Including marginal rated offeror in price reasonableness analysis?

[Jamaal Valentine]

5 hours ago, adt110549601 said:

Not including an unsat offeror in the price analysis and/or trade-off analysis feels like you are eliminating them from competition and therefore creating a competitive range.  Is there a way to eliminate an unsat offeror from the competition without creating a competitive range?  If so, how do you speak to this in your award decision document?

The decision to establish a competitive range is a matter within the sound judgment of the procuring agency. Dismas Charities, Inc., B-284754, May 22, 2000, 2000 CPD para. 84 at 3. You establish a competitive range if you are entering into discussions. See FAR 15.306(c).

But establishing a competitive range doesn’t require you to enter into discussions. Information Sciences Corp., Gallagher, Hudson, & Hunsberger, Inc. (d/b/a Development InfoStructure or DEVIS) v. U.S. and Symplicity Corporation, No. 07-744, March 18, 2008.

5 hours ago, adt110549601 said:

How and when does a KO notify an unsat offeror that they are no longer being considered for award or that they did not receive the award?

Read FAR 15.503 and see if you find your answer. See also FAR 13.106-3(c) or any other FAR part that governs your particular acquisition. For example, FAR 8.405-2(d) or FAR 16.505(b)(6).

Circle back and let us know what you settle on.

[Sam101]

42 minutes ago, Jamaal Valentine said:

Read FAR 15.503

So, in accordance with FAR 15.503(a)(1) Preaward notices of exclusion from competitive range. The contracting officer shall notify offerors promptly in writing when their proposals are excluded from the competitive range or otherwise eliminated from the competition. The notice shall state the basis for the determination and that a proposal revision will not be considered.

Why is FAR 15.503(a)(1) titled "Preaward notices of exclusion from competitive range" when or otherwise eliminated from the competition means eliminated from competition even if a competitive range is not established? Such as an unacceptable rating but the government does not form a competitive range?

[adt110549601]

This still feels tricky when you have offered prices in a proposal from an offeror that has received a marginal/unsat/no confidence past performance rating.  I keep looping up and down this thread.  There are several good nuggets of information.

The tricky part is when an RFP says the Government will evaluate offered prices, but DAU’s Contract Pricing Reference Guide, Volume 1, paragraph 6.1.1 (link above) says to not compare prices of ‘technically unacceptable’ offers (and for good reason, I might add).  How do you evaluate the price proposal from an unsat offeror without a comparison that is required as part of an analysis?  The Gov’t plans to award without discussions, so this unsat offeror is not being kicked out so to speak.

Thx again everyone, especially Joel and Jamaal!

[Jamaal Valentine]

@adt110549601

Have you considered stating that you will only evaluate prices of offers and offerors that are eligible for award? That will put everyone on notice.

Also, it might be useful to distinguish, in your thinking, that evaluation is not synonymous with scoring/rating.

[joel hoffman]

14 hours ago, Jamaal Valentine said:

@adt110549601

Have you considered stating that you will only evaluate prices of offers and offerors that are eligible for award? That will put everyone on notice.

That can be tricky. If you decide to conduct discussions and have one or more firms with deficiencies that may be curable, You need to consider pricing and non-price aspects of the proposals in establishing the initial competitive ranges.

However, technically, materially deficient proposals aren’t eligible for award unless and until the firms can clear the deficiencies during or after discussions.

[Sam101]

2 hours ago, joel hoffman said:

If you decide to conduct discussions and have one or more firms with deficiencies that may be curable, You need to consider pricing and non-price aspects of the proposals in establishing the initial competitive ranges.

Emphasis added.

Right, so, the way I see it, a firm being ineligible for award CAN become eligible AFTER discussions.

And you need to consider pricing when forming a competitive range, so that's why this is true:

When an offeror is unacceptable (un-awardable), the government must consider their price for the green text but not the red text:

1) When determining competitive range.

2) When documenting trade-off analysis.

3) When determining price reasonableness.

[Sam101]

2 hours ago, joel hoffman said:

That can be tricky

But it's like that by default, isn't it?

Even if the solicitation does not state that unacceptable offerors are not eligible for award, the definition of unacceptable (and probably marginal as well) in the solicitation likely means the same thing as if the solicitation does state that unacceptable offerors are not eligible for award, since the government cannot award to an unacceptable offeror (an offeror who cannot meet the critical requirements of the SOW, at least based on their proposal) by default, right?

[Jamaal Valentine]

18 hours ago, joel hoffman said:

You need to consider pricing and non-price aspects of the proposals in establishing the initial competitive ranges.

Maybe not. Possehn Consulting, B-278579.2, July 29, 1998 and other cases suggest it’s not an issue to eliminate unacceptable offers from the competitive range without any consideration of price. 

How would they establish themselves as an interested party in that regard?

[adt110549601]

Can you have adequate price competition with two offerors, when one of them receives a marg/unsat/no condidence past performance rating?  

FAR 15.403-1(c)(1) Adequate price competition. (i) A price is based on adequate price competition when—
(A) Two or more responsible offerors, competing independently, submit priced offers that satisfy the Government’s expressed requirement; 

So is it possible for a marg/unsat/no confidence rated offeror to submit an offer that still satisfies the Government's expressed requirement?

If the answer is, no, would you remove the marg/unsat/no confidence offeror from the competition?  This changes whether you would make a sole source award decision or a best value award decision.

[Jamaal Valentine]

1 hour ago, adt110549601 said:

Can you have adequate price competition with two offerors, when one of them receives a marg/unsat/no condidence past performance rating?  

FAR 15.403-1(c)(1) Adequate price competition. (i) A price is based on adequate price competition when—
(A) Two or more responsible offerors, competing independently, submit priced offers that satisfy the Government’s expressed requirement; 

Keep reading through FAR 15.403-1(c)(1)(ii).

1 hour ago, adt110549601 said:

So is it possible for a marg/unsat/no confidence rated offeror to submit an offer that still satisfies the Government's expressed requirement?

If the answer is, no, would you remove the marg/unsat/no confidence offeror from the competition?  This changes whether you would make a sole source award decision or a best value award decision.

What do you mean by “sole source award decision or a best value award decision?” What’s the difference between the two?

[adt110549601]

@Jamaal Valentine, first, thx for hearing me out! 

With two offers, there would be a trade-off best value decision (adequate competition); with one offer, award could be made to a responsible offeror with fair and reasonable pricing (no longer best value, if one of the offers was no longer considered).

[Jamaal Valentine]

@adt110549601

 No worries. Thanks for the explanation.

Two things: First, verify that your use of the term ‘best value’ aligns with FAR [if that’s your goal]. Start with FAR 2.101 and then check FAR part 15. I think a search of “best value” will return 10 hits in FAR part 15. Lastly, let us know what you find.

[Sam101]

This wifcon thread is a good supplement to this thread:

So, the way I see it, there are 2 instances of price reasonableness analysis when a competitive range is formed:

One for the competitive range formation, and one during trade-off documentation.