Is it permissible to show the weight factors in an RFP. This particular RFP, we wanted to show the weight. Under the Evaluation Criteria we would put the weight beside each criteria. Example:
1. Cost (25).
For specific reasons we wanted to insert it in the RFP.

By Anonymous on Thursday, April 26, 2001 - 02:40 pm:

randy:

FAR does not prohibit the disclosure of specific factor weights. Some agency FAR supplements might prohibit such disclosures.

By anon4 on Friday, April 27, 2001 - 07:43 am:

Randy,

I was wondering, why do you want to assign a weight to COST?

By joel hoffman on Friday, April 27, 2001 - 08:47 am:

Randy, years ago, the Army FAR Supplement prohibited disclosing points or weights. That was rescinded in the early 90's. However, many people still thought it was prohibited. I don't know of any other agency prohibiting disclosure. Please note that AFARS has prohibited scoring of price for as long as I've been involved in RFP's. In order to assign a "weight" to price, I believe it is necessary to score price.

I don't know if you work for an Army organization.
Regardless, I do not advocate scoring the price factor.

By the way, about 4 weeks ago, SARDA put out new policy prohibiting weighting or scoring of factors, period. All weighting or expression of extent of relative importance of evaluation factors must now be done with narrative descriptions (for Army RFP's). Happy Sails! Joel

By Monty on Monday, April 30, 2001 - 10:58 pm:

I was looking at a Navy proposal evaluation recently that did not assign weights to the evaluation factors. But the way the evaluation scheme worked, the overall rating for each offerer's proposal was equal to the rating for the lowest-rated sub-factor in the proposal. After all the evaluations were completed, all of the proposals were rated "Unacceptable."

The source selection document--which had to explain which of the "Unacceptable" proposals was the least-unacceptable--was a kind of interesting piece of logic.

By Anonymous on Tuesday, May 01, 2001 - 08:55 am:

Did'nt DoD,or a component thereof,just recently issue dicta prohibiting this practice? I thought I may have read something somewhere.

By Anon X on Tuesday, May 01, 2001 - 09:19 am:

It is entirely possible for the least important factor to render to entire proposal "unacceptable," depending on what unacceptable means.

Say that an RFP describes four factors: offer acceptability, experience, past performance, and price and says that price is significantly more important than the nonprice factors and that offer acceptability is the least important of the nonprice factors. The RFP also says that an offer is acceptable when the offeror agrees to the terms of the RFP without exception and that the Government will evaluate offer acceptability on a pass or fail basis.

If an offeror takes exception to any material term of the RFP, then based on GAO case law its offer is "unacceptable" and ineligible for contract award, even though the RFP said that offer acceptability was the least important factor.

If all of the offers received are unacceptable and the agency decides to conduct discussions in order to produce an acceptable offer at a fair and reasonable price, then when establishing the competitive range the CO should determine which offers are most susceptible of being made acceptable, which is another way of saying which is least unacceptable.

By joel hoffman on Tuesday, May 01, 2001 - 03:47 pm:

Dear 8:55 anonymous: As stated in my 27 April post, the Army has prohibited numerical scoring or weighting of factors. Happy Sails! Joel

By joel hoffman on Tuesday, May 01, 2001 - 03:53 pm:

To clarify, the Army prohibited numerical weighting of factors. Relative importance must be expressed in adjectival terms. Factors must be rated, using an adjectival or color (based on adjectival description) rating scheme. It sounds like the example you were referring to used adjectival weighting and rating schemes. Happy Sails! Joel

By Eric Ottinger on Tuesday, May 01, 2001 - 07:00 pm:

Monty and Anon X,

That's interesting.

I am not sure that you can say that anything is "not acceptable" in a negotiated procurement when it is at least possible that the deficiency can be fixed after discussions. If you are saying that a single "red," even under a small evaluation factor, is enough to justify not selecting an offer, I agree. This is true, even if the offeror scores numerous points under the remaining factors. This is a fundamental problem with numerical evaluation schemes.

Was the Navy saying that the system should be rated based on it's greatest vulnerability? That would make sense for a system to be used in combat or some other kind of very hostile environment.

Eric

By Anon X on Tuesday, May 01, 2001 - 08:26 pm:

A determination of acceptability doesn't depend on any numerical scoring technique, or adjectival or color-coded for that matter. The GAO says that if an offer fails to conform to a material requirement of an RFP it cannot be accepted. So it's "unacceptable," whether the deficiency is correctable or not. If the RFP said that the agency intends to award without discussions, and if the agency decides to stick to that course of action, then that's the end of the trail for that offeror.

If the agency decides to conduct discussions, then the CO has to decide whether or not the proposal should be included in the competitive range. That's a judgment call that depends on the offeror's ranking based on all of the evaluation factors.

I don't know what the Navy's RFP said.

By Eric B. Ottinger on Wednesday, May 02, 2001 - 12:00 pm:

Anon X,

DAU -- CON 210; Government Contract Law Course Text; (1999 Edition)

7-12. "The Government’s determination of which proposals are within the competitive range is to be based on the "cost or price and the other factors included in the solicitation." 10 U.S.C.2305(b) With the passage of Clinger-Cohen Act, the Contracting Officer can "limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals" (FAR 15.306(c)(2)). The new attitude is "when in doubt, leave out." The competitive range determination can also be amended and narrowed during discussions after the Government has notified each offeror of their significant weaknesses and deficiencies. Excluded offerors do not have to be given the opportunity to revise their proposals. In general, an agency determination will not be overturned in the absence of a showing that the agency has abused its discretion. It should be noted in this regard that the determination of the competitive range is not analogous to the determination whether an offer made by sealed bid is responsive. UNLIKE A NONRESPONSIVE BID, A NONRESPONSIVE PROPOSAL IS NOT NECESSARILY EXCLUDED FROM CONSIDERATION; IF IT IS WITHIN THE COMPETITIVE RANGE ON THE BASIS OF THE GIVEN EVALUATION CRITERIA, THE CONTRACTING OFFICER MAY ALLOW IT TO BE CLARIFIED OR SUPPLEMENTED TO CONFORM TO THE SPECIFICATIONS."

Eric

By Anon X on Wednesday, May 02, 2001 - 12:15 pm:

Why are you quoting that?

The GAO doesn't say that you can't keep an unacceptable proposal in the competitive range. The GAO says you cannot accept an unacceptable proposal. If you want to conduct discussions and if you keep the unacceptable proposal in the competitive range then you can ask the offeror to fix the proposal and accept it if the offeror does.

That does not change anything that I've said. If an agency decides to award without discussions and if the proposal is unacceptable on the basis of the least important evaluation factor the proposal is just as dead as if the factor were the most important factor. If the agency decides to conduct discussions but decides that the proposal is not within the competitive range then it is dead then, too.

By Eric Ottinger on Wednesday, May 02, 2001 - 01:07 pm:

Anon X,

Definitive responsibility criteria may also be evaluation factors. That is: The same factor may be used as both a go/no go factor and as an evaluation factor.

