Proposal re-evaluation

obinnae said:

Situation

So just to clarify.   It was the GWAC that you were awarded that was terminated for convenience or it was an order under the GWAC that you were awarded and that was since terminated?

Just now, C Culham said:

So just to clarify.   It was the GWAC that you were awarded that was terminated for convenience or it was an order under the GWAC that you were awarded and that was since terminated?

Sorry.  Task order under the GWAC that was terminated.

Well, do you want the business?  If so, participate in the process in good faith.  Best wishes!

Perhaps you might consider sharing any evidence of agency malfeasance with the agency's inspector general.

Just now, ji20874 said:

Well, do you want the business?  If so, participate in the process in good faith.  Best wishes!

Perhaps you might consider sharing any evidence of agency malfeasance with the agency's inspector general.

Oh to be clear, we are absolutely playing ball and participating in the re-submission process.  We are operating in good faith, have been extremely responsive and communicative with the CO, and are hoping for the best in the end.

But you know as well as I do, going to the IG = burning a bridge with that agency's contracting office for life.  That's part of my frustration - there is no real recourse on my side, even if there is a lot of smoke from a lot of different angles.

Okay, then don't go to the IG.  Best wishes!

ji20874 said:

Okay, then don't go to the IG.  Best wishes!

Thank you!

So without any research, just thoughts.....

obinnae said:

Assuming evaluation criteria didn't change, is there any above-board way that the contract could be awarded to the 'firm they wanted' this go around?

Always a chance. In a scenario of Award, T4C, and reevaluate original proposals suggests that the Government might have erred the first time around and decided to start all over.   Might have been dictated by somebody like GAO.   Have you asked the CO specifically why they are and the basis for how they are doing it?  Now some would say you can ask but the government does not have to answer.   My view is a little different under the general principle of fair dealing.  Hopefully the CO will answer and it may give you insight at least that would help you decide whether you will play, step away, or complain in the rightful venue about the process.   For the latter it could be a protest, a matter raised to the ombudsman, OIG, etc.  Or, even the CO for the GWAC if your think the process under the GWAC use is flawed.   Remember the GWAC is the guiding light as to a selection process for awarding TOs.

obinnae said:

My presumption is that the subjective nature of evaluation criteria would make it very easy for the govt to get who they want, regardless of proposals and we should see the writing on the wall?

See my response above.

C Culham said:

So without any research, just thoughts.....

Always a chance. In a scenario of Award, T4C, and reevaluate original proposals suggests that the Government might have erred the first time around and decided to start all over.   Might have been dictated by somebody like GAO.   Have you asked the CO specifically why they are and the basis for how they are doing it?  Now some would say you can ask but the government does not have to answer.   My view is a little different under the general principle of fair dealing.  Hopefully the CO will answer and it may give you insight at least that would help you decide whether you will play, step away, or complain in the rightful venue about the process.   For the latter it could be a protest, a matter raised to the ombudsman, OIG, etc.  Or, even the CO for the GWAC if your think the process under the GWAC use is flawed.   Remember the GWAC is the guiding light as to a selection process for awarding TOs.

See my response above.

This is very helpful.  Thank you.  Some additional detail - nothing publicly posted on the GAO docket, so I presume the GAO didn't force the move to re-evaluate?  We have asked the CO over and over for clarity and understanding.  The response has always been something to the effect of "this is an active solicitation so we can't share any details."  Their hesitation to provide any details whatsoever, especially given the the abrupt termination, just raises more confusion/red flags.

Completely understand our right to protest IF it is awarded elsewhere, but again the question is as a SB, do we bite off a massive legal bill when it certainly appears the govt has a winner in mind (again assuming it is awarded elsewhere).  

Again, my question would be - if the evaluation factors don't change, how could they determine as part of a re-evaluation that the other bidder was the fair and honest winner?

Just now, obinnae said:

"this is an active solicitation so we can't share any details."

Well my response might be - Thank you but in truth sir it is not an active solicitation.  It is a request made under the fair opportunity standards of the GWAC that was awarded and terminated as such the rules of the GWAC apply.   Could you explain the fair opportunity became "active" again.   Was it a protest and a governing body ordered it or...?   The GWAC affords us a fair opportunity to compete and it would very beneficial to affording fair opportunity to us if you could provide information about how and why the competition for the task order has been reopened after award was made and hence terminated.

Then again.....but you get the idea.

C Culham said:

Well my response might be - Thank you but in truth sir it is not an active solicitation.  It is a request made under the fair opportunity standards of the GWAC that was awarded and terminated as such the rules of the GWAC apply.   Could you explain the fair opportunity became "active" again.   Was it a protest and a governing body ordered it or...?   The GWAC affords us a fair opportunity to compete and it would very beneficial to affording fair opportunity to us if you could provide information about how and why the competition for the task order has been reopened after award was made and hence terminated.

