpretation of the key personnel requirement was that they have to be prime contractor employees. If they aren’t current employees, the offeror would have to provide signed letters of intent. There were two separate Q&A’s clarifying that. And the Q&A’s were prominently included in attachment 4 of the amendment described as “Final RFP for XXXXXXX”

On 3/26/2023 at 4:36 AM, TyroneSlothrop said:

The only amendment that was posted was accompanied by just the 4 words, "Final RFP for XXXXXXXX", and then had two attachments: the aforementioned "Instructions to Offerors and Evaluation Criteria" and "Attachment 4 - Questions and Responses".

I can see your question concerning a two page limit for the resume, if it included a letter of intent.

However, I didn’t read into the submission requirement that it would be part of the two page limit or considered part of the resume.  It looked like a separate requirement, as clarified twice in Attachment 4.

“Key personnel may be proposed if there is a signed letter of intent.”

Why would a resume for a proposed employee be limited to one page plus a signed letter of intent? That doesn’t seem like a reasonable interpretation to me. Because the submission requirement and evaluation standard would be different and unequal for current vs proposed employees.

On 3/26/2023 at 4:36 AM, TyroneSlothrop said:

Key personnel proposed to determine if they have the skills, experience, and/or certification necessary to successfully perform the role they are proposed for. Key positions not filled with a full-time person will be evaluated as deficient and, therefore not be eligible for award.

An oral commitment in response to a question isn’t the same as a “signed letter of intent”. You said that CO asked if they “were available full-time”, not whether prospective employees would commit to the company if awarded the contract.

In Re-reading your statement written in the passive voice, just now, it isn’t clear to me if each person separately responded affirmatively or if a company spokesperson answered the question “in the presence of those key personnel”.

 

On 3/26/2023 at 4:36 AM, TyroneSlothrop said:

CO did ask during the 15-minute Q&A if the key personnel were available full-time, and in the presence of those key personnel, an unequivocal affirmative answer was given.

EDIT - ADD:

Now that the situation is clearer, Tyrone’s initial assertion** appears to be without merit. The solicitation was amended to include the Q &A’s  in attachment 4.

They clearly required letters of commitment for key personnel who aren’t current employees.

Tyrone’s company disregarded the instruction and can’t assume that a vague question and answer during oral presentation would otherwise meet the intent of the required, signed letters of intent.

**“On 3/24/2023 at 1:40 PM, TyroneSlothrop said: “If there is no instruction that one should include something in an offer (e.g., letters of commitment for the key personnel)…”

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6 hours ago, TyroneSlothrop said:

Sincerely,

//Signed by//

XXXXXXXX

Contracting Officer

 

On 3/25/2023 at 7:43 AM, Vern Edwards said:

In the case of the OP, TyroneSlothrop: I hope he or she forgives me, but it seems a no-brainer to attach letters of commitment to key personnel resumes, instruction or no instruction. How could it hurt?

Really a no brainer in my humble opinion ( and it appears that of the GAO as well) now!

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6 hours ago, joel hoffman said:

I never put much stock in letters of intent.

6 hours ago, joel hoffman said:

We also recognized that proposed key personnel often move on or sometimes aren’t available if the award takes a long time.

 

Maybe at some point in the past, those letters served a more meaningful purpose.  But today with employees switching jobs very frequently as well as common use of independent individual contractors (1099 type) taking on work on a temporary or short term gig,  I doubt those letters are as beneficial and useful now.

Younger people especially don’t see company loyalty as a major reason to stay.  401Ks are transportable and pensions don’t exist now for all practical purposes.  Whether companies like it or not, that’s the reality.  Companies have a difficult time retaining excellent employees.

Then there’s the point Joel raised about agencies taking a long time to make awards and proposed staff aren’t available or move on.  So what does the government do when award is announced 6, 9, 12 months after proposal submission and the selected contractor says many key personnel aren’t available, letters of commitment or not?

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Oops, formerfed. This is the link to the previous thread concerning substitutions of key personnel.

http://www.wifcon.com/discussion/index.php?/topic/8177-letters-of-commitment-for-key-personnel/

But it isn’t relevant to the questions in the Original post.

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This thread has gone badly off course.

Here are the original questions:

On 3/24/2023 at 11:40 AM, TyroneSlothrop said:

[1] If there is no instruction that one should include something in an offer (e.g., letters of commitment for the key personnel), but later the published Q&A in response to a vendor question indicates offerors should include that, can a proposal be found unacceptable even though the instruction is missing from the actual Addendum to FAR 52.212-1? [2] That is, is the Q&A considered part of the Addendum to FAR 52.212-1 when it is not explicitly included by reference in that Addendum?

The first response, which was mine, stated those questions could not be answered on the basis of the information provided. But that did not prevent typical Wifcon speculation devoid of information but full of digressions, mainly by  👉 Joel.

The one person who might have been able to offer useful guidance, the late Steven Feldman, provides some in his massive work, Government Contract Awards: Negotiation and Sealed Bidding, Chapter 7, Solicitation Processes, § 7.8, Form of amendment, Footnote 2. But you cannot read it unless you have access to Westlaw.

Quote

Questions and answers provided offerors do not always serve to modify or amend a solicitation. However, in a substantial number of bid protests, a clarifying response to an offeror's question, or other information provided to all offerors, has been found to amend or modify a particular solicitation provision. HP Enterprise Services, LLC v. U.S., 104 Fed. Cl. 230 (2012).

Although it did not appear that the agency incorporated its answers to vendor questions into the solicitation, written information, such as questions/answers, disseminated by the contracting officer during the course of the procurement to all vendors, operates as an amendment to the solicitation. Solutions by Design Alliant-JV, LLC, B-408058.4, 2013 CPD ¶ 251 (Comp. Gen. 2013).

Agency responses during the question-and-answer process, when circulated to all offerors as an attachment to an amendment signed by the contracting officer, constitute an amendment of the solicitation. York Telecom Corporation v. United States, 130 Fed. Cl. 186 (2017); Shertech Pharmacy Piedmont, LLC, Comp. Gen. Dec. B-413945, 2016 CPD 325 (questions and answers deemed part of the solicitation by way of amendment). Note also that the Contracting Officer may disclaim that the letter, e-mail, or other document constitutes an amendment.

Shertech Pharmacy Piedmont, LLC, Comp. Gen. Dec. B-41394, 2016 CPD 325 (questions and answers deemed part of the solicitation by way of amendment).

 

 

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Yes, it’s been shown in this thread  that the Q&A’s, which were in an attachment to an amendment, required submission of signed letters of commitment for proposed key personnel who aren’t current employees.

And yes, as Vern said, “those questions could not be answered on the basis of the information provided.”

On 3/24/2023 at 1:40 PM,  TyroneSlothrop said: 

“If there is no instruction that one should include something in an offer (e.g., letters of commitment for the key personnel)…”

That’s why I asked Tyrone:

On 3/25/2023 at 11:01 AM, joel hoffman said:

If you don’t mind me asking, please quote the solicitation language, such as solicitation instructions and any evaluation criteria in the solicitation regarding demonstration of commitment for key personnel. Thanks.

Tyrone said that the Q&A, which stated the requirement” was included in the “Questions and Responses” , attachment 4 to an unsigned “amendment”. 

Tyrone said that they saw the requirement but didn’t include signed letters of intent because they thought that it would limit the resume to one page instead of two.

That doesn’t make sense plus it doesn’t justify ignoring the stated requirement for signed letters of intent.

Tyrone then suggested that the failure to submit signed letters of intent should be overcome  by the company orally affirming the CO’s question “in the presence of the key personnel”, during a 15 minute oral presentation, “if the key personnel were available full-time” . That’s not the same as signed letters of intent for non-current employees and doesn’t even appear to address what the letters of intent are for.

On 3/26/2023 at 4:36 AM, TyroneSlothrop said:

A further note- What might also be relevant is that during the recorded oral presentation, where all the bid key personnel were required by the solicitation to be present, the CO did ask during the 15-minute Q&A if the key personnel were available full-time, and in the presence of those key personnel, an unequivocal affirmative answer was given. The evaluation factor identified above, does not state that only the submitted written material would be evaluated, so in what was evaluated (i.e., the entire oral presentation which contained both recorded video/oral material and written material) information was in fact given concerning the commitment/intent of the key personnel, although it hadn't taken the form of a written "letter of intent."


I shouldn’t have digressed after that concerning my personal opinion that letters of intent don’t really provide much value. They were nonetheless a requirement for proposed key personnel who are non-current employees of the company.

That has nothing to do with Tyrone’s questions and the apparent lack of merit of his company’s position. I will delete those subsequent posts.

I will also say that I wasn’t the only respondent to digress from the question at hand.

Opinions concerning the communications skills and abilities of government contracting personnel weren’t necessary or relevant to this situation, either. Here, the government stated the requirement that Tyrone’s company disregarded. 

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  • 1 month later...

I wanted to come back and give a brief "after action" report since I don't think enough participants come back after they post their questions to say what happened and where the advice given went.

So a timely GAO protest was filed on the basis of the specific facts that I wrote about here, no more and no less. Two attorneys filed for appearance for the Agency. Then approximately halfway through the timeframe allotted for the Agency to prepare an agency report, the Agency filed for the protest to be dismissed on the basis of corrective action by the Agency--they agreed with the protest's claim that based on the specific facts that I had written about above on 3/26, the Q&A's instruction to include letters of commitment without a corresponding change to the actual solicitation was precatory and not mandatory--and the agency decided that the offer should be re-evaluated without the requirement for letters of commitment.

I know there appears to be some tension between some of the contributors here when answering questions, but personally I think this is only natural when you get a group of excellent professionals in their field together. The same would be true if you put a a tricky diagnosis or prognosis question to a (virtual) room of medical specialists. The commenters above all fall into this category in the field of being "FAR doctors" so I applaud all your discussion and feedback you gave in this particular case and encourage you to keep contributing your diagnoses and prognoses on other discussions, and know your comments do go somewhere useful. 👏

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