The reverse is not true. Evaluation factors are not definitive responsibility criteria.

I am not aware of any document called a “Determination of Acceptability.”

If an offeror has a Red (Unacceptable) for a small evaluation factor, I believe I can choose to not select that offeror, even the offeror has more points than any other offeror using a numerical rating scheme. However, if I do choose to select that offeror, I am not aware of any policy that would prevent me from selecting that offeror. It may be that the government has other ways to obtain the necessary capability, even if the offeror cannot.

Eric

By Anon X on Wednesday, May 02, 2001 - 01:32 pm:

Eric:

Are you saying that you believe that evaluation factors other than definitive responsibility criteria cannot be evaluated on a pass or fail (go/no go) basis? If that's what you're saying, please cite a regulation or GAO decision to that effect.

By Eric Ottinger on Wednesday, May 02, 2001 - 02:04 pm:

Anon X,

If the factor is evaluated on a pass/fail basis, it is a definitive responsibility criteria.

That is pretty much the definition of a "definitive evaluation criteria."

Before I start thrashing GAO decisions, etc., please identify a source for this "Determination of Acceptability," for the benefit of our readers.

Eric

By Anon X on Wednesday, May 02, 2001 - 03:11 pm:

Evaluating something on a pass or fail basis doesn't make it a definitive responsibility criterion. Only responsibility-type factors, as described in FAR 9.104 and that go to the question of an offeror's capability to perform, can be definitive responsibility criteria. See 4 CFR 21.5(c). See also Compro Computer Services, Inc., B-278651, Feb. 23, 1998, in which the GAO said:

"Definitive responsibility criteria are specific and objective standards, qualitative or quantitative, established by a contracting agency in a solicitation to measure an offeror's ability to perform a contract."

An example of a definitive responsibility criterion would be a requirement that an offeror have no less than five years of experience doing work of a certain type.

FAR 15.101 permits the evaluation of other than responsibility-type factors on a pass or fail basis by stating that agencies may use a combination of LPTA and tradeoff processes. Also, nothing in FAR or in case law prohibits the evaluation of nonprice factors other than responsibility-type factors on a pass or fail basis.

With regard to the determination of acceptability, the CO must determine whether or not proposals conform to the material terms and conditions of the solicitation, i.e., whether or not they are acceptable. That is because the GAO has said:

"In a negotiated procurement, all offerors must be provided a common basis for preparation and submission of proposals. CNA Indus. Eng'g, Inc., B-271034, June 7, 1996, 96-1 CPD ¶ 279 at 4. Any proposal that does not conform to material terms and conditions of the RFP should be considered unacceptable and may not form the basis for an award." SWR, Inc., B-284075, Feb. 16, 2000.

If an RFP says that a proposed black box must weigh no more than 15 pounds, pass or fail, that is not a definitive responsibility criterion because it does not go to the question of whether or not an offeror is capable of performing, but to the question of what the Government will accept. If an offeror proposes a black box that weights 16 pounds its proposal is unacceptable and the offeror is not eligible for award, even if box weight was the least important evaluation factor, and no matter whether you score it as "unacceptable," 0 points, or Red.

Some RFPs expressly state that the agency will make a determination of acceptability. In Matrix General, B-282192, June 10, 1999, a Dept. of Interior case, the GAO described an RFP that expressly stated that the agency would make a determination of acceptability:

"The RFP stated that award would be made to the offeror whose offer represents the best value to the government on the basis of (1) the merits of the offer and (2) the offeror's capability. RFP § M.1. The RFP stated that the agency would determine the acceptability of each offer on a pass/fail basis and that an offer is acceptable when it manifests the offeror's assent, without exception, to the terms and conditions of the RFP. RFP § M.2.a."

The GAO described another such RFP in Systems Integration and Research, Inc.; Presearch, Inc., February 16, 1999, a Navy case:

"Offerors were instructed to submit proposals in four separate volumes: offer (volume I); written capability information (volume II); supporting cost data (volume III); and oral presentation (volume IV). Id. § L-3. Section M of the RFP stated that the agency would first determine the acceptability of each offer on a pass/fail basis."

But whether the RFP expressly says so or not the CO must determine that a proposal is acceptable before selecting it for award. Failure to do so can result in a sustained protest. There have been three such sustained protests already this year.

I hope this makes my position clear to you and that you'll agree. But if it doesn't or you don't, then we can disagree and you can debate it with somebody else.

By Eric Ottinger on Thursday, May 03, 2001 - 06:40 pm:

Anon,

The reader can sense my frustration when I start resorting to large reference books. Take a look at "The Government Contracts Reference Book," Second Edition, Nash, Schooner and O'Brien.

"RESPONSIVENESS An objective, nondiscretionary determination by the contracting officer … that a bid conforms in all material respects to the IFB in order to be considered for award. … The concept of responsiveness does not apply to procurements by negotiation. …"

In the cases that you cite, the Comp. Gen. sustained the protest because the agency relaxed a requirement in the solicitation. CNA Industrial Engineering, Inc., No. B-271034., June 7, 1996 "It is a fundamental rule of competitive procurement that all offerors be provided a common basis for submission of proposals. Container Prods. Corp., B-255883, Apr. 13, 1994, 94-1 CPD 255. When an agency relaxes its requirements, either before or after receipt of proposals, it must issue a written amendment to notify all offerors of the changed requirements. Id. We will sustain a protest where an agency, without issuing a written amendment, relaxes an RFP specification to the protester's possible prejudice (e.g., where the protester would have altered its proposal to its competitive advantage had it been given the opportunity to respond to the altered requirements)."

This is not the same thing as determining that the contract per se was not valid (due to some defect in the "acceptance" process). "If, after evaluating the revised proposals, … the evaluation results in a decision in favor of GI, the award to GI may stand." Otherwise the contract should be terminated, which clearly implies that there is a valid contract to be terminated.

The requirement relaxed in CNA was in Appendix K and restated in the preproposal conference Q's and A's. Appendix K is a long way from Section M.

There are numerous formal determinations required by the FAR and DFARS. However, there is nothing termed a "Determination of Acceptability." The reader can go to the AF FARSITE and plug "Determination of Acceptability" into the search, as I did, to verify this.

Also, I put "Determination of Acceptability" into the CCH search and got 19 hits. It is clear that most of these refer to a determination of technical acceptability. All of these hits are cases; the phrase is never used in a policy document.

In Matrix General, Inc., B-282192, "The RFP stated that the agency would determine the acceptability of each offer on a pass/fail basis and that an offer is acceptable when it manifests the offeror's assent, without exception, to the terms and conditions of the RFP." This clearly a different issue and nothing to do with technical acceptability.

You are correct regarding LPTA. I should have included Low Price Technically Acceptable under the heading of go/no go factors

Definitive responsibility factors are "specific and objective standards, qualitative or quantitative, established by a contracting agency in a solicitation to measure an offeror's ability to perform a contract." (AT&T Corporation, Comptroller General Decision , No. B-260447.4, March 4, 1996) I am having a very hard time conceptualizing a go/no go evaluation factor that doesn't fit that description. Perhaps more imaginative minds could enlighten me.