Then again.....but you get the idea.

Yup.  We engaged legal and tried to get info out of them.  They would share nothing (and frankly most of the time took months to respond to any communications).  Most recent response was, and I quote:  " I can assure you that '''govt agency''' is complying with the responsibilities outlined in the Procurement Integrity Act.

Now you see my frustration and helplessness.  Again, we're a small biz and put a LOT into the capture as this was not a small award.  To have it potentially snatched away with no real explanation is tough. 

Really appreciate your responsiveness though, C Culham.  Thank you!!!

Just now, obinnae said:

Thank you!!!

You are welcome!  I will walk away scratching my head.  I will just say it.....smoke and mirrors!

I'm no lawyer and not an expert at anything remotely close to this topic, but I'm not sure how the GVT could terminate a contract and then use the (months old?) proposals to re-do the award, outside of a protest or something like that.   But assuming this is okay...

If its a GWAC, hit up the GWAC ACO.  They might know something. Probably not, but worth a call.  They probably would be interested to know if the buying agency is violating the GWAC ordering procedures in some egregious way.  But there are lots of potential reasons for the seemingly shady behavior.  You'll probably never know for sure, short of an uncharacteristically frank and detailed debriefing, or going to court.

obinnae said:

if the evaluation factors don't change, how could they determine as part of a re-evaluation that the other bidder was the fair and honest winner?

One possibility is the source selection / evaluation process had a major flaw, error or unexpected and difficult issue.  Late and weird clarification questions are a hint. 

But it could be something totally different - I once had a SS where, right in the middle, we were informed of some pretty serious conflict of interest allegations, which took months to resolve, and given the nature of the allegations, we couldn't say much about it to anyone, had to be all mysterious and secret-agent-like.

General.Zhukov said:

I'm no lawyer and not an expert at anything remotely close to this topic, but I'm not sure how the GVT could terminate a contract and then use the (months old?) proposals to re-do the award, outside of a protest or something like that.   But assuming this is okay...

If its a GWAC, hit up the GWAC ACO.  They might know something. Probably not, but worth a call.  They probably would be interested to know if the buying agency is violating the GWAC ordering procedures in some egregious way.  But there are lots of potential reasons for the seemingly shady behavior.  You'll probably never know for sure, short of an uncharacteristically frank and detailed debriefing, or going to court.

One possibility is the source selection / evaluation process had a major flaw, error or unexpected and difficult issue.  Late and weird clarification questions are a hint. 

But it could be something totally different - I once had a SS where, right in the middle, we were informed of some pretty serious conflict of interest allegations, which took months to resolve, and given the nature of the allegations, we couldn't say much about it to anyone, had to be all mysterious and secret-agent-like.

Thanks for the response...answering your points:

Re: how they could terminate and then use months old proposals.  They DID ask us to reconfirm our rates, but they never provided an answer as to why the initial contract award was killed.  Again - that is my frustration.  Perhaps everything is on the up and up (but why be so secretive about things?), but it certainly appears like someone on the fed side didn't get who they wanted, told the CO to cancel it, and is looking for way to get it to who they want.  We'll see if the award goes to them in the end.

Re: reaching out to the GWAC ACO, I am thinking that ship has sailed.  And as stated before, in my experience, unless encouraged to do so, throwing the CO under the bus by contacting the IG/GAO or GWAC ACO and explaining the situation NEVER ends well.  A pissed off CO is not good.

Unfortunately, we have engaged our legal folks throughout the process.  They've basically stated that unfortunately, the govt can do whatever the F they want w/ respect to terminating for convenience and they can claim whatever they want as part of the re-evaluation.  We're completely at their mercy as to how they want to re-evaluate and award.  Our only recourse would be to file a post award protest - which would come at a substantial cost.

You're right re: probably never knowing what truly happened here :(.

Not saying this is what happened but I’ve seen similar things a couple times.  In both instances the government admitted errors in evaluation after debriefing an unsuccessful offeror.

formerfed said:

Not saying this is what happened but I’ve seen similar things a couple times.  In both instances the government admitted errors in evaluation after debriefing an unsuccessful offeror.

This would be even worse!  They'd have seen their strengths/weaknesses and be given a chance to fix those in the re-submission.  We did not receive a debrief as the contract cancellation happened relatively quickly after award.  My guess is that the losers did not receive a debrief either.  That would be TOO shady!

For anyone at home waiting anxiously, update is we got yet another set of clarifying questions from the govt.  I am thinking they're looking for a 'gotcha' to re-award it differently?

Existing incumbent is closing in on 3 years (not an exaggeration) of sole source bridges while they try to get this awarded!

