Sam101 Posted February 12 Report Share Posted February 12 Hi, so, I'm probably thinking too hard about this, but actions of an agency in conducting FAR 13 procurements have more weight than what it says in the solicitation regarding discussions, correct? You see, I was reading this thread: In this thread, this was one of the comments: Quote Now, suppose that you work for an agency and want to buy a commercial device. There are several manufacturers and retailers. You send out an RFQ and ask for quotes. Three sellers respond and all three quotes are acceptable, but one quote is clearly better than the other quotes in every respect -- product, delivery, and service. That quote would be even better if the quoter would make one change to its service terms. You want to ask the quoter to make the change. You're going to buy from that seller no matter what the answer, but you'd like to try to get a little more. Why would you talk to the other two? What would be the point? Everything in this page: https://www.wifcon.com/pd13_1062.htm, indicates that if an agency's actions allow proposal/quote revisions, "it is the actions of the parties that determines whether discussions have been held" - Priority One Servs., Inc., B‑288836, B‑288836.2, Dec. 17, 2001, 2002. So, I believe that even if a FAR 13 solicitation says "the agency may allow any quoter to revise its quotation but this will not be considered formal discussions as in FAR 15 in any way no matter what", that an agency still can't do "no matter what", i.e., an agency can still not form a formal competitive range (i.e., send "you are not in the competitive range" letters), but must still document the file as to why the agency is allowing one or more quoters to change their quotes, and why the agency is choosing not to allow all quoters to change their quote, and that explanation better be good, so the explanation will pretty much look similar to a formal competitive range determination explanation. Is my understanding correct? Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 12 Report Share Posted February 12 I thought that the earlier thread was pretty clear. Per the explanations and conditions in the earlier thread, If you want to negotiate commercial terms or prices with one or more quoters that are reasonably competitive, you can do that. Remember, a “quote”, is not an “offer”. The government can negotiate with one or more quoters and can make an “offer” or an offer to award to a quoter. Why call it “discussions” if you don’t have to? And yes, document the file. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 12 Report Share Posted February 12 Synonyms of negotiate arrange. conclude. discuss. bargain. concert. deal. haggle. settle (on or upon) https://www.merriam-webster.com/thesaurus/negotiate Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 12 Author Report Share Posted February 12 4 hours ago, joel hoffman said: Why call it “discussions” if you don’t have to? Right, I hear that all the time... and I'm still trying to figure out my thought process for why I even wanted to initiate this thread... but I guess I'm struggling with the concept of "call it "allow offerors/quoters to revise their proposals/quotes" instead of discussions when using FAR 13" when the end result is the same... i.e., calling it "not discussions" does not magically make it so that the agency does not have to: 1) Make sure that these "not discussions" are meaningful; and 2) Make sure that the agency allows all offerors/quoters who have a reasonable chance of award an opportunity to revise their proposal/quote. So, my point is this: why spend time trying to find a synonym for "negotiate" or "discussions" when the end result is the same (the only difference is sending the exclusion from competitive range letter)? I understand the convention of not using the term "discussions" in FAR 13, but I don't understand why it's a convention, why can't it be called "FAR 13 Discussions"? Quote Link to comment Share on other sites More sharing options...
ji20874 Posted February 12 Report Share Posted February 12 Yeah, I thought the linked thread was pretty clear, too. Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 12 Report Share Posted February 12 1 hour ago, Sam101 said: I understand the convention of not using the term "discussions" in FAR 13, but I don't understand why it's a convention, why can't it be called "FAR 13 Discussions"? Because you are still referring to the term “discussions” which is formally detailed in Part 15. Call it anything you want to. I recommend one of the synonyms. I like “bargaining” . bargaining implies the ability to give-and-take. Quote Link to comment Share on other sites More sharing options...
Don Mansfield Posted February 12 Report Share Posted February 12 1 hour ago, Sam101 said: ., calling it "not discussions" does not magically make it so that the agency does not have to: 1) Make sure that these "not discussions" are meaningful; and 2) Make sure that the agency allows all offerors/quoters who have a reasonable chance of award an opportunity to revise their proposal/quote Why do you think this is true? Quote Link to comment Share on other sites More sharing options...