As a practical matter the PCO must do a careful review of the proposal to be sure that it is responsive. We use a checklist and do this immediately after the proposals are opened. I looked for a section in the FAR which states that this must be done. I couldn't find it. Maybe I didn't look hard enough. Maybe this is taken for granted. In any case, if you wish to say that there should be something in writing to establish that the proposal has been reviewed and that the proposal is fully responsive, I would not disagree with that.

By the way--

FAR 15.101 does not explicitly permit "the evaluation of other than responsibility-type factors on a pass or fail basis by stating that agencies may use a combination of LPTA and tradeoff processes."

FAR 15.101 states "An agency can obtain best value in negotiated acquisitions by using any one or a combination of source selection approaches." The idea that this should be interpreted to mean that LPTA and Tradeoff processes can be combined is the opinion of Cibinic and Nash.

I don't really agree or disagree. However, I question whether a "go/no go" factor, for which a "no go" immediately eliminates the offeror from consideration fits anywhere in an order of importance. "Trade off" evaluation factors must fit somewhere in a stated order of importance. Accordingly, I question whether "trade off" factors mix with "go/no go" factors.

Eric

By Ron Vogt on Thursday, May 03, 2001 - 07:44 pm:

Eric, I think you are using "definitive responsibility factors" and "go/no go evaluation factors" interchangeably. They are not always the same.

"Responsibility" encompasses business factors, such as financial resources, production line capability to handle the contract, satisfactory record of integrity, necessary accounting and operational controls, etc. "Responsiveness" means conforming to the requirements of the IFB, and usually refers to the technical requirements, i.e., are you offering the exact item asked for?
In other words, ability to perform, and providing the requested item, are not the same thing.

Although I have never examined the issue, My guess is that go/no go evaluation factors can be both responsibility and responsiveness factors. Furthermore, it is easy to come up with a go/no go factor that tests responsiveness, not responsibility. For example, an item must weigh under x pounds. This can be measured on a go/no go basis, and is certainly a responsiveness factor, not responsibility.

By Anonymous on Thursday, May 03, 2001 - 08:00 pm:

Eric,

If an RFP specifies that the proposed weight of an item must be 10 pounds or less, and if an offeror takes exception to that requirement and proposes an item that weights 12 pounds, would you say that the consequence is that the offeror is "nonresponsible"?

Do you believe that the CO could award the contract to that offeror without first amending the RFP and allowing the other offerors to revise their proposals?

And if the CO can't award the contract to the offeror because the proposal does not conform to a material requirement of the RFP and the GAO would nail him if he did, then isn't it true that the CO cannot "accept" the offer and that it is, therefore, "unacceptable"?

Does the type of scoring system that the agency is using--adjectival, numerical, color coding--make any difference in that regard?

I'm going TDY now and won't have internet access for a month (OOTW), so I guess I have to drop out now.

Have fun everybody.

By joel hoffman on Friday, May 04, 2001 - 01:00 pm:

As stated above, the term "non-responsive", as defined with respect to an IFB, is not applicable per se to negotiated procurement, for various reasons.

I prefer to use the term "non-conforming". Yes, go/no-go factors and criteria are applicable to much more than responsibility type factors (those related to the ability to perform or "performance capability").

We also use go/no-go criteria to evaluate factors which are necessary to determine whether the offeror understands the scope of work and will comply with various technical criteria. Go/no-go is appropriate when there is little or no expected difference in either the industry capability or the technical approach to a specified need.

We include a statement in the "basis of award" criteria that award will be made to a conforming offer from a responsible offeror. We also define what constitutes conformance in the RFP. Happy Sails! Joel

By Eric Ottinger on Monday, May 07, 2001 - 08:34 pm:

Joel,

Thanks.

Just a few points for discussion.

· I believe that a red under any factor, even a small evaluation factor may be a de facto "no go/don't select" even if the offeror has the highest rating on all of the other factors.

· pass/fail factors may be "definitive responsibility [or performance] factors" but it may make sense to rate some evaluation factors on a pass/fail basis where it is not worth the effort to do blue/green/yellow/red. A fail would not put the offer out of the competition but it would raise a warning flag. Is this what you had in mind?

· Responsibility and qualification issues are all addressed under Section 9 in the FAR. This grouping may be more convention than logic.


Anon,

It is a common observation that every source selection has a flaw in it somewhere. If nobody protests, nobody notices. We sign the contract and the contract is a valid contract. If there is a protest, the protester will dig to find every flaw and embarrass us as much as possible. The protest may be sustained or the protest may not be sustained.

There are a few things that you can do that will make your contract void from the get-go. CPPC is most conspicuous. Most of the bad things that you might do in a source selection don't have the effect of immediately making the contract void. Even if the protest is sustained and another offeror is selected, you still have a contract, which must be terminated for the convenience of the government.

Ron,

(Back to the big thick books--) "Formation of Government Contracts," Third Edition, Cibinic and Nash, page 422.

"Contracting officers are permitted to define the responsibility criteria more specifically by including special standards of responsibility, sometimes called "definitive performance criteria, " in the solicitation. FAR 9.104-2(a) states.

'When it is necessary for a particular acquisition or class of acquisitions, the contracting officer shall develop, with the assistance of appropriate specialists, special standards of responsibility. Special standards may be particularly desirable when experience has demonstrated that unusual expertise or specialized facilities are needed for adequate contract performance. The special standards shall be set forth in the solicitation (and so identified) and shall apply to all offerors.'"

Regarding the 12 lb box and the 15 lb box. In a sense, every specification is a go/ no go selection factor if you want to look at it that way. But we usually don't.

Ability to perform is certainly a responsibility issue. If the offeror proposes something conspicuously different from what I have specified, I would question whether the offeror is capable of performing to my specification.

Anon and Ron,

I appreciate your prompt and thoughtful responses. This forum is sometimes a bit tactless and abrupt. I hope we don't discourage you, and I look forward to your future postings.

Eric

By Ron Vogt on Tuesday, May 08, 2001 - 06:40 pm:

Eric,
At the risk of beating this to death (yet I will because many look to this forum for guidance), I still believe that you are confusing the concepts of responsiveness and responsibility. Your quote from N&C is correct, but from it you seem to extrapolate a conclusion that any go/no go criteria must be definitive responsibility factors. Recall your earlier post: "If the factor is evaluated on a pass/fail basis, it is a definitive responsibility criteria." No it is not.

In your next post you state: "I am having a very hard time conceptualizing a go/no go evaluation factor that doesn't fit that description [of a definitive responsibility factor]." Again, no.

There is a whole universe of go/no go technical specifications that are responsiveness criteria, not responsibility. If the IFB calls for a 10-lb. max widget, and you offer a 12-lb. widget, you are non-responsive, even though you may be the most responsible contractor in the world and are perfectly able to provide 12-lb. widgets. The weight is most definitely a go/no criterion, but it does not measure responsibility.
On the other hand, you may offer a 10-lb. widget, but because the IFB requires a certain level of experience, you lose. This is a definitive responsibility criterion.

