FAR 13.106-2 and actions of the parties in terms of discussions

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.

Synonyms of negotiate

• arrange.
• conclude.
• discuss.
• bargain.
• concert.
• deal.
• haggle.
• settle (on or upon)

https://www.merriam-webster.com/thesaurus/negotiate

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"?

Yeah, I thought the linked thread was pretty clear, too.

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.

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?

@Sam101

This might help.

First read FAR 2.101 (a) & (b).

The read 52.215-1 and watch for "discussions".

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…

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.

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".

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.

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:

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.

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.

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.

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?

For a good illustration of the flexibility a contracting officer has when using SAP, see https://www.gao.gov/products/b-281512.

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.

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.

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.

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.

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.

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.

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."

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

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.

Sam101 said:

Even if the government awarded to SAIC and ignored the hold harmless clause, wouldn't that clause not apply anyways?

Why not?  Do you think the government cannot agree to an indemnification clause that is not in a government procurement regulation?

Retreadfed said:

Why not?  Do you think the government cannot agree to an indemnification clause that is not in a government procurement regulation?

I am not an expert on indemnification matters in terms of when or why or how the government accepts the responsibility to compensate a contractor for harm or loss as a result of the contractor performing a government contract.

I would imagine that only the clauses in the contract apply, so if there is an indemnity clause in the contract, it would have been in the solicitation (market research would have resulted in the government determining that an indemnification clause of some sort, crafted by the government, is appropriate... and I believe there are some standard indemnification clauses in the FAR, and possibly in agency supplements).

I believe that any random contractor provided indemnity clause can be ignored, since contractors can't just plug their custom clauses into a contract just because it's in their small print.

I guess that's why the government usually informs offerors that they must state any exemptions to the terms of a solicitation in a certain section of their proposal, I usually state in section L that offerors must state exemptions in their introductory letter, and that this is the only place that the government will consider any exemptions, and exemptions stated anywhere else in their proposal (such as in small print on the last page of their price proposal) will be ignored.

It's good to know that, at least according to The Analysis Group, LLC B-401726,B-401726.2 that asking a quoter to remove a custom indemnity clause counts as discussions, I would have thought that this would count as a clarification, in terms of "hi, offeror, I noticed you forgot to remove the indemnity clause from your quote, you probably used a template that you use for commercial business to business contracts, please remove this clause, if you don't remove it, the government will ignore it anyways, actually, since the government will ignore it anyways, don't worry about it, I'm not asking you for a revised quote/proposal, I'm just letting you know that your custom indemnity clause will be ignored."

For example, if the FAR Changes clause is in a solicitation, and the offeror has "any changes to the contract will be bilateral" in small print somewhere hidden in their proposal, not in the introductory letter's exemptions section, and the government awards a contract, this doesn't mean that the Changes clause gets overridden by the "any changes to the contract will be bilateral" just because that was part of the proposal.

If this sounds too simple and doesn't reflect how things work in real life, then the FAR counsel should change the rules to make everything stated above true.

Sam101 said:

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.

If you are a beginner, let me suggest that you learn how to negotiate and bargain and then practice it. And learn how to respond to QUOTES. 

It likely takes more of time, effort and labor cost for you and the other government organizations, offices and personnel to contact the end user to demand $200 more  to award a purchase order, then have the end user request the funds, someone process and send the funds to your organization, then your organization processing them - than to call (oh no! “Talk” to them?) or even to email them to bargain for a $200 reduction or discount.

I was told several times by contractors that they often don’t initially quote or propose their bottom line best price, especially when subcontractors are involved, depending upon the level of expected competition, market conditions, etc.

Why request “quotes” if you don’t think that you have the ability to bargain for better price and/or terms and conditions. The GOVERNMENT is the party that makes an offer to the vendor, after all! 

AND don’t ever ignore a cancellation penalty or any other objectionable term or condition in either a quote or condition!!

Sam101 said:

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.

It may be a standard term or commercial condition but it’s a conditional quote or offer. When the government responds to a quote, it’s making the offer to the vendor to form a contract…

Yes, “it depends upon the situation”.

Edit: I learned in a Business Law college course over 40 years ago and in negotiation courses and readings that almost everything is negotiable, especially quoted prices and terms and conditions and even printed and posted sticker and price tags. You can bargain for better terms and prices - even if the quote or offer otherwise meets “acceptable” evaluation criteria.

joel hoffman said:

learn how to negotiate

I know how to negotiate, thank you, I just like the way "no money no contract" sounds.

But I understand your point, well said.

joel hoffman said:

I was told several times by contractors that they often don’t initially quote or propose their bottom line best price

This may be a mistake on the contractor's part, for trying to play games, especially when the solicitation asks for best prices on initial quotes.

