Amended Solicitation - Fair Opportunity

"But for the fact that General.Zhukov changed the requirement without (a) amending the solicitation, (b) providing notice to my client, and (c) providing my client a fair opportunity to submit a proposal, my client would have submitted a proposal for this work and is therefore an interested party for this bid protest."

There is no rule. Is the task order likely to exceed the bid protest threshold?

Z, note that the procedures for issuing orders under a multiple award contract are to be set forth in the contract.  Thus, if you do not follow those procedures when issuing an order, you can be facing a claim under the Disputes clause.  Thus, even if the order does not qualify for being subject to a protest, that does not mean you are out of the woods.

How does not allowing all 10 contractors submit proposals for the revised requirement meet the fair opportunity requirement of the FAR and statute?

Vern Edwards said:

There is no rule. Is the task order likely to exceed the bid protest threshold?

In addition, I wouldn’t amend anything until  I found out why the prices were so relatively high. You can explore that through discussions. You might find something in the requirements that caused prices to be higher than expected, which might be fixable.  I learned to not expect that my proposers gave me their best initial prices and that often they could improve pricing or resolve uncertainties in their or their sub’s pricing through discussions. Just don’t assume that all overages are the government’s fault. 

As for your question about the other firms, they already had a fair opportunity to compete. 

Did you publicize the budget, which might have led some of the other firms not to bother proposing?

If not, it looks like you are still working with the same basic scope. Your intent is apparently to  restructure some of the effort as options, to award later if more funds become available. 

You didn’t indicate what the normal participation rate is for task order competitions. Was this one abnormally low? If so, you might or might not know or may suspect why...

I fear that you can not provide adequate detail for a specific response.  Example - while there may be no discussion in the parent IDIQ suggesting that there are no rules that apply to what you want to do you have alluded to a process that may in fact be tantamount to a FAR part 15 selection process at least in the eyes of GAO should there be or could be a protest.  Noting this my best advice is to do research of applicable GAO decisions that may be based on similar or as close to the same circumstances to get a bearing on what your best course could be.

A good place to start is on the WIFCON Legal page for GAO protests related to fair opportunity found here - /legacy/reg/6f91c03d66aa4a89.html

Thank you all for the sage advice.  For the next few days I'm quite busy, so I can't provide a more thoughtful response right now.

Sorry to interrupt your busy schedule,  last night, Z

OK, year end schedule. Understood. You are probably working overtime.

Anticlimactic follow-up.  We got the $150, mostly from nickels and dimes from under our sofa cushions. So moot.

1. The determination was that I would have to re-open the solicitation to all eligible offerors (the original10) because making things options is a material change.

• Where an agency’s requirements change in a material way after a solicitation has been issued, the agency must generally issue an amendment and afford all offerors an opportunity to compete for its changed requirements. Murray-Benjamin Elec. Co., L.P., B-400255, Aug. 7, 2008, 2008 CPD ¶ 155 at 3-4.

2. My next Fair Opportunity I am going to make everyone - offerors, CO, reviewers & evaluators - submit sworn statements acknowledging the acquisition is not subject to FAR 15.  I will also change the word 'offerors' to 'y'all' and 'proposal' to 'stuff' in the solicitation (to be re-named the 'Request for Stuff' or RFS).

3. The lack of participation and the under-budgeting are both due to the requirement being overly complicated (IMO).

Next time, tell the contractors that any that do not submit an offer (or quote) in response to an RFTOP will not be notified of any amendments, including amendments that make material changes in the requirement. (I presume that such procedure will not violate the terms of your contract.)

On 9/28/2018 at 1:54 PM, General.Zhukov said:

Anticlimactic follow-up.  We got the $150, mostly from nickels and dimes from under our sofa cushions. So moot.

1. The determination was that I would have to re-open the solicitation to all eligible offerors (the original10) because making things options is a material change.

    

• Where an agency’s requirements change in a material way after a solicitation has been issued, the agency must generally issue an amendment and afford all offerors an opportunity to compete for its changed requirements. Murray-Benjamin Elec. Co., L.P., B-400255, Aug. 7, 2008, 2008 CPD ¶ 155 at 3-4.