True, Part 9 does address both responsibility and qualifications, but that does not mean they are related concepts. Part 9 addresses suspension and debarment too.

A responsibility criterion becomes definitive when the failure to have it eliminates you from the competition. So does a responsiveness factor. "Go/no go" can make either responsiveness or responsibility definitive.

I'm not trying to be strident, and admittedly, there can be a grey area where a contractor would need special facilities to successfully produce an item, i.e. the contractor would be non-responsible for not having the facilities, and non-responsive because it could not meet the specs without the special facilities. Nevertheless, responsibility and responsiveness remain distinct conceptual issues.

By joel hoffman on Tuesday, May 08, 2001 - 08:31 pm:

Ron, I agree with you, in concept, except that I use the term "conforming" rather than "responsive", when referring to an offer which must conform to the minimum RFP requirements.

Eric, what I'm saying is, we don't award a contract to a non-conforming offeror. We will conduct discussions, to include non-conforming criteria, if there are no conforming offers or if there is/are conforming offer(s) but it is in the best interest of the Government to work with a non-corming offeror, to allow it to fix its proposal.

I would also like to point out that if we eliminate a small business offeror for an unacceptable or no-go rating on what is considered to be a "responsibility" type factor, case law says we have to get the SBA involved in the determination. Happy Sails! Joel

By Eric Ottinger on Thursday, May 10, 2001 - 06:34 pm:

Ron,

You have driven me to spend even more time with big books and large databases. Keep in mind that I do not pretend to be an expert, and my motivation is mainly to keep things simple, as much as possible by discouraging unnecessary and unsupported elaborations on the actual rules in the regulations and case law.

In our career field we have a lot of people who like to propound rules based on a little knowledge, a little speculation and a lot of their personal (egotistical and irrefutable) logic. And, we have a few people who are willing to do some digging and to keep their personal opinions separate from actual policy. I would like to see the ratio change a bit.

(By the way, strident doesn't particularly bother me, particularly in a "chat" room.)

By way of Cibinic and Nash I found this very illuminating Comp. Gen. case.

Data General Corporation, No. B-252239, (June 14, 1993)

"A definitive responsibility criterion is defined as a specific and objective standard, i.e., qualitative and quantitative, that is established by a procuring agency in a solicitation to measure a bidder's ability to perform a contract. W. H. Smith Hardware Co., B-228576, Feb. 4, 1988, 88-1 CPD 110. Such criteria do not include a bidder's performance obligations under the contract, as set forth in the specifications. Id. The portion of the IFB relied upon by Data General relates to requirements applicable to personnel "performing under the contract." The experience provision is, therefore, a performance requirement and does not establish an experience standard with which the bidder, as a condition of award, must demonstrate compliance. See Power Testing, Inc., B-197190, July 28, 1980, 80-2 CPD 72. The ability to satisfy performance requirements is a subject for the contracting officer's general responsibility determination, which we will not review absent a showing of fraud or bad faith--circumstances which are not present here. King-Fisher Co., B-236687.2, Feb. 12, 1990, 90-1 CPD 177."

Go/no-go factors based on specifications are not "definitive responsibility factors."

However, "The ability to satisfy performance requirements is a subject for the contracting officer's general responsibility determination,…"

In short, the alleged failure to satisfy a particular specification in the SOW is not a "definitive responsibility criterion," but it is nevertheless a responsibility issue to be considered in the "contracting officer's general responsibility determination."

I guess you can slice this fine by saying "the ability" is a responsibility issue and "the promise" (expressed in writing in the proposal) is a responsiveness issue.

As far as I can tell, every single clause and specification in the RFP is equally a responsiveness selection factor, if you want to look at it that way.

I put "go" and "no go" into the CCH search. Most hits were clearly traditional responsibility factors. The second most common category of hits were clearly LPTA. After that, there were a few cases that fit in the pre-qualification category.

Evidently, the typical situation where you would select a few specifications for particular attention would be a situation where you wanted to do some kind of pre-qualification test.

At first glance, Corion Corporation ( No. B-265602; B-265602.2, December 15, 1995) appears to be a good example of specifications used as go/no-go selection factors. After a more careful reading it becomes apparent that (1) all of the specifications in the SOW will be evaluated to the "degree" that the binocular samples met SOW requirements and four key specifications would be evaluated on a "go/no-go" basis. However, "Where the offeror's bid samples submitted do not meet a specified requirement, the degree of risk associated with any proposed modifications which are needed to enable it to meet the requirements in time for delivery of test and production hardware will be evaluated." Ultimately, the evaluation is not "go/no-go," it is "degree of risk."

Earlier, in this forum we discussed the feasibility of downselecting using a single factor such as cost or technical to get down to a manageable number of offers. As much as this would make sense, it appears that it would be illegal because current law requires that all of the factors which the FAR requires must be evaluated before an offeror is eliminated.

(Strictly personal opinion: ) In this light, a prequalification test of sample products would probably be OK. However, an evaluation factor which had the effect of eliminating an offer without consideration of the other factors, would probably be improper.

I've already admitted that I neglected LPTA when I argued that "definitive" go/no go factors are synonymous with "definitive responsibility factors." Also, I agree that you can regard any firm specification as a go/no-go selection factor, if you wish to do so.

However, regarding the offeror who proposes a twelve pound widget when we have specified a ten pound widget, you should keep in mind that we have specified that it must be painted black, it must get fifty miles to the gallon, it must be able to withstand 10 g's in a turn, it must fit in a specified shipping container, etc. etc.

If someone can show me a real world example of a definitive go/no go factor from an authoritative source, which is clearly not a "definitive responsibility criterion" (AKA "definitive performance criterion") and not merely a specification, I will be happy to modify my opinion. Otherwise, I will continue to resist the additional complication.

Eric

By Ron Vogt on Thursday, May 10, 2001 - 07:40 pm:

Eric,
I and several others have questioned your lumping of all "go/no go" or "pass/fail" evaluation factors into the category of definitive responsibility factors. Our point is simply that many of these factors are responsiveness factors, not responsibility, a point which you have yet to disprove. You haven't made your case any stronger by claiming that our position is based on a little knowledge and personal, egotistical logic. On fact, I find it insulting.

Worse, it is difficult to determine exactly what your position is. In an earlier post you stated: "If the factor is evaluated on a pass/fail basis, it is a definitive responsibility criteria." In your last post you state: "Go/no-go factors based on specifications are not "definitive responsibility factors."

I'll take my egotistical logic over that any day.
'Nuff said.

By Eric Ottinger on Thursday, May 10, 2001 - 10:02 pm:

Ron,

I put in the comment to the effect that I don’t mind “strident” to let you know that I didn’t have you in mind. If I didn’t make myself clear, I apologize. You should note that you are not the only “strident” voice in this thread.

I oversimplified in an earlier post, and you are quite right I have had to admit my error and modify my position.

