However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting officer judgment. Government personnel involved in the acquisition shall not engage in conduct that-.
However, the contracting officer may inform an offeror that its price is considered by the Government to be too high, or too low, and reveal the results of the analysis supporting that conclusion.
Parent topic: Subpart This is a U. Individuals found performing unauthorized activities are subject to disciplinary action including criminal prosecution. Skip to main content. LLC v. United States, 46 Fed. Indeed, Criterion has not provided and the court is not aware of any precedent in which the United States Court of Appeals for the Federal Circuit or this court held that a CO abused his discretion by not seeking clarification when the error was not apparent.
Therefore, the obviousness of the error is an important aspect of determining whether the CO acted reasonably by not seeking clarification. In light of the above, the CO appropriately exercised his discretion.
First, Criterion fails to show that the CO had any reason to suspect that its submission of the private audit was an error rather than a deliberate choice. Criterion does not direct the court to any evidence before the CO that suggested that the missing government audit was unintentionally omitted.
Although Criterion avers that the error was apparent because it claimed the CAS points on the Scoring Worksheet without submitting the required documents, the fact that Criterion submitted a private audit undermines its position.
Under these circumstances, Criterion fails to demonstrate that the CO abused his discretion by not seeking clarification. Informality and Minor Irregularity. Finally, Criterion argues that the CO abused his discretion by not waiving its failure to submit the proper supporting documentation as an informality and minor irregularity pursuant to FAR Relying on an analogous provision in the FAR pertaining to sealed bid procurements, Criterion contends that the omission was an informality and minor irregularity because the missing government audit did not affect the substance of its accurate representation in the Scoring Worksheet that it had a DCAA audit.
Criterion thus asserts that the CO was obligated to either waive the requirement that the supporting materials come from a government agency or permit Criterion to cure the deficiency by submitting its DCAA audit materials. Defendant responds by arguing that the requirement for a government audit was a material component such that the CO could not waive the condition. The incorporation of FAR See FAR United States, F. Progressive Indus.
Criterion fails to demonstrate that the CO abused his discretion by not waiving the purported informality and minor irregularity. The GSA stressed this objective in this solicitation by informing offerors that it 1 would strictly enforce proposal requirements and 2 might reject any proposal omitting required information. Despite these warnings, Criterion did not comply with the guidance that a private audit was insufficient. The GSA plainly afforded significance to offerors having a robust accounting system and chose government audits as a method of evaluating those systems.
Award without Discussions. As the GAO stated, when an offeror is obliged to make a change in the key personnel included in its proposal, the agency has a choice between evaluating the original proposal as submitted, or opening discussions to allow for modified proposals. Revenue Corp. Chenega suggests that it is bad policy to allow an agency to evaluate a proposal, as submitted, when the proposal contains an obviously invalid key personnel commitment.
ECF No. This court, however, does not review procurement policy, it reviews award decisions under the arbitrary and capricious standard of review. This is a highly deferential standard of review. Advanced Data Concepts, F. Indeed, the solicitation contained an explicit warning that the letter of commitment from the proposed General Manager was necessary and material, and that elimination from consideration was possible in the absence of such a letter. Miller for Mr.
Russell, is persuasive. Contracting officers generally have broad discretion regarding whether or not to engage in discussions with offerors before award. The general rule is that once offerors are warned that the agency intends to award without discussions, absent special circumstances, the contracting officer has the discretion to award without discussions. United States, 70 Fed. United States, 38 Fed. Instead, Chenega had to abandon its reliance on the General Manager it had originally proposed to the agency.
In these not unusual circumstances, DOE acted within its discretion to award without discussions. If award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals e. United States, 96 Fed.
While this discretion may not be total, at the very least it means that the government has no obligation to seek clarifications when it justifiably determines that an offeror has made a material omission. See Bus. Integra, Inc. Because the omission was material, DIA did not have an obligation to request a clarification from Sev1Tech and its decision not to do so was not arbitrary, capricious, or an abuse of discretion.
See ST Net, Inc. The intended prices were apparent from the face of the proposal. Clarifications were conducted with these Offerors. Sev1Tech argues that this explanation for the different treatment of Sev1Tech and the other seven offerors with missing labor rates was neither coherent nor reasonable and, therefore, DIA abused its discretion in failing to request a clarification from Sev1Tech.