C Culham Posted February 12 Report Share Posted February 12 @Sam101 This might help. First read FAR 2.101 (a) & (b). The read 52.215-1 and watch for "discussions". Quote Link to comment Share on other sites More sharing options...
joel hoffman Posted February 12 Report Share Posted February 12 (edited) Thanks for reminding me, Carl. This is another reason not to use the term “discussions” with Part 13 , simplified acquisition methods. See 52.215-1 (a): “…Discussions are negotiations that occur after establishment of the competitive range that may, at the Contracting Officer’s discretion, result in the offeror being allowed to revise its proposal.” I can’t believe that contracting officials don’t know how to, orally or in writing, communicate with vendors, without referring to the term “discussions” or following the cookbook, Part 15 discussion procedures… Edited February 12 by joel hoffman Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 12 Author Report Share Posted February 12 1 hour ago, Don Mansfield said: Why do you think this is true? Because of International Waste Industries B-411338: Jul 7, 2015: Quote Although an agency is not required to conduct discussions under simplified acquisition procedures, where an agency avails itself of negotiated procurement procedures, the agency should fairly and reasonably treat offerors in the conduct of those procedures. Quote As a general matter, when an agency conducts discussions with one offeror, it must afford all offerors remaining in the competition an opportunity to engage in meaningful discussions. Quote Accordingly, we conclude that the Air Force, having conducted discussions with Mahto, was required to also conduct discussions with all other vendors in the competition, including IWI. We sustain the protest on that basis. 27 minutes ago, C Culham said: The read 52.215-1 and watch for "discussions". True, I see Discussions are negotiations that occur after establishment of the competitive range... Since FAR 13 does not require a competitive range, I guess if not intending to form a competitive range, it makes sense to not use the word "discussions". But still, even if I state in my FAR 13 RFP that "the agency may bargain with offerors", this really means "the agency may enter into discussions with offerors but skip the competitive range formation part". Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 12 Author Report Share Posted February 12 7 minutes ago, joel hoffman said: without referring to the term “discussions” Right, but bargaining = discussions in terms of the bargaining needs to be meaningful AND all offerors who have a reasonable chance of receiving the award need to be bargained with. Quote Link to comment Share on other sites More sharing options...
Don Mansfield Posted February 12 Report Share Posted February 12 29 minutes ago, Sam101 said: Because of International Waste Industries B-411338: Jul 7, 2015: The agency didn't tailor FAR 52.212-1 for SAP. So, they brought in the discussions rules by virtue of paragraph (g). This can be avoided. See here for examples of how to tailor FAR 52.212-1 for SAP: Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 13 Author Report Share Posted February 13 14 hours ago, Don Mansfield said: The agency didn't tailor FAR 52.212-1 for SAP. So, they brought in the discussions rules by virtue of paragraph (g). This can be avoided. Interesting, thank you, Don. Now, I believe you, however I am desperately trying to find some case law to solidify this, i.e., I need to find case law that deals with a solicitation that tailored FAR 52.212-1 for SAP, to substitute the word discussions in that clause with another word, like "negotiate" or "bargain". The closest case that I could find so far is B-419705.2 Academy Leadership, LLC, this protest was sustained. Quote We recommend that the agency reopen the procurement and conduct appropriate discussions with all offerors that participated in phase two of the procurement, request revised proposals, and make a new source selection decision. Now, the solicitation for B-419705.2 Academy Leadership, LLC was 70CMSD21R00000001. I looked up 70CMSD21R00000001 on SAM.gov and looked through it to try to find FAR 52.212-1, but I could not find it, so it appears that the agency did not even include FAR 52.212-1 in the RFP. However, the RFP does state, in Attachment 08.07_RFP 70CMSD21R00000001.docx, that "ICE reserves the right to contact any Contractor at any point to request additional information regarding their proposals", which sounds to me pretty much the same as "The Contracting Officer will not negotiate with any quoters other than those of the Government’s choice" as in your tailored paragraph (g). Although, to be fair, I do see that the agency did further down on the last page of Attachment 08.07_RFP 70CMSD21R00000001.docx state that "The Government intends to award without discussions; however, reserves the right to hold discussions if the Contracting Officer deems it necessary." But still, "ICE reserves the right to contact any Contractor at any point to request additional information regarding their proposals" should have overridden the later use of the term "discussions" when reading the RFP as a whole, for example, the RFP explicitly stated "the rules regarding vendor communications described in FAR Part 15.3 shall not apply to this acquisition." But GAO still sustained this protest on the grounds that "not discussions" were not meaningful. If anyone knows of a case where the agency tailored FAR 52.212-1 for SAP and also did not contradict itself by using the term "discussions" elsewhere in the solicitation please let me know. Quote Link to comment Share on other sites More sharing options...