That, "Go/no-go factors based on specifications are not "definitive responsibility factors" is the opinion of the Comp. Gen. As Casey Stengel said, “You can look it up.” Whether it supports my previous position or not, it’s authoritative and I don’t mind passing it along.

Further, the Comp. Gen. made it clear that the alleged noncompliance with a specification was clearly an issue for a “contracting officer’s general responsibility determination” not to be reviewed “absent a showing of fraud or bad faith.”

It is sufficient for my purpose that the Comp. Gen. views noncompliance with a specification as a responsibility issue.

As for this “universe of go/no go technical specifications that are responsiveness criteria, not responsibility” you’ve put your finger on my problem. I can manage a few selection factors, I can’t manage a universe.

If I may quote your earlier post (not to embarrass you but to highlight the point where we disagree) –

“"Responsibility" encompasses business factors, such as financial resources, production line capability to handle the contract, satisfactory record of integrity, necessary accounting and operational controls, etc. "Responsiveness" means conforming to the requirements of the IFB, and usually refers to the technical requirements, i.e., are you offering the exact item asked for?
In other words, ability to perform, and providing the requested item, are not the same thing.”

In the Data General case, the Comp. Gen. clearly views “the ability” to provide “the requested item” (i.e. meet the specification) as a responsibility issue.

If you want to say “ability to perform, and [promise to provide] the requested item, are not the same thing,” we don’t really have a disagreement.

Eric

By Eric Ottinger on Friday, May 11, 2001 - 10:03 am:

Ron,

For whatever it is worth—

The first draft started out as follows.


“The charm of this disagreement is that it has very little practical significance and we can’t do anyone any real harm with our opinions.

You don’t want your definition of the term “responsibility” stretched to encompass issues that don’t fit. I respect that.

I usually object when I think that one of our participants has confused his/her personal opinion or preferences with actual authoritative policy. It may seem paradoxical, but it is the most belligerently (self-confessed) logical and dogmatic participants who come up with the most diverse and contradictory opinions.”


After doing more research, I decided that I shouldn’t be so wishy-washy and edited some of this out.

I understood that you might think that my comment regarding people who rely too much on logic (and too little on research) was directed at you. To assure you that you were not my target, I put in an additional comment to the effect that “strident” was OK with me.

Again, if I didn’t make myself clear, I apologize.

Eric

By Kennedy How on Friday, May 11, 2001 - 12:17 pm:

Reading Eric's comment about the ability to provide the required item, yes or no, by itself, I can see what he's saying about responsibility. If the offeror isn't providing what you want, can we make the jump to "does he have the ability to make what we want"? My answer is "it depends on the circumstances".

Here's an example from my own experience. There was a requirement for a towing winch. Our requirement was for it to have a capacity of xTons, 105' of cable, and fit into a 2'x3' space. (There were other interface requirements, hose hookups, control leads, etc., but those were minor detail for this example). We sent RFPs to a number of winch manufacturers.

Any winch manufacturer could have made us one as a "one-off" production run, but we were more interested in off-the-shelf stuff. If a winch manufacturer came in and said, yeah we have a winch that can meet 2 of the 3 main criteria, would you consider them to be Not Responsible?

Given Eric's statement in this regard, yeah, I suppose you could, but I don't think that a PCO would go that route. There's too many potentially adverse things that could happen to go this route. The fact that you offered up a non-conforming part even though you COULD make a conforming part (albeit on that would be "Custom Made"), I think, makes the responsibility issue not appropriate.

Kennedy

By Old Timer on Sunday, May 13, 2001 - 06:17 am:

There is no charm to this disagreement and misunderstanding about these matters can lead to sustained protests. There are real differences among being nonresponsible, nonresponsive, and unacceptable.

"Responsibility" is a matter of a firm's ability (capability, capacity) to perform and/or its legal eligibility for the award, not of its willingness to assent to the terms of the solicitation or of the conformity of its bid or proposal with the terms of the solicitation. Responsibility must be determined based on the anticipated date of award, not the time of proposal submission. A bidder or offeror who is nonresponsible at the time of submission may be permitted to become responsible before award.

"Responsiveness" and "acceptability" are matters of a proposal's compliance with the terms of an IFB or an RFP and must be determined as of the time of proposal submission.

If a sealed bid is "nonresponsive" then the CO cannot allow the bidder to revise it, but must reject it and give it no further consideration. The CO may not amend the IFB after opening in order to make the bid acceptable and his or her freedom to cancel and reissue the IFB is rather strictly limited.

If a proposal is "unacceptable," in the sense with which the GAO uses that term, then it cannot be accepted (cannot be the basis for an award), but its offeror need not be eliminated from further consideration; the CO may include the offeror in the competitive range at his or her discretion and conduct discussions in order to allow or persuade the offeror to revise its proposal to make it acceptable; alternatively, the CO can amend the RFP after receipt of proposals in order to make the proposal acceptable as submitted as long as he or she gives the other offerors the chance to revise their proposals, as well.

These rules as I have described them are based on the FAR and the decisions of the GAO. They are not new and can be traced back to ASPR days.

Careless use of acquisition terminology suggests ignorance of the rules and is a great source of confusion and trouble.

By Eric Ottinger on Sunday, May 13, 2001 - 01:42 pm:

Old Timer,

Quoting one of my favorite former supervisors-- “Everything you have said is correct, but…”

The topic on the table was go/no-go selection factors.

Based on experience more than logic, I was of the opinion that the terms, “definitive responsibility criteria,” “definitive performance criteria,” “qualification criteria,” “go/no-go,” and “pass/fail” were all synonymous.

Ron objected because he felt that I was stretching the definition of “responsibility” beyond the specific issues which he understood to be responsibility issues.

This seemed like a reasonable argument to me. However, I didn't agree; in part, because responsibility covers a grab bag of loosely related issues.

However, I couldn’t see a responsiveness selection factor. My objection was more pragmatic than strictly logical. Responsiveness issues are numerous. Selection factors should be focused, not numerous.

I did a word search in CCH using “no go” w/20 “specification”.

(I expect somebody to complain loudly that I have changed my mind again. Doesn’t bother me. This is what happens when you keep an open mind and do some research.)


** “Conforming to specification requirements” may well be a responsibility issue as long as the phrase is preceded by “will be able to perform.”

Rockwell International Corporation, (Feb. 15, 1991)

“Protest challenging agency’s determination that awardee will be able to perform the contract by supplying items conforming to the specification requirements involves an affirmative determination of the awardee’s responsibility which the General Accounting Office will not review absent a showing of possible fraud or bad faith or misapplication of definitive responsibility criteria.”

Berema, Inc., (June 22, 1990)

“Furthermore, to the extent that Berema is challenging Skidril’s ability to furnish a product meeting the specification’s requirements, this is a matter concerning Berema’s responsibility. Our Office will not consider a protest of an agency’s affirmative determination of responsibility absent a showing of fraud or bad faith on the part of procurement officials or an allegation that definitive responsibility criteria were not applied. 4 C.F.R. §21.3(m)(5).”