2. My next Fair Opportunity I am going to make everyone - offerors, CO, reviewers & evaluators - submit sworn statements acknowledging the acquisition is not subject to FAR 15.  I will also change the word 'offerors' to 'y'all' and 'proposal' to 'stuff' in the solicitation (to be re-named the 'Request for Stuff' or RFS).

3. The lack of participation and the under-budgeting are both due to the requirement being overly complicated (IMO).

Z, in  your point number 1), the cited GAO decision never said that the agency would have to re-open the competition to all eligible offerors. It specifically stated that UNICOR should  have re-opened competition by amending the solicitation to “all offerors” (those are the six firms who submitted proposals).

Instead, after receipt of proposals, UNIiCOR noticed an error in the estimated quantities.  Then the KO adjusted to the line item total prices of the six proposals to reflect internally corrected quantities of materials and then selected the successful proposer.  

The protester was one of the 6 offerors. The protester stated that it would have revised it’s prices had the competition been reopened to reflect the corrected quantities.

There was no requirement to amend and resolicit proposals from “all eligible offerors”. 

In actuality, the GAO did not sustain the protest, either. 

https://www.gao.gov/decisions/bidpro/400255.htm

Your advisers need to go back to the drawing board and find another decision that would support the determination that you described here concerning “all eligible offerors”...

For future reference to somone using  this thread for guidance in a similar situation:

I don’t agree that the agency would  necessarily have to re-solicit all prospective  offerors (including, here the other pool members who didn’t initially propose on the task order) simply to move some of the activities to options. That was part of the original question.

Even if considered a “material change”, I don’t think that simply moving some activities to optional CLINs while seeking additional funds is a cardinal change. The agency awarded the task order at higher price than initially funded, which apparently wasn’t something that would have affected competition. 

The overall scope of the task order wouldn’t have changed by moving some activities to optional CLINs.  The offerors would have had to price Ithe same.activities either way. 

There was no indication that merely making some of the activities options would make the scope or activities any more or less complex than by including all activities in the base task order.  I don’t see where this would have allowed or enticed more pool members to submit proposals initially. 

The rest of the pool wouldn’t be “interested parties” in line for award in the event of a GAO protest, if applicable. 

Simply stating here, for the record, that I don’t agree with the reason stated for not being able to use options without re-soliciting task order proposals from the full pool in the case of an ID/IQ task order competition.

My opinion would be the same concerning whether or not having to re-open competition to the public in the event for a single award  or new ID/IQ contract.

The 2008 Murray-Benjamin Electric Decision referenced by Z for being required to re-solicit all pool members if they had moved some activities to optional CLINs was a commercial item solicitation.

Actually, the decision referenced Part 15 .206(a) for requirements if the agency makes material changes to  the requirements or terms and conditions after receipt of proposals.

Not sure why Part 15 would be cited as applicable to  a commercial acquisition. And I don't see where it is applicable to a 16.5 task order competition, unless the competition is citing Part 15 procedures.  

At any rate, Paragraph 15.206(a) leads one to FAR 15.2:06(c) highlighted below:

Quote

15.206   Amending the solicitation.

(a) When, either before or after receipt of proposals, the Government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation. 

(b) Amendments issued before the established time and date for receipt of proposals shall be issued to all parties receiving the solicitation.

(c) Amendments issued after the established time and date for receipt of proposals shall be issued to all offerors that have not been eliminated from the competition.

So, why did the GAO refer to "all offerors", anyway, when it's reference limits the requirement to issue amendments to only those offerors who have not been eliminated from the competition?

The referenced 2008 Murray-Benjamin GAO Decision doesn't’ serve as any basis to extend  “fair opportunity” to any pool members who didn’t respond to a task order competition initially.  They aren't "offerors".

All pool members had a fair opportunity to submit proposals for the same requirements as awarded at price higher than initially funded. I don’t see where using options for the same scope of work would have significantly affected the overall price either. 

For the record, we routinely issued amendments during Part 15 source selections to only those offerors still in the competition. Part 16.5 task order competitions are (should be) less formal than Part 15 source selections, not MORE formal.