With respect to Progressive, Sev1Tech argues that, unlike for itself, DIA found that there was no escalation rate pattern for the majority of the non-missing labor rates. Sev1Tech does not specifically address the other four offerors of the seven offerors from which clarification was sought, i. United States, 76 Fed. Recovery, Inc. United States, 64 Fed. According to defendant, in the case of each of the seven other offerors, DIA was able to reasonably conclude that there was sufficient consistency to calculate the intended rates for the missing cells.
The gMg Mgmt. There, as in the above captioned case, the solicitation required offerors to complete a pricing spreadsheet with proposed rates for various labor categories, and a disappointed offeror inadvertently omitted rates for a number of cells in the version of spreadsheet it submitted with its proposal. See gMg Mgmt. June 5, Auto Logistics LP v. The court agrees that DIA exercised its discretion in a reasonable and not arbitrary manner, when, after trying unsuccessfully to fill in the missing cells, DIA declined to offer Sev1Tech an opportunity to clarify its offer.
Constellation West, Inc. Plaintiff argues that the VA thus exceeded the scope of the corrective action, rendering its confirmation of the contract award to LMC arbitrary and capricious, without a rational basis, or contrary to law. AR 13, VAAR Further, FAR At least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern.
In addition, VAAR A service-disabled veteran-owned small business concern agrees that in the performance of the contract, in the case of a contract for:. As detailed in our management and Operation plan below, LMC Med Transportation will be managing and performing quality assurance and control on this contract. Our backup plan is to utilize either in full or in part Palmetto Ambulance. LMC provided no comparable licenses, list of vehicles, or list of drivers for itself.
Thereafter, defendant took corrective action and sought clarification from the offerors regarding this issue. Defendant sent identical letters to Excelsior and to LMC, explaining:. Upon review of the record, a determination has been made to take corrective action on the reference solicitation. The corrective action requires that each offeror clarifies [its] ability to comply with the contracting limitations as outlined in [VAAR] LMC then concluded:.
To the contrary, the VA erred by permitting LMC to exceed the scope of clarification and make substantial revisions to its proposal so that the proposal would satisfy the requirements of the solicitation. To the contrary, LMC added itself and a new subcontractor to the rewritten proposal, removed a backup subcontractor from the original proposal, and reduced the amount of services that would have been provided by the main subcontractor that it originally proposed.
In its original proposal, plaintiff submitted a chart that provided a breakdown of prices for ambulance services. Moreover, plaintiff provided a chart with a list of service prices in its original proposal. Thus, when plaintiff later explained that all services would be performed by its employees, and that, if necessary, five percent of the services could be carried out by a subcontractor, it was a statement that clarified and elaborated on the chart that plaintiff previously had provided with its original proposal.
Finally, plaintiff explained in its clarification that it had an established office in Columbia, South Carolina, and that it would provide an Excelsior manager as the primary contact person for the VA from that office. In doing so, Excelsior supplied the VA with further details about the nature of the contract performance that it had originally proposed. FAR 1. Accordingly, the VA conducted the corrective action in a manner that was arbitrary and capricious, without a rational basis, and contrary to law.
Excelsior Ambulance Service, Inc. Plaintiff argues that the government engaged in exclusive discussions with Entwistle that allowed Entwistle to revise its proposal to make it compliant with the terms of the Solicitation. See Compl.
See Pl. C discussing the content of the two exchanges. For the following reasons, the court finds that the two exchanges did not constitute discussions and that, therefore, the Agency did not enter into unequal discussions with Entwistle.
The court further finds that, even if the two exchanges had constituted discussions, plaintiff has failed to establish prejudice. Unlike discussions, which must be conducted equally with all offerors within the competitive range, see FAR United States DynCorp , 76 Fed. Section L. United States Allied Tech. CW LLC v. United States G4S , Fed. The two exchanges that plaintiff challenges took the form of limited e-mail correspondence between the agency and Entwistle. See supra Part I.
C describing the two exchanges. Be advised that this clarification request does not allow you to modify your proposal, including your proposed prices, in any way.
Based on our experience with design programs, a factor was applied to the production hours to arrive at the first article labor hours.