Comptroller General’s Decision Nos. B-197236, B-197236.2, B-197236.3., (July 28, 1980)
(CCH Digest of Decision)

“Companion protests against an awardee of a vehicle rental requirements contract were dismissed because they involved matters of responsibility which GAO would not review. The specifications required that each contractor competing for the award was to provide 24-hour, 7-day a week service. The protesters argued that the awardee did not offer around-the-clock coverage because he closed his office during early morning hours and provided service only on an “on-call” basis.

Carter Chevrolet Agency, Inc., (May 01, 1996)

“In this case, there is no dispute by any of the parties that the manufacturer’s letter of commitment clause at issue in this protest constitutes a definitive responsibility criterion since it establishes a specific and objective standard to measure the offeror’s ability to perform. See Software City, B-217542, Apr. 26, 1985, 85-1 CPD 475 (specification requiring each offeror of software to obtain a manufacturer’s letter of commitment for each product offered guaranteeing the supply of the product to the offeror for the term of the contract is a definitive responsibility criterion).”


** A contracting officer can raise a specification to the level of a definitive responsibility criterion. However, it doesn’t appear that this is done very frequently.

Comptroller General’s Decision Nos. B-197236, B-197236.2, B-197236.3., (July 28, 1980)
(CCH Digest of Decision)

“ In determining whether an awardee met definitive responsibility criterion in an IFB, a contracting officer acted reasonably in giving more weight to test results from tests conducted by her agency than to test results of a competing bidder. THE IFB REQUIRED THAT A BIDDER DEMONSTRATE THAT HIS CAR RENTAL DISPATCH POINT WAS WITHIN 15 MINUTES TRAVEL FROM VARIOUS TRANSPORTATION TERMINALS. The protester contended that the proposed awardee failed to meet this requirement based on tests he conducted which allegedly showed that the distance to the awardee’s dispatch point exceeded 15 minutes by at least 4, and as much as 11, minutes. However, tests conducted by the procuring agency showed that the distance was 12.5 minutes from one terminal and 8 minutes from another. Under the circumstances, it was not unreasonable for the contracting officer to rely on the agency test results rather than the protester’s self-serving tests.”

[A requirement that an offeror must have a facility within a specified number of miles or within 30 minutes of travel time, is fairly frequent in my experience.]

Holiday Inn Lakeside City Center, (June 17, 1992)

“The IFB, issued on February 18, 1992, contemplated the award of a firm, fixed-price contract for a base year and 4 option years. The solicitation provided that award would be made to the low, responsive, responsible bidder and contained the following definitive responsibility criteria which bidders had to meet as a condition of award: (1) that the bidder’s facility be located within 5 miles of the MEPS, (2) THAT THE BIDDER’S FACILITY PASS AN INSPECTION BY THE MEPS FOR COMPLIANCE WITH THE SPECIFICATIONS, (3) that the bidder’s facility have six or less reported crimes within a 12-month period, and (4) that the bidder’s food/meal establishment have passed its last two sanitation inspections by a public health department.”

Unison Transformer Services, Inc., (Nov. 10, 1988)

“The gist of Unison’s protest is that Sun did not and could not provide sufficient documentation to establish that it satisfied the definitive responsibility criterion of having successfully reclassified a high concentration PCB transformer to non-PCB status for a minimum of 1 year without polishing.
Definitive responsibility criteria are standards established by a contracting agency in a particular procurement to measure an offeror’s ability to perform the contract. Repco, Inc., B-225496.3, Sept. 18, 1987, 87-2 CPD 272. Such criteria in effect represent the agency’s judgment that an offeror’s ability to perform in accordance with the specifications for the procurement must be measured not only against the traditional and subjectively rated factors, such as adequate facilities and financial resources, but also against more specific requirements, compliance with which at least in part can be determined objectively.”


** On second thought, I am going to take some exception with Cibinic and Nash.

“Definitive responsibility criteria must also be distinguished from specification requirements.” (“Formation of Government Contracts” Third Edition, page 425)

Since the agency’s evaluation of definitive responsibility criteria can be challenged in a protest, the protester will, not infrequently, characterize some firm specification as a definitive responsibility criterion and allege that the successful offeror failed to satisfy this “definitive responsibility criterion.”

The Comp. Gen. will typically respond with something like the following:

PTR-Precision Technologies, Inc., (Aug. 01, 1991)

"We also do not view the RFP requirement as a definitive responsibility criterion. … The requirement here for a current, proven commercial design is simply one of many design and performance requirements found in the specifications, all of which the contractor must meet, and THE CONTRACTOR’S ABILITY TO DO SO IS ENCOMPASSED BY THE CONTRACTING OFFICER’S GENERAL DETERMINATION OF RESPONSIBILITY. Neither the commercial design provision nor any of the other specification requirements establishes a separate, objectively determinable definitive criterion of responsibility. See Clausing Mach. Tools, B-216113, May 13, 1985, 85-1 CPD 533. ACCORDINGLY, THERE IS NO BASIS FOR OUR REVIEW."

Blue Tee Corporation, (Mar. 18, 1992)

“The requirement here for a commercial item is simply one of many design and performance requirements found in the specifications, all of which the contractor must meet, and the contractor’s ability to do so is encompassed by the contracting officer’s general determination of responsibility.”


(Personal Opinion: The reason that contracting officers rarely raise individual specifications to the level of definitive responsibility criteria, is not that it is irrational or improper. In most procurements it simply doesn’t make sense to single out one or a few, out of numerous specifications, for special treatment.)

If however, an RFP identifies a specific specification as a “definitive performance specification,” I don’t think the Comp. Gen would object. For instance, in the Holiday Inn case, the agency did an inspection to “verify compliance with the specifications.”

It is not objectionable for a contracting officer to single out a specification for special treatment as a “definitive responsibility criterion.” (e.g. Hotel rooms must be clean.). However, the Comp. Gen will not allow a protester to select one out of numerous specifications and characterize it as a “definitive responsibility criterion.”


By the way, I would not fault anyone for not getting this exactly right. Without a large database of Comp. Gen. cases and a word search capability, I don’t see how the typical 1102 (or lawyer) would have had either the opportunity or the occasion to dig into this.

Eric

By Old Timer on Monday, May 14, 2001 - 05:06 am:

Mr. Ottinger,

I must say that your long series of quotations and interjections shed no light either on the issues or the current state of your opinion, at least not from my perspective. But rather than inspire another long missive from you, I am content to let my last message stand and leave the field. I am, indeed, old, and I don't want to breathe my last breath while reading this sort of thing. I'm in London and I'd rather die in the British Museum arguing with some Greek about the Elgin Marbles.

Anyway, Anon X explained things well enough on May 2 at 3:11pm.

By Eric Ottinger on Monday, May 14, 2001 - 06:27 pm:

Old Timer,

Enjoy the marbles.