Even if you box yourself in to using Part 15 procedures for task order competitions, that doesn't extend "fair opportunity" to include re-opening competition to non-offerors for your situation.

On ‎9‎/‎28‎/‎2018 at 11:54 AM, General.Zhukov said:

Anticlimactic follow-up.  We got the $150, mostly from nickels and dimes from under our sofa cushions. So moot.

1. The determination was that I would have to re-open the solicitation to all eligible offerors (the original10) because making things options is a material change.

    

• Where an agency’s requirements change in a material way after a solicitation has been issued, the agency must generally issue an amendment and afford all offerors an opportunity to compete for its changed requirements. Murray-Benjamin Elec. Co., L.P., B-400255, Aug. 7, 2008, 2008 CPD ¶ 155 at 3-4.

2. My next Fair Opportunity I am going to make everyone - offerors, CO, reviewers & evaluators - submit sworn statements acknowledging the acquisition is not subject to FAR 15.  I will also change the word 'offerors' to 'y'all' and 'proposal' to 'stuff' in the solicitation (to be re-named the 'Request for Stuff' or RFS).

3. The lack of participation and the under-budgeting are both due to the requirement being overly complicated (IMO).

I fear over complication in the manner chosen for the selection process of a TO as you express and in this thread as well.   Too much concentration on FAR part 15!  Get rid of the idea of even using it (emphasis added).  Instead read and re-read FAR 16.505(b) exercise broad discretion in developing appropriate order placement procedures, keep submission requirements to a minimum!   In fact just make your CO's, reviewers and evaluators read it too!    The offerors will love you and your TO award efforts will be much simpler.  

On ‎9‎/‎28‎/‎2018 at 2:26 PM, Vern Edwards said:

Next time, tell the contractors that any that do not submit an offer (or quote) in response to an RFTOP will not be notified of any amendments, including amendments that make material changes in the requirement. (I presume that such procedure will not violate the terms of your contract.)

This too is a good route but for goodness sake get rid of offer, quote, amendment or anything that insinuates a FAR part 13 or 15 process.   You send notices of fair opportunity, you send changes to notices of fair opportunity and you get answers to fair opportunity notices.  Keep it in FAR 16.505(b) and use the innovation that you have been granted.

Thanks again for the great advice.

The answer in regard to 16.505 competitions is "whatever approach is in the best interests of the Government".  If you think it might result in a better price, send out to all who you originally sent it to - why not?  Unless it's over $10M...

Part 16.505 is as close to exercising common business sense as the Government gets. Learn it. Live it. Love it.

REA'n Maker said:

The answer in regard to 16.505 competitions is "whatever approach is in the best interests of the Government".

What about the approach that is specified in the contract?

Retreadfed said:

What about the approach that is specified in the contract?

Why would I box myself in with contract language when I am allowed to use my professional judgement based on the specifics of the scenario at hand?  1102's are at the top of the government pay scale for a good reason.

REA'n Maker said:

Why would I box myself in with contract language when I am allowed to use my professional judgement based on the specifics of the scenario at hand?

Because hopefully you have complied with the requirements of FAR 16.505(b), which state in part

 the contracting officer must—

(A) Develop placement procedures that will provide each awardee a fair opportunity to be considered for each order and that reflect the requirement and other aspects of the contracting environment;

(B) Not use any method (such as allocation or designation of any preferred awardee) that would not result in fair consideration being given to all awardees prior to placing each order;

(C) Tailor the procedures to each acquisition;

(D) Include the procedures in the solicitation and the contract; and

(E) Consider price or cost under each order as one of the factors in the selection decision.

On 10/5/2018 at 5:28 PM, Retreadfed said:

(D) Include the procedures in the solicitation and the contract;

I can say the procedure involves "the best value combination of price and delivery" and leave it at that.  

I wasn't suggesting I can decide after I get the offers; I was saying that I can set the general parameters of what I will look at and use CO discretion based on the responses.  Fair Opportunity is the only real requirement for a 16.505 Order.

Per your cite:

Quote

(ii) The contracting officer may exercise broad discretion in developing appropriate order placement procedures. .

REA'n Maker said:

I can say the procedure involves "the best value combination of price and delivery" and leave it at that.