C Culham Posted February 13 Report Share Posted February 13 2 hours ago, Sam101 said: "the rules regarding vendor communications described in FAR Part 15.3 shall not apply to this acquisition." But do you find it salient that the solicitation was called an "RFP"? I will do some searching. Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 13 Author Report Share Posted February 13 12 minutes ago, C Culham said: But do you find it salient that the solicitation was called an "RFP"? 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. Quote Link to comment Share on other sites More sharing options...
Don Mansfield Posted February 13 Report Share Posted February 13 3 hours ago, Sam101 said: Now, I believe you, however I am desperately trying to find some case law to solidify this, i.e., I need to find case law that deals with a solicitation that tailored FAR 52.212-1 for SAP, to substitute the word discussions in that clause with another word, like "negotiate" or "bargain". You're not going to find such a case. So what are you going to conclude? The rules of FAR 15.306 apply to SAP, even if the solicitation expressly says they don't? Quote Link to comment Share on other sites More sharing options...
Don Mansfield Posted February 13 Report Share Posted February 13 For a good illustration of the flexibility a contracting officer has when using SAP, see https://www.gao.gov/products/b-281512. Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 13 Author Report Share Posted February 13 28 minutes ago, Don Mansfield said: You're not going to find such a case. So what are you going to conclude? The rules of FAR 15.306 apply to SAP, even if the solicitation expressly says they don't? 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. Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 13 Author Report Share Posted February 13 18 minutes ago, Don Mansfield said: For a good illustration of the flexibility a contracting officer has when using SAP, see https://www.gao.gov/products/b-281512. 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. Quote Link to comment Share on other sites More sharing options...
Don Mansfield Posted February 13 Report Share Posted February 13 22 minutes ago, Sam101 said: 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). I'm not sure whether to help you or just let you continue to believe that. Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 13 Author Report Share Posted February 13 55 minutes ago, Don Mansfield said: I'm not sure whether to help you or just let you continue to believe that. 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. Quote Link to comment Share on other sites More sharing options...
ji20874 Posted February 13 Report Share Posted February 13 Too many 1102s want to apply FAR 15.306 everywhere. Back in the days when we had 1105s, they understood small purchases/simplified acquisitions and they handled them. When 1102s move into that arena, many of them carry their Part 15 baggage with them -- and they carry that baggage into purchases against schedules, orders under IDIQ contracts, and everywhere else. sam101, Look at these and tell me if you think they are fair... (1) Simplified acquisition, quotes at $36,200, $36,600, and $41,000 -- all quotes are identical except for price -- the contracting officer's requisition or purchase request is for $36,000. The contracting officer asks the first quoter if it can drop its price by $200 -- the first quoter says YES, and the purchase order is issued. I think this is fair and allowed under FAR Part 13. (2) Simplified acquisition, same quotes as above. The first quoter says NO to the request to drop its price by $200 -- the contracting officer asks the second quoter if it can drop its price by $600 -- the second quoter says YES, and the purchase order is issued. I think this is fair and allowed under FAR Part 13. Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 13 Author Report Share Posted February 13 24 minutes ago, ji20874 said: (1) Simplified acquisition, quotes at $36,200, $36,600, and $41,000 -- all quotes are identical except for price -- the contracting officer's requisition or purchase request is for $36,000. The contracting officer asks the first quoter if it can drop its price by $200 -- the first quoter says YES, and the purchase order is issued. I think this is fair and allowed under FAR Part 13. 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. 27 minutes ago, ji20874 said: (2) Simplified acquisition, same quotes as above. The first quoter says NO to the request to drop its price by $200 -- the contracting officer asks the second quoter if it can drop its price by $600 -- the second quoter says YES, and the purchase order is issued. I think this is fair and allowed under FAR Part 13. 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." Quote Link to comment Share on other sites More sharing options...
C Culham Posted February 13 Report Share Posted February 13 I guess by my read of this thread it has landed on a comment made in the Forum discussion thread referenced in the opening post. It depends. I did some research and landed on this decision, it might recomplicate the thread or help I will leave that to each. I do find the decision of interest in that it does put "material revision" on the table as applicable to both quotes and proposals and that allowing a material revision is discussion. https://www.gao.gov/products/b-401726%2Cb-401726.2 Quote Link to comment Share on other sites More sharing options...
Sam101 Posted February 13 Author Report Share Posted February 13 23 minutes ago, C Culham said: it might recomplicate the thread 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. Quote Link to comment Share on other sites More sharing options...
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