I bought my first new Honda Accord back in 1983. I learned afterward when the bank sent me the loan papers and conditions that the first payment was due 60 days later. That meant that I was initially paying an extra month’s interest plus residual interest on that interest for the remaining 36 month period. I went back to the dealer to claim breach of the written sales contract and the advertised loan.

The dealer said that was the bank’s terms, not theirs. I replied that the dealer was, in effect, an agent for the bank, so they and the bank were both liable for false advertising. I then went to the bank and told the bank manager the same thing. The bank rewrote the loan agreement to make the first payment 30 days after my purchase.

joel hoffman said:

You can bargain for better terms and prices - even if the quote or offer otherwise meets “acceptable” evaluation criteria.

Right, but when all the stars align, the government can end up staring at a document from the GAO stating "the protest is sustained, on the grounds that the government engaged in improper discussions".

Sam101 said:

Right, but when all the stars align, the government can end up staring at a document from the GAO stating "the protest is sustained, on the grounds that the government engaged in improper discussions".

“It depends upon the conditions”. If there are one or more reasonably competitive offers/quotes in the running, it may make sense to negotiate/bargain with them. 

But, let’s live in fear of a protest and play it “safe”.

joel hoffman said:

The bank rewrote the loan agreement to make the first payment 30 days after my purchase.

Interesting.

That's better than any dealing I ever had with car dealers, since it makes sense and is a reasonable demand. This one time I looked the car dealer straight in the eye, with a serious face, saying I will buy a $37,000.00 car today if they sell it to me for $27,000.00... they said no, and then I left.

Sam101 said:

Interesting.

That's better than any dealing I ever had with car dealers, since it makes sense and is a reasonable demand. This one time I looked the car dealer straight in the eye, with a serious face, saying I will buy a $37,000.00 car today if they sell it to me for $27,000.00... they said no, and then I left.

It occurred during the second semester of my night classes pursuing a second degree, in Business Administration - soon after learning what I mentioned earlier. We moved to Saudi Arabia about four months later and sold the car. Fortunately, new Hondas were almost impossible to find at dealers back in 1983. Demand greatly exceeded supply. I think we sold it for what we paid for it.

Edit: I discovered in Saudi Arabia that the European versions of new Hondas and other car and small truck brands cost a whole lot less than in the US. I could have bought a used, classic  Rolls Royce for about $10,000 in 1987. But it was too much trouble to arrange shipping and import modifications and tariffs, etc. plus we were relocating to Germany. 🤪

(I could also have bought a slightly used, late model D-9 Caterpillar dozer in Riyadh for about $10,000 - 35,000 Saudi Ryals - too.🤠)

Sam101 said:

I know how to negotiate, thank you, I just like the way "no money no contract" sounds.

Yeah, but you have to decide whether you are a professional or a clerk -- and even if you strive to be a professional, your organization might treat you like a clerk.

The negotiation examples I shared are legitimate and honorable, and using them will help you shift more to a professional perspective.  The clerk perspective pervades the 1102 community, and that is sad.

I am glad you are asking questions.

Sam101 said:

I know how to negotiate, thank you, I just like the way "no money no contract" sounds.

Here, you would actually be negotiating with your government partner. It sounds better here to say the same thing to the vendor.🤠

Sorry to drone on. I worked with a Korean American fellow contract administrator in Saudi Arabia on mods and claims for a large construction contract with a Korean contractor.

I couldn’t understand why the contractor kept proposing higher labor rates for every mod action, long after our auditors found that they were inflated. We would have to adjust the rates and hours for every negotiation.  Then our contractor would agree to the lower amounts.

Mr. Chong told me “You Americans are gullible and seem to accept everything at face value. We Koreans bargain for everything, even loaves of bread…” 🤪

I still remember that 40 years later.

Edit: One last thought. Do you notice that when you are buying a new or used vehicle from a car dealer, the sales person generally always asks you to “make an offer”, then takes it to the sales manager, who either accepts or rejects it? The sticker or window prices are effectively considered to be a quoted price. I haven’t ever been able to get a salesperson to offer me their best or even a lower price first.

But the latest and expanding practice is now  “no haggle” pricing. I haven’t bought a vehicle under those pricing arrangements yet…

ji20874 said:

The negotiation examples I shared are legitimate and honorable

I agree.

I remember a recent negotiation where I had to let multiple quoters know that their prices were too high, but I did not explicitly state the decease the government was looking for in terms of explicit dollar amounts, e.g., $200 or $500, I just said this:

Quoter 1: Your price is moderately too high, please decrease.