That is only a small portion of the order placement procedure.  I don't think that argument passes the straight face test in regard to what 16.505 requires.

REA'n Maker said:

I can say the procedure involves "the best value combination of price and delivery" and leave it at that.  

I wasn't suggesting I can decide after I get the offers; I was saying that I can set the general parameters of what I will look at and use CO discretion based on the responses.  Fair Opportunity is the only real requirement for a 16.505 Order.

Per your cite:

The term “best value” means only, to industry, the best balance or combination of price and other considerations.   “Tell me what you have and how much it cost then I’ll make up my mind” is unfair and essentially worthless to Industry, when there is a task order competition amongst other contract holders to win your business.  Industry wouldn’t know what your priorities are.  Do you want the cheapest? The best? Highly qualified? Average qualifications?

joel hoffman said:

“Tell me what you have and how much it cost then I’ll make up my mind” is unfair and essentially worthless to Industry

I told them the basis for my decision in this example:  price and delivery  for a compliant product, i.e., give me your best price for your best delivery.  There is nothing in the FAR which requires a (literal) calculated decision below $5M.  

Quote

dis·cre·tion

dəˈskreSH(ə)n/

noun

the freedom to decide what should be done in a particular situation.

And the FAR allows "broad" discretion at that.

REA'n Maker said:

I told them the basis for my decision in this example:  price and delivery  for a compliant product, i.e., give me your best price for your best delivery.  There is nothing in the FAR which requires a (literal) calculated decision below $5M.  

And the FAR allows "broad" discretion at that.

That’s more than what you said above. It is still ambiguous though. 

I’m guessing as a supplier that you want the fastest delivery at my best price for that delivery.  Then you will compare prices for that time same frame. 

But if someone else or I can deliver one day later for meaningfully less money, then will you select that?

Do you want overnight delivery at substantially more cost? 

it would be clearer if you said what your priority is and ask for alternate delivery rates and timeframes. 

If I have to take the time to go through all the bureaucratic BS to prepare a quote for a government contract, then i would expect that it would be reasonable  for you to provide enough info for me to be able to clearly understand what you want. Plus it involves very little extra effort to quote you the shipping options.

Joel,

If a solicitation cites delivery time and price as the basis for selecting the awardee, the offeror can package its offer anyway it wants to -- for example, it can quote $45 ea for three-day delivery, $40/ a for ten-day delivery, and $25 ea for thirty-day delivery.  Another offeror might submit $44 ea for five-day delivery and $22 ea for forty-day delivery.  From the five options, the contracting officer can select the best value.

ji20874 said:

Joel,

If a solicitation cites delivery time and price as the basis for selecting the awardee, the offeror can package its offer anyway it wants to -- for example, it can quote $45 ea for three-day delivery, $40/ a for ten-day delivery, and $25 ea for thirty-day delivery.  Another offeror might submit $44 ea for five-day delivery and $22 ea for forty-day delivery.  From the five options, the contracting officer can select the best value.

Agreed, Ji.  In fact that is what I suggested above.  I said:  “it would be clearer if you said what your priority is and ask for alternate delivery rates and timeframes.” 

The given example was: “[G]ive me your best price for your best delivery.”

What the heck does that mean?  Besides not being clear, it would be ridiculous to spend the tax payers’ money to pay a premium price for a one or two day delivery if the government won’t need it until some later date. 

Over-simplifying it simply to make the KO’s or specialists job easier may not make good business sense.

joel hoffman said:

Over-simplifying it simply to make the KO’s or specialists job easier may not make good business sense.

I wholly agree with this statement as a general proposition.  I also aver that over-complicating it may not make good business sense.  

In federal agency procurements, I tend to see more over-complications than over-simplifications.  If someone (like REA’n Maker) feels a need to simplify our processes, and an occasional over-simplification results, I’m okay with that.  In any particular procurement, any prospective offeror is free to ask a clarifying question.  

I think REA’n Maker is okay.

ji20874 said:

I wholly agree with this statement as a general proposition.  I also aver that over-complicating it may not make good business sense.  