If you are endorsing Anon X’s opinion as well as his attitude, you are welcome to find, in some authoritative text that we all can reference, one these “Determinations of Acceptability” that he considers essential, and post it here.

If you believe there are go/no-go, definitive responsiveness selection factors endorsed by the Comp. Gen. or some other appropriate authority, you are welcome to find an example and post it here.

That should be simple enough.

(In every instance that I found, the Comp. Gen. regarded specifications used as selection factors to be either go/no-go definitive responsibility criteria or “simply one of many design and performance requirements found in the specifications, all of which the contractor must meet, and the contractor’s ability to do so is encompassed by the contracting officer’s general determination of responsibility.")

(Note my earlier comment to Ron: "Regarding the 12 lb box and the 15 lb box. In a sense, every specification is a go/ no go selection factor if you want to look at it that way. But we usually don't.")

As for my opinion-- It really doesn’t matter. I expect the reader to go back to the appropriate authorities and think things through for him (her) self.

If one of our participants presents an argument in the form, “You can’t take that path because you might step in the unicorn poop,” it might be intuitively obvious to me that an argument premised on the existence of unicorns is probably not something that I need to worry about. But it is relatively easy to demonstrate that something exists and rather difficult to demonstrate, beyond a doubt, that something does not exist.

I realize that if one of our participants really believes in the hazards of unicorn poop, it will be very difficult to convince him otherwise.

All that I can ask in that situation is that our participant produce a real unicorn rather than a hypothetical unicorn for the benefit our readers.

Eric

By Anonymous on Tuesday, May 15, 2001 - 02:19 am:

For a perfect example of one of Anon X's go/no technical evaluation factors, see Systems Management, Inc.; Qualimetrics, Inc., B-287032.3, April 16, 2001, a sustained protest.

The RFP required, among other things, that an offeror's proposed system be certified by FAA as of the date of proposal submission. The USAF awarded the contract to an offeror whose system was not so certified. The GAO held that by accepting the uncertified system USAF had relaxed the requirement for one offeror but not for the others. GAO sustained the protest and recommended a new competition and reimbursement of protest costs.

This is a clear example of a go/no go technical factor--a system was either certified or it wasn't. Since the selected offeror's system was not certified, its proposal was unacceptable (USAF could not legally accept it without first changing its requirement). The requirement had nothing to do with responsibility. If the CO had recognized the requirement for what it was--a go/no go subfactor--and made a "determination of acceptability," he or she would not have lost this costly protest.

This is all so clear and Anon X and Old Timer have made it so well that I can't understand why Eric is continuing to argue about it. Face-saving?

By George on Tuesday, May 15, 2001 - 11:40 am:

Eric:

You don't need an "authoritative text" or the "endorsement" of the Comp. Gen. An agency can use any evaluation factor that it wants in any way that it wants as long as it isn't prohibited by statute, FAR, or case law. Do you know of any statute, FAR, or case that prohibits the use of such factors?

And the term "responsiveness" does not apply in negotiated acquisitions. The correct term is "acceptability."

By Loki on Tuesday, May 15, 2001 - 02:51 pm:

In the case of the Narrow reading of Responsibility vs. the Expansive reading of Responsbility.

Please consider --

Competitive Negotiation, The Source Selection Process, 2nd Ed., Nash, Jr., Cibinic, Jr., O'Brien.

Softcover - Page 230

In the discussion of Lowest-Price, Technically Acceptable Process ---

"A key element of this technique is that the non-cost evaluation factors are all of equal importance. The failure of a proposal to meet any of the factors will preclude award to the offeror submitting the proposal. However, the offeror may be given an opportunity to cure the noncompliance through oral or written discussions if award on initial proposals will not be made and the proposal would otherwise be in the competitive range.

The term 'technically acceptable proposals' as used in the FAR refers to all non-cost factors. It includes factors dealing with the capability of the offerors, as well as the technical details of the performance that is offered in the proposal. Although FAR 15.102-2(b)(1) refers only to determinations of unacceptable past performance as requiring reference to the Small Business Administration (SBA), the same rule would apply to other lack of acceptability based on any other capability factor. See, e.g., Vantex Serv. Corp., Comp. Gen. Dec. B-266199, 96-1 CPD _29, holding that when traditional responsibility factors such as 'experience' are evaluated on a go/no-go basis, the matter must be referred to the SBA if a proposal is determined unacceptable because of such factors. See also Dynamic Aviation - Helicopters, Comp. Gen. Dec. B-274122, 96-2 CPD _166; and Environsol, Inc., Comp. Gen. Dec. B-254223, 93-2 CPD _295."

+++

So it seems to me that we need to take into account if we are, or are not, talking about TRADITIONAL RESPONSIBILITY FACTORS. What is the acid test? Here's where we come up with a difference of opinion, much like our Supreme Court. The clear-cut responsibilty factors are enumerated in the FAR, but the question is how broad is the definition (does the specific language of the FAR create clear limitations on responsibility that would support the narrow view, or does it support the expansive view?)

Eric seems to be arguing that the FAR definition of responsibility accounts for just about every technical performance criteria under the sun (you may, of course, speak for yourself). Others want a narrower field of inclusion.

I would err on the side of finding most things to be responsibility criteria, as the definition of responsibility IS broad. I don't find a restrictive or hypertechnical limitation of responsibility supported in plain language of the FAR definition of responsibility itself.

+++

Here's the FAR just for kicks --

9.104 Standards.

9.104-1 General standards.

To be determined responsible, a prospective contractor must--

(a) Have adequate financial resources to perform the contract, or the ability to obtain them (see 9.104-3(a));

(b) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;

(c) Have a satisfactory performance record (see 9.104-3(b) and Subpart 42.15). A prospective contractor shall not be determined responsible or nonresponsible solely on the basis of a lack of relevant performance history, except as provided in 9.104-2;

(d) Have a satisfactory record of integrity and business ethics including satisfactory compliance with the law including tax laws, labor and employment laws, environmental laws, antitrust laws, and consumer protection laws. [This language stayed indefinitely. Please use paragraph (e) below.]

(e) Have a satisfactory record of integrity and business ethics;

(f) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors). (See 9.104-3(a).)

(g) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them (see 9.104-3(a)); and

(h) Be otherwise qualified and eligible to receive an award under applicable laws and regulations.

9.104-2 Special standards.

(a) When it is necessary for a particular acquisition or class of acquisitions, the contracting officer shall develop, with the assistance of appropriate specialists, special standards of responsibility. Special standards may be particularly desirable when experience has demonstrated that unusual expertise or specialized facilities are needed for adequate contract performance. The special standards shall be set forth in the solicitation (and so identified) and shall apply to all offerors.


I suggest those who would like to find a narrower scope of what is a responsibility criterion to approach it from two perspectives:

1) Find a way to place the factor out of the responsibility definition in the FAR based upon the FAR definition itself.

2) Find a precedent on point.

By Ron Vogt on Tuesday, May 15, 2001 - 06:22 pm:

To Anonymous,
I feel slighted. I must not have made my points as well as Anon X and Old Timer!