Do you want the business?  If so, participate in the process in good faith.  Best wishes!

ji20874 said:

Do you want the business?  If so, participate in the process in good faith.  Best wishes!

That we are!

Hey gang.  Thanks again for all the advice and guidance on this matter!  It is very much appreciated!  I'd like to provide some an update and some additional detail as I have some more questions for the WIFCON gurus :).

1.  We were notified that we re-won the award after re-evaluation almost a year to the day of the original award. Hooray!

2. But not so fast!  The same unhappy vendor that protested the initial award a year ago lodged 2 new protests immediately upon our re-award notice.  In the hopes of better understanding a path forward, I'm providing some additional detail here:  The protest from last summer was with SBA over a size standard concern.  SBA immediately denied the protest (govt did not require a size recertification at the task order level).  The unhappy vendor appealed the decision to OHA.  Before the appeal could be decided, the govt cancelled for convenience.

3.  Fast forward 1 year to when we re-win.  This time the unhappy vendor protested the new award to both SBA (once again immediately denied) AND GAO (protesting the size standard issue).  We received a stop work order while the protest plays out.

4.  What we have heard off the record is that the government has told GAO they will 'take corrective action and re-evaluate procurement strategy.'  This is not yet in the GAO docket but likely coming.  We have heard a cancelation is imminent and the procurement will be completely tossed.  There are a lot of other rumors that I will not share as they are just hearsay, but regardless, it sounds like despite being legally awarded the contract twice, and having two protests against the award denied, the government will proactively terminate the award (again).

So obviously, very frustrated here and curious the opinions of the experts on the following:

1.  What legal options do we have, if any?

2.  Is the government required to tell us why they are cancelling the award (assuming it happens)?  If you recall, last time we got a cancelation, we received zero explanation as to why and the govt would not answer calls or emails on the matter.

3.  Assuming a cancelation happens, it's likely another year+ until a new solicitation is released and new award made.  In the meantime, the large business incumbent (who strangely enough is NOT the unhappy vendor that is protesting nor are they backing the unhappy vendor) has been getting short term, non-competed bridge contracts since July 2018 and potentially looking at another year plus of similar bridge action.  Is this in violation of the FAR in any way shape or form?  Can the government just bridge and add $ to a contract in perpetuity if its contracting shop can't get a new award in place?  

Again, thanks so much for guidance, support, and advice!

Signed,

Jaded Govt Contractor

obinnae said:

Is this in violation of the FAR in any way shape or form?

No. See Chapman Law Firm Company, LPA, GAO Dec. B-296847, Sept. 28, 2005.

What else can they do if they have a requirement that must be met?

Admittedly I don’t fully understand every aspect of your situation. It seems you were all sketched out the Government was doing something improper when you received a T4C notice a year ago, but actually they may have just been correcting an error made in their initial evaluation.  

I don’t feel I have the whole story, or I don’t understand why the agency did what they did. You said there was a protest to the SBA last year. Those protests don’t take a year, they  generally take less than a month. I suppose an appeal could take longer but not a year from my experience.

You would normally stay the award given a protest, so I understand your stop work order. If the contractor protests a size standard issue to the GAO, normally, GAO will just tell you they don’t have jurisdiction to decide on the matter. Of course I haven’t seen the protest.

There’s generally nothing wrong awarding bridge contracts. would you expect an agency to go without a service or thing they need just because someone whines about it? Sure DOD gave up on Jedi, Homeland security and lots of other agencies have gave up, but I assume we’re not talking about a multibillion dollar effort here.

Give the CO the benefit of the doubt that they are working the procurement in a good faith effort and will let you know what you need to know when you need to know it.

That’s my red eyed, tired, Monday morning proceeded by preseason football weekend unsupported amateur thought.

dsmith101abn said:

Admittedly I don’t fully understand every aspect of your situation. It seems you were all sketched out the Government was doing something improper when you received a T4C notice a year ago, but actually they may have just been correcting an error made in their initial evaluation.  

I don’t feel I have the whole story, or I don’t understand why the agency did what they did. You said there was a protest to the SBA last year. Those protests don’t take a year, they  generally take less than a month. I suppose an appeal could take longer but not a year from my experience.

You would normally stay the award given a protest, so I understand your stop work order. If the contractor protests a size standard issue to the GAO, normally, GAO will just tell you they don’t have jurisdiction to decide on the matter. Of course I haven’t seen the protest.

There’s generally nothing wrong awarding bridge contracts. would you expect an agency to go without a service or thing they need just because someone whines about it? Sure DOD gave up on Jedi, Homeland security and lots of other agencies have gave up, but I assume we’re not talking about a multibillion dollar effort here.