In federal agency procurements, I tend to see more over-complications than over-simplifications.  If someone (like REA’n Maker) feels a need to simplify our processes, and an occasional over-simplification results, I’m okay with that.  In any particular procurement, any prospective offeror is free to ask a clarifying question.  

I think REA’n Maker is okay.

I think that the point I want to make is that you need to tell industry what your needs, priorities and desires are so that they can meet them. When I started working source selections in 1990,  the evaluation criteria was obscure and understated or omitted from solicitations, in an apparent concern that industry would game us or possibly protest the selection.

I overcame that thinking. We described the general process and added more detailed  evaluation criteria. Guess what? The industry was able to determine what was important and how to meet our expectations. The quality of proposals, solutions and pricing improved.

I agree with simplification for task orders, etc. but you still need to identify your priorities, needs and constraints so that industry can meet your needs.    I love negotiating and also buying in the construction market. Contractors and the folks at the supply houses help me find the best technical and economic (best value) solutions to my needs.

ji20874 said:

In any particular procurement, any prospective offeror is free to ask a clarifying question.

But in many instances, the government will not answer or give a meaningful answer.  You don't know how many times the response comes back, "the solicitation says what it says."

joel hoffman said:

you still need to identify your priorities, needs and constraints so that industry can meet your needs

How about, "I recommend as a best practice that you still need to identify your priorities, needs_,_ and constraints so that industry can best meet your needs"?  FAR 16.505 doesn't require a contracting officer to list priorities, needs, and constraints in the announcement/solicitation when ordering under multiple-award IDIQ contracts, so to say that a contracting officer needs to include this information really isn't accurate.  

Between the SAT and $5.5 Million, contracting officers need provide only  "a clear description of the supplies to be delivered or the services to he performed and the basis upon which the selection will be made."  Over $5.5 Million, contracting officers must go a little further, providing "a clear statement of the agency's requirements" and "[d]isclosure of the significant factors and subfactors . . . that the agency expects to consider in evaluating proposals, and their relative importance."  So clearly, the contracting officer has a lower burden for orders up to $5.5 Million and a greater burden for orders over $5.5 Million.

A "clear statement of the agency's requirements" could encompass information such as "priorities, needs, and constraints," but a clear statement of the agency's requirements is required only for orders exceeding $5.5 Million.  A wise contracting officer will provide as much information as is practicable, considering all the circumstances, so that he or she can get the best offers appropriate to the circumstances.

I want to reiterate that this thread majority topic is fair opportunity under FAR 16.505.  I continue to fear that the continuing discussion confuses the complexity of a FAR part 15 trade-off procurement with that discretionary approach (within limited sideboards) that the FAR allows under fair opportunity.

With this said ji's posts continue to emphasize the minimalist approach noted by the FAR to provide all holders of the parent contract a fair opportunity.  Comments I might add that spin off of REA'n Makers approach which I agree meet the intent of 16.505(b) for procurements up to $5million.  Why?  I have not seen a position that supports that REA'n Makers approach does not meet the standard of 16.505(b)(1)(iii)(B).   I say this noting as well that if basis used by REA'n Maker works truly is as reflected, and parties to the contract find no quarrel with it then is it not fair opportunity in their combined view?

Retreadfed said:

But in many instances, the government will not answer or give a meaningful answer.  You don't know how many times the response comes back, "the solicitation says what it says."

Noting my above comments I then wonder if Retread's statement (above) is with regard to a fair opportunity process or a FAR part 15 process as by my experience a fair opportunity process that follows the ideal of FAR subpart 16.505(b) does and has encouraged communication different than portrayed by the statement.

Carl, if we go back to the original post, General Z was asking about an overall process for awarding an order.  He was not asking about the evaluation criteria that should be used to make the award or how to state the agency's needs.  The evaluation criteria are only a portion of the overall procedures that are to be used to issue an order.  Unfortunately, this discussion has digressed to a discussion of evaluation criteria or statement of needs instead of what placement procedure is applicable in General Z's situation.  To me, he was not asking about evaluation criteria or how to state agency needs.

General Z’s question was answered long ago in the thread. Z then reported what happened and why. 

I disagreed with the determination that he cited.

 The referenced GAO decision didn’t support the determination.  It wasnt even relevant, in my opinion.