Quoter 2: Your price is significantly too high, please decrease.

Quoter 1 decreased their price well and ended up getting the award, I don't remember by how much Quoter 2 decreased their price, but in any event, Quoter 1 got the award.

joel hoffman said:

It likely takes more of time, effort and labor cost for you and the other government organizations, offices and personnel to contact the end user to demand $200 more  to award a purchase order

I see your point, but just in general, not just in the government, but for businesses as well, I sometimes struggle to understand what "labor cost" means when it comes to performing "extra" tasks, in the sense that if workers are not performing these "extra" tasks, it's not a guarantee that they would spend their time doing something else that is useful to the business, or the government, i.e., the workers might be idle... if the works are idle, then what is the extra cost involved in them doing extra tasks? Is it better to pay workers for being idle?

joel hoffman said:

accept everything at face value

Yeah, my wallet is looking pretty thin at the moment, sell me this here brand new Lexus for $15,000.00 with 0% interest and make the loan term 10 years.

Sam101 said:

I would have thought that this would count as a clarification,

By my read...

Not a clarification because it could/would remove the offeror from the competition completely.  A little different than asking did you mean to dot this "i" where the offeror would not be removed if it was not dotted.

Material revision

Sam101 said:

I agree.

I remember a recent negotiation where I had to let multiple quoters know that their prices were too high, but I did not explicitly state the decease the government was looking for in terms of explicit dollar amounts, e.g., $200 or $500, I just said this:

Quoter 1: Your price is moderately too high, please decrease.

Quoter 2: Your price is significantly too high, please decrease.

Quoter 1 decreased their price well and ended up getting the award, I don't remember by how much Quoter 2 decreased their price, but in any event, Quoter 1 got the award.

I see your point, but just in general, not just in the government, but for businesses as well, I sometimes struggle to understand what "labor cost" means when it comes to performing "extra" tasks, in the sense that if workers are not performing these "extra" tasks, it's not a guarantee that they would spend their time doing something else that is useful to the business, or the government, i.e., the workers might be idle... if the works are idle, then what is the extra cost involved in them doing extra tasks? Is it better to pay workers for being idle?

Well, you can look at it this way then. If you simply call the contractor and ask him to lower his price, versus taking all that extra time to cough up and process another couple hundred dollars and piss off or otherwise under impress your customer,  you have more time to goof off and be idle, not doing other work.

Sam101 said:

I believe that any random contractor provided indemnity clause can be ignored, since contractors can't just plug their custom clauses into a contract just because it's in their small print.

You started off asking about quotes.  An indemnification clause might be a significant factor in the quote otherwise the price would increase significantly.  Acceptable indemnification clauses are not limited to the clauses in government procurement regulations.  The parties can agree to a special indemnification clause so long as it is not open-ended and is limited to the availability of appropriations.

Retreadfed said:

not open-ended and is limited to the availability of appropriations

So, does this mean that the indemnified contractor is only entitled up to the contract price just like in the case of a T4C termination fee?

For example, if a contract, no matter the contract type, is $100,000.00, and the contractor almost finished the work (like, I mean the contractor is literally putting the final nail in the work) and is ready to get paid $100,000.00, and a contractor employee accidently drops a hammer on a subcontractor's toe, and the subcontractor gets injured, there would be almost $0.00 left for the government to cover the cost of the government's responsibility to pay for the subcontractor's medical bills?

Or is "availability of appropriations" not the same as "the obligated value of the contract"?

In the case of United Marine International LLC File: B-281512, is “FAR Sec. 12.301(c) where a relative technical evaluation is contemplated” implying that FAR 52.212-2 Evaluation-Commercial Products and Commercial Services is only appropriate for trade-off solicitations? And not LPTA?

If FAR 52.212-2 Evaluation-Commercial Products and Commercial Services can be used in LPTA, how is “the offered equipment's compliance with the specifications” not an evaluation factor? If this clause is allowed in LPTA, shouldn’t DACW69-98-Q-0328 have had FAR 52.212-2 in the solicitation that looked like this?:

Addendum to 52.212-2 Evaluation—Commercial Products and Commercial Services.

52.212-2 is entirely replaced with the following:

(a) The Government will award a contract resulting from this solicitation to the responsible quoter whose quote conforming to the solicitation will meet the Government’s requirement, the following factor shall be used to evaluate quotes for technical acceptability:

Whether the description of the equipment meets the requirements of the performance specifications in Section C.

(b) The resultant contract will not have options, the default text of 52.212-2(b) is not applicable.

(c) The Government will make an offer to buy to form a contract, based on the selected quote.