Give the CO the benefit of the doubt that they are working the procurement in a good faith effort and will let you know what you need to know when you need to know it.

That’s my red eyed, tired, Monday morning proceeded by preseason football weekend unsupported amateur thought.

Hey sorry if it wasn't clear.  In summary: 

We received initial award last summer.  SBA size protest filed.  SBA size protest denied within 1 week.  SBA size protest appeal filed with OHA.  Before decision could be made on the appeal, corrective action taken, T4C message sent, and proposals re-evaluated.  This took 1 year and initial proposals were submitted in January 2020.

1 year later.  We received a re-award.  SBA size protest and GAO protest filed simultaneously.  SBA size protest denied within 1 week.  Before GAO decision is made, rumor is corrective action coming and procurement likely to be cancelled altogether.

So in summary, we won, protest denied, govt proactively took corrective action.  1 year later, we won again, protest denied again, govt likely to again take corrective action and cancel.  WTF?!

I understand the need for services argument completely.  Just seems like a dysfunctional contracting shop could legitimately cause a contract to go on in perpetuity without competition which flies against the idea of competition in the FAR.

I suppose the part i'm confused about is if the procurement was protested to the SBA and GAO based on challenging the business size of the contractor who got the award, and the SBA denied that challenge, and assuming GAO will tell you they don't have jurisdiction over deciding on small business challenges, then what corrective action is the agency taking and why?

Is the protester also the incumbent?

Regardless of the answer to the above, you can file as an intervenor in the GAO protest -- if you did, your attorney would have immediate knowledge of the protester's and the agency's filings, and could make filings of its own.  It might be best is you used outside counsel to get more complete access to the record.

dsmith101abn said:

I suppose the part i'm confused about is if the procurement was protested to the SBA and GAO based on challenging the business size of the contractor who got the award, and the SBA denied that challenge, and assuming GAO will tell you they don't have jurisdiction over deciding on small business challenges, then what corrective action is the agency taking and why?

That I couldn't answer.  We haven't gotten the chance to see GAO state that they don't have jurisdiction, but that is what our lawyer is saying would be the likely outcome.  If off the record discussions are correct, there will be corrective action and another T4C coming.  Hence one of my questions - must the govt tell us WHY they are T4C?

ji20874 said:

Is the protester also the incumbent?

Regardless of the answer to the above, you can file as an intervenor in the case -- if you did, your attorney would have immediate knowledge of the protester's and the agency's filings, and could make filings of its own.  It might be best is you used outside counsel to get more complete access to the record.

No the protestor is not the incumbent.  And we did file as an intervenor.  The GAO protest was specific to the size standard concern.

obinnae said:

Hence one of my questions - must the govt tell us WHY they are T4C?

No.

Read the contract clause at FAR 52.233-3, Protest After Award.  You might be entitled to an equitable adjustment.

obinnae said:

must the govt tell us WHY they are T4C?

Well it might be a more intricate question than one might assume as I wonder how being an intervenor, or not, plays out with regard to either a FOIA or GAO's disclosure policy or both?  Expert counsel in either of the policies would give you a more succinct answer, as I am just wondering.

GAO protest now listed as officially dismissed.  Argh!

Received the following today...guessing we have zero legal recourse? 

Unfortunately this is consistent with the rumors we heard which were:  The CO took a meeting with the unhappy vendor post award, against the govt's legal advice last week.  Several days later, the CO determined there was 'new scope' that the government hadn't factored in FOR THE ENTIRE YEAR WHICH THEY HAD THE PROPOSALS TO RE-EVALUATE.  But suddenly, two weeks post award and post meeting with unhappy vendor, came to realize these new requirements:

"

Dear XXX

Since the release of (PWS) for XXX, there have been a series of changes that have necessitated the organizational restructuring and reorganization of XXX to address the new demands.  As a result, the XXX PWS, as written, requires updates to also address and incorporate these new demands which are having a profound impact on how the federal government operates and YYY changes to meet the new challenges.  Accordingly, XXX has determined that it is in the Agency’s best interest to terminate the award to YYY, cancel the current requirement/solicitation for XXX, and reassess the Agency’s procurement strategy.  Due to the terminated award and cancelled requirement, YYY is not offering debriefings...."

obinnae said:

...guessing we have zero legal recourse?

You should ask an attorney for legal advice.  If you used a attorney to file as intervenor on your behalf, that might be a good place to start.

Deleted.

ji20874 said:

You should ask an attorney for legal advice.  If you used a attorney to file as intervenor on your behalf, that might be a good place to start.

Well of course.  Attorney says we're dead in the water :(.  Was hoping for any alternative ideas.  Hopefully I am not beyond help per Vern :).    Thank you!!!!!