Actually, I gave up. I just couldn't shake Eric from his belief that virtually all evaluation factors are responsibility criteria. This is unfortunate, because as Old Timer pointed out, there are very real differences between responsiveness and responsibility, and the consequences of not understanding this could be great.

Perhaps Eric's confusion arises from the GAO's frequent use of the phrase "ability to meet" performance requirements and specifications, and calling it part of the CO's responsibility determination. True, the ability to turn out the product falls under the category of responsibility (along with financial resources, production capacity, integrity, etc.), but actually proposing a product that meets the specifications is a matter of responsiveness.

Eric's cases may appear to support his position, but I suspect that a complete reading would find that the GAO uses the terms properly.

This debate really has to end. It's driving me closer to Old Timer's age.

By Eric Ottinger on Tuesday, May 15, 2001 - 08:11 pm:

George,

Looking for something that probably doesn’t exist gets real tedious. I don’t believe that there is a concept of “acceptability” for negotiated procurements, which is synonymous with “responsiveness” for IFBs. If, however, you can refer us to a page in Cibinic and Nash or some other appropriate authority, I will be happy to change my opinion.

I think by “acceptability” you mean “technical acceptability.” And I think you would agree that “technical acceptability” is not exactly synonymous with “responsiveness” because “responsiveness” includes several issues in addition to “technical acceptability.”

Loki,

Aren’t you the trickster who keeps changing names?

In any case thanks for the moral support.

A week ago I really had no opinion, one way or the other on these issues. The idea of a definitive selection factor, which was not a “definitive responsibility criterion,” was new to me. After reviewing Cibinic and Nash, the Deskbook, and CCH, it appeared that this significant concept had escaped the attention of these authorities. (On the other hand, maybe I wasn’t reading closely enough.)

The idea that responsibility can be stretched to encompass all of the firm specifications in the RFP is not mine but the opinion of the Comp. Gen.

See: Blue Tee Corporation, (Mar. 18, 1992)

“The requirement here for a commercial item is simply one of many design and performance requirements found in the specifications, all of which the contractor must meet, and the contractor’s ability to do so is encompassed by the contracting officer’s general determination of responsibility.”

I think we sometimes use the terms “technically acceptable” or “acceptability” outside the context of LPTA. I don’t think this does any harm as a kind of casual usage. However, I question whether there is a precise meaning outside the context of LPTA.

(I am only raising this for discussion. Any expert, well supported, opinion establishing the contrary will be welcomed.)

(In the case cited by Anon, the Comp. Gen. quotes the protester’s allegation that the successful proposal was not “technically acceptable.” The Comp. Gen. clearly agrees because the protest is sustained. However, the Comp. Gen. does not sustain the protest because the offer is not “technically acceptable.” Rather the Comp. Gen. finds that the agency has relaxed the “mandatory requirement” with the result that the playing field is not level and other offerors would have submitted better proposals if they had been allowed to propose to the same relaxed requirement.)

In any case, the FAR does not use the phrase “technically acceptable” in any context other than LPTA.

Anon,

Yes, I thought the case was relevant to our discussion.

Taking one “mandatory requirement” out of numerous “mandatory requirements” and characterizing it as a go/no-go selection factor is, I guess, a perfectly logical thing to do after the fact, when you know the outcome of the protest.

I don’t agree. To my logical mind, if you are going to take one firm requirement and make it a selection factor, you have to treat all such specifications as selection factors. Our less experienced readers should be looking for selection factors in Section M (or maybe Section L) but not in the Statement of Work or other attached specifications.

However, in this case, the Comp. Gen. never uses the terms, “go/no-go,” “factor,” or “criteria” with reference to the certification requirement. Nor is there any indication that the agency used any kind of go/no-go evaluation scheme. The evaluation was strictly colors and risk.

Ron,

I admire your self confidence. However. The concept of responsiveness doesn’t apply to negotiated procurements. That is plain English. And I can back it up with the authority of professor Nash.

When we do a source selection, we use a checklist to make sure that each proposal conforms to the solicitation. There are numerous boxes to check and we don’t award unless there is a check in each box. I don’t doubt that any one of those checks may be regarded as a selection factor. It defies common sense to suggest that every box to be checked is to be regarded as a selection factor.

If I may quote you, “Eric's cases may appear to support his position, but I suspect that a complete reading would find that the GAO uses the terms properly.”

It appears that I am doing the reading, complete or otherwise, and you are merely debating. I would advise our readers to go read the cases and make up their own minds.

Eric

By Eric Ottinger on Tuesday, May 15, 2001 - 09:20 pm:

Ron,

As anyone who reads Comp. Gen. cases regularly must be aware, the Comp. Gen. uses a number of verbatim formulas to express well established principles. Your suggestion that the Comp. Gen.’s language is not clear on its face or somehow out of context should be evaluated with this in mind. When they say exactly the same thing over and over, they mean it.

Eric

By Anonymous on Wednesday, May 16, 2001 - 02:20 am:

Ron:

Didn't mean to slight you. You did well, too.

You can't shake Eric from one of his "personal" opinions. Think of it this way--we're really writing to protect the innocent from Eric who might believe him if we didn't speak up.

What I find funny is his citing Prof Nash, who he used to be skeptical of when Vern Edwards cited him.

By Anonymous on Wednesday, May 16, 2001 - 02:36 am:

Loki:

Here's the GAO:

"Information relating to offerors' ability to perform contract is a matter of responsibility and not related to the technical acceptability of proposals and, even though solicitation required
submission of information with proposals, requirements that relate to responsibility may be satisfied at any time prior to award."

3DAV Development, Inc.; San Sebastian Shopping Center, S.E., B-274933.2; B-274933.5; B-274933.6, January 16, 1997.

By formerfed on Wednesday, May 16, 2001 - 10:02 am:

This debate is entertaining. The fall out is lots of people probably are confused. The bottom line is, whether you agree with Eric or not, I hope no one gets into a situation where this is relevant. The best bet is read Anon X's comments above and stick with that philosophy. You won't go wrong.

By Linda Koone on Wednesday, May 16, 2001 - 10:08 am:

Eric:

You seem to be hung up on the fact that recognized authority does not define the concept of acceptability of an offer. In light of the fact that the FAR does not define 'acceptable' or 'unacceptable', don't you find it amazing how many protests are based on the acceptability of the awarded offer?

Have you read the Beckman Coulter, B-281030; B-281030.2, December 21, 1998 decision? It involved several issues, one being the inclusion of terms that were in violation of the termination clause in the solicitation.

How do you view an offer that contains terms that violate statutory requirements in your solicitation?

I consider the offer to be unacceptable, and unless I hold discussions, ineligible for further consideration or award. Yet, I can't find specific guidance in the FAR that tells me to do this.

Linda

By Vern Edwards on Wednesday, May 16, 2001 - 01:19 pm:

Linda:

Actually, a recognized authority has defined the concept of acceptability of an offer -- the GAO. In the very decision that you cited the GAO said:

"In negotiated procurements, any