Plaintiff also contends that neither exchange is governed by Section L. The court finds that the information provided by Entwistle in the first exchange--the estimated material cost and labor hours for fabricating the ISO frame--was required by the Solicitation, but that the information provided by Entwistle in the second exchange--an explanation of how its proposed labor hours were estimated--was not.
With respect to the first exchange, Section L. The record suggests that Entwistle failed to include the cost of the ISO frame in its proposal despite this requirement.
In response to the third request for clarification regarding direct labor hours, which plaintiff does not dispute, see Pl. See AR Aug. The court does not consider this view unreasonable. See Allied Tech. And plaintiff has failed to meet the heavy burden necessary to show that the Agency abused its discretion by finding that the cost of the ISO frame--including materials and possibly labor hours--was not a material requirement.
Honeywell, Inc. Duncombe ; Pl. Moreover, as defendant correctly notes, see Def. ITAC, F. United States, 72 Fed. Nor does the court find that Entwistle revised its proposal as result of the two exchanges. DynCorp, 76 Fed. Mil-Mar has not demonstrated that it was prejudiced. However, the Solicitation afforded the Agency several opportunities to exercise its discretion in accepting proposals that did not include required information.
Brooks Range, Fed. Mil-Mar Century Corp. Dean, which gave M. Dean the opportunity to fill supposed gaps in its proposal, amounted to discussions with M. Dean rather than clarifications. Army Servs. United States, 90 Fed. As such, G4S contends that it must be afforded such an opportunity. United States, which states:.
Clarifications are not to be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal or otherwise revise the proposal. United States, 52 Fed. Whether the agency conducted discussions with M. Dean turns on whether M. It also required that the contractor provide a warranty period for software and equipment of at least one year.
In the two letters constituting the exchange, WHS asked and M. Dean confirmed that M. Dean would provide the needed warranty. G4S contends that the exchange between M. Dean and WHS amounted to discussions because the exchanges provided M.
AR , , JAR at 20 citing Ashbritt, Inc. The government and M. Dean argue, in response, that the communications between WHS and M.
Exchanges with offerors after establishment of the competitive range. Negotiations are exchanges, in either a competitive or sole source environment, between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal.
These negotiations may include bargaining. Bargaining includes persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms of a proposed contract. When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions. Instead, they argue, the communications between WHS and M. Dean, in contrast to the others, had addressed the requirement in its proposal but that the proposal was simply not clear.
Since the communications constituted clarifications and not discussions, the government and M. In this case, the court agrees with the government and M. Dean that the communications between M. Dean and WHS merely sought and provided confirmation of information already present in M. Dean submitted for its proposed Senior Systems Administrator, Mr. While not explicitly stating the IAT Level II certification by name, the resume contained all the individual components and background information required to obtain such a certification.
These omissions could only have been remedied through revisions to the proposals afforded by discussion. Similarly, as reproduced above, the information M. Dean provided to WHS regarding its proposed warranty, while not restating the explicit requirements of the solicitation, demonstrated its intent to provide the requisite warranty period.
AR , Dean, the court also notes that WHS is entitled to deference with regard to its characterization of its communications. Here WHS repeatedly noted in its letter to M. There is no evidence on the record to suggest that any negotiations took place. Most importantly, there is no evidence on the record to suggest that M. Dean was given the opportunity to revise its proposal. As discussed above, in its two-page letter to WHS, M. Dean merely explained the information already included in its proposal.
However, exchanges with offerors in FSS procurements must still be fair and equitable, thus GAO uses the part 15 standards for guidance.
You must be logged in to post a comment. Discussions vs. Related Posts. Leave a Reply Cancel reply You must be logged in to post a comment. Get Help. See FAR They are intended only to permit the Government to improve its understanding of proposals or past performance information, and address minor issues before a competitive range is established.
Please verify. Please correct that. Protests are often fought over exchanges that lie in the fuzzy grey areas between those two extremes. Generally speaking, an agency can conduct clarifications with an individual offeror without having to conduct exchanges of any sort with the other offerors. However, as we noted last time, when an agency opens discussions with one offeror, it must treat the other offerors equally and open discussions with all offerors in the competitive range.
See, e.
0コメント