(End of provision)

On 2/14/2024 at 6:36 AM, Sam101 said:

It's good to know that, at least according to The Analysis Group, LLC B-401726,B-401726.2 that asking a quoter to remove a custom indemnity clause counts as discussions, I would have thought that this would count as a clarification, in terms of "hi, offeror, I noticed you forgot to remove the indemnity clause from your quote, you probably used a template that you use for commercial business to business contracts, please remove this clause, if you don't remove it, the government will ignore it anyways, actually, since the government will ignore it anyways, don't worry about it, I'm not asking you for a revised quote/proposal, I'm just letting you know that your custom indemnity clause will be ignored."

For example, if the FAR Changes clause is in a solicitation, and the offeror has "any changes to the contract will be bilateral" in small print somewhere hidden in their proposal, not in the introductory letter's exemptions section, and the government awards a contract, this doesn't mean that the Changes clause gets overridden by the "any changes to the contract will be bilateral" just because that was part of the proposal.

On 2/13/2024 at 3:25 PM, Sam101 said:

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.

You mentioned several times that you “simply ignore” terms and conditions (in quotes or proposals)  that conflict with solicitation terms or that are otherwise objectionable.

You can’t simply ignore in quotes and proposals terms and conditions that conflict with the solicitation or are otherwise objectionable. If you want to consider the proposal or quote for award, you need to call it to the vendors attention and have them remove the offensive or non-compliant language.

 There must be a meeting of the minds to form a contract.

“FAR  12.213 Other commercial practices.

It is a common practice in the commercial marketplace for both the buyer and seller to propose terms and conditions written from their particular perspectives. The terms and conditions prescribed in this part seek to balance the interests of both the buyer and seller. These terms and conditions are generally appropriate for use in a wide range of acquisitions. However, market research may indicate other commercial practices that are appropriate for the acquisition of the particular item. These practices should be considered for incorporation into the solicitation and contract if the contracting officer determines them appropriate in concluding a business arrangement satisfactory to both parties and not otherwise precluded by law or Executive order.”

For example: "In reviewing protests challenging the evaluation of proposals, we examine the record to determine whether the agency’s judgment was reasonable and in accord with the RFP evaluation criteria. Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90‑1 CPD ¶ 223 at 4. An offeror has the burden of submitting an adequately written proposal, and it runs the risk that its proposal will be evaluated unfavorably when it fails to do so. Recon Optical, Inc., B-310436, B-310436.2, Dec. 27, 2007, 2008 CPD ¶ 10 at 6. Furthermore, in a negotiated procurement, a proposal that fails to conform to the material terms and conditions of the solicitation is considered unacceptable and may not form the basis for award. Wolverine Services LLC, B‑409906.3, B-409906.5, Oct. 14, 2014, 2014 CPD ¶ 325 at 3-4."

See also, for example:
https://courses.lumenlearning.com/suny-monroe-law101/chapter/elements-of-a-contract/

”ACCEPTANCE: 

Acceptance by the offeree (the person accepting an offer) is the unconditional agreement to all the terms of the offer. There must be what is called a “meeting of the minds” between the parties of the contract. This means both parties to the contract understand what offer is being accepted. The acceptance must be absolute without any deviation, in other words, an acceptance in the “mirror image” of the offer. The acceptance must be communicated to the person making the offer. Silence does not equal acceptance.”

With RFQ’s, the government makes an offer to the successful vendor. In the government’s offer to award, you could specifically identify the specific terms or conditions in the quote that you don’t accept.

However, you may not know what the price or performance ramifications of objectionable or non-conforming terms of a quote are.

Therefore you need to discuss and negotiate the final terms for the quote . It might result in a price reduction. It might result in a material change to the requirement if accepted that may affect other vendors prices.  It might result in a price increase that might affect the quoter’s relative ranking among other competitors.

 If you are a “beginner”, I hope your organization has an attorney who can advise you about the principles of mutual understanding, not ignoring non-conforming terms and conditions in a quote or proposal,  “meeting of the minds”, etc.

joel hoffman said:

not ignoring non-conforming terms and conditions in a quote or proposal,  “meeting of the minds”, etc.

I agree.

joel hoffman said:

You could specifically identify the specific terms or conditions that you don’t accept in the government’s offer to award.

I agree, however, this could count as discussions, since it's the same thing as asking SAIC to remove their indemnity clause.

It should not count as discussions though as long as the removal of a contractor's unacceptable custom clause does not affect their price quote, or anything else either, like their technical approach, if that was an evaluation factor.

Sam101 said:

Or is "availability of appropriations" not the same as "the obligated value of the contract"?

These are different things.  For example, a contract may be funded by Army O&M funds.  The O&M appropriation is the limiting factor, not the contract value.