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Contractor slipped something into price proposal that was not reviewed by technical team


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Long time reader, first time poster.  There is a situation in which a single award IDIQ was solicited competitively for services globally.  Several existing locations were grouped by region and each region would be its own IDIQ. The solicitation required contractors to bid on a list of existing sites to continue service in order to be rated acceptable. There were two vendors in the competition but between the award of the first region and the subsequent regions one competitor withdrew from all regions.  All regions were awarded to the same remaining competitor.  

Recently, the awardee has stated they cannot provide services in two locations that were included in the site list and subsequently priced by the awardee.  Upon review of the proposal, the awardee made a note in the price proposal narrative that services may not be available in those 2 locations due to local restrictions.  The price proposal was not reviewed by the technical team and the price analyst had not notated this anywhere. Award has bee made and orders are underway.   

The proposal was not incorporated into the award. The solicitations stated "In the Technical/Management volume, address the proposed approach to meeting or exceeding the minimum performance or capability requirements of each technical/management subfactor, as well as the risks in the proposed approach in terms of technical/performance, cost, and/or schedule." 

The issue seems to be stemming from the vendor not wanting to work with a local vendor in the areas and probably having to pay more than they thought they would for subcontracting. 

Question: In this scenario, is the contractor still liable for the 2 locations or is the fact that the Government found their proposal to be acceptable and made award relieve contractor responsibility? 

The current argument is they have to perform to the requirements of the PWS and the included award attachments (being the site locations) but this is my first experience with this type of scenario. 

Thanks in advance for your comments.

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@Specialist123 Couple of questions.  Did the contractor sign the award document as well as the CO or was it made via COs unilateral action?  Can you further explain the contractors refusal or reluctance to perform the two sites?  You mentioned the price proposal stated “services may not be available in those 2 locations due to local restrictions” and the apparently the government assumption of “issue seems to be stemming from the vendor not wanting to work with a local vendor in the areas and probably having to pay more than they thought they would for subcontracting.”  The contractors comment seem to imply something more that not wanting to work with a local vendor and/or subcontracting price.

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@formerfed The contractor did not sign as it was a proposal that we accepted.  The service is a telecommunications service, in which various countries may have restrictions on suppliers, equipment, etc., or required special permitting. It is quite common to have 1 telecom carrier win an award but have to work with another telecom carrier that already has a point of presence at the location. In this instance, there is another common U.S. carrier that already exists in these 2 regions. So all the contractor would have to do it get the existing company to do what the two companies are already doing all across the globe, which is partner to provide the service.  The major U.S. telecom carriers are competitors but they also work side by side with each other at thousands of locations. We are not privy to the specifics of this instance for why the existing carrier is now refusing the request from our contractor. If I had to guess then I'd say the existing carrier wants more consideration for the space, bandwidth, etc.  These orders work like any other prime/sub relationship in that the Government has little to no involvement with the sub (local exchange carrier), we deal with the prime. 

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@Specialist123 Without seeing specifics and knowing your contractors position, I think you don’t have those two sites covered as part of your contract. The offeror including qualifications in his price proposal.  His offer was conditioned for those two sites on that basis.  The government made the award on the assumption of no qualifications.  There doesn’t seem to be an agreement.

It seems like you don’t have many choices at this point.  If it were me, I would talk with the contractor and seek a full understanding.  Then I would negotiate a modification to get it all straight. 

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@Specialist123 "Contractor slipped something into"... 

One problem I see in this profession is a lack of reciprocity. If an offeror missed a part of our lengthy, often convoluted RFPs we wouldn't say that we "slipped a requirement in" - we'd say the contractor failed to read the whole RFP and respond properly. RFPs are always imperfect so when an offeror responded with a caveat, it's framed as trying to pull a fast one instead of detailing what they're either able or willing to do?! Why isn't the government equally responsible for reading every word that comes back in a proposal?

This is a global communications contract and it seems like the government and the contractor didn't even talk about what was requested and what was proposed to ensure both parties were on the same page. That is no way to do business.

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5 hours ago, Matthew Fleharty said:

@Specialist123 "Contractor slipped something into"... 

One problem I see in this profession is a lack of reciprocity. If an offeror missed a part of our lengthy, often convoluted RFPs we wouldn't say that we "slipped a requirement in" - we'd say the contractor failed to read the whole RFP and respond properly. RFPs are always imperfect so when an offeror responded with a caveat, it's framed as trying to pull a fast one instead of detailing what they're either able or willing to do?! Why isn't the government equally responsible for reading every word that comes back in a proposal?

This is a global communications contract and it seems like the government and the contractor didn't even talk about what was requested and what was proposed to ensure both parties were on the same page. That is no way to do business.

Here here!!!! Totally agree with you!! Government had the responsibility to evaluate the entire proposal and to coordinate the reviews. The price team was remiss in my opinion. 

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On 5/12/2023 at 8:59 AM, Specialist123 said:

Upon review of the proposal, the awardee made a note in the price proposal narrative that services may not be available in those 2 locations due to local restrictions.  The price proposal was not reviewed by the technical team and the price analyst had not notated this anywhere. Award has bee made and orders are underway.   

The proposal was not incorporated into the award. The solicitations stated "In the Technical/Management volume, address the proposed approach to meeting or exceeding the minimum performance or capability requirements of each technical/management subfactor, as well as the risks in the proposed approach in terms of technical/performance, cost, and/or schedule." 

 

On 5/12/2023 at 8:59 AM, Specialist123 said:

Question: In this scenario, is the contractor still liable for the 2 locations or is the fact that the Government found their proposal to be acceptable and made award relieve contractor responsibility? 

@Specialist123 The answer to your question is a matter of contract interpretation. The contract must be interpreted as a whole, taking all parts into consideration. Moreover, industry practice and communications between the parties during and after contract formation may have a bearing on interpretation. See Administration of Government Contracts, 5th ed., Chapter 2.

The fact that the contractor made a statement in its proposal is of interest, but is not determinative. 

No one can provide a reliable answer to your yes or no question based on the extremely limited information you have provided, and more information in this forum will not be of much help. Any answer yes or no answer you get here based on what you have posted or may post in the future will be unjustified and unreliable.

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Thank you all, we are actually working through it with the contractor. This question was more for my FYI. In the future, I do think I will push to have the pricing proposal sent to the tech team after the tech proposal. It is not our practice but I think there is benefit there. I will also check out Administration of Government Contracts, 5th ed., Chapter 2.

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On 5/15/2023 at 4:28 PM, Matthew Fleharty said:

If an offeror missed a part of our lengthy, often convoluted RFPs we wouldn't say that we "slipped a requirement in" - we'd say the contractor failed to read the whole RFP and respond properly.

Spot on.  One of my pet peeves is the way the Government always tries to push its own inability to get its act together off onto the vendor community, whether it's releasing a critical procurement document at 11:59PM so we can count the "day" it was released, or assuming vendors can work all weekend to revise a proposal because of something we forgot to add until the last minute on a procurement that's been slogging along for a year or more.

I'm surprised this doesn't happen more often considering the fact that anyone who can fog a mirror is apparently qualified to be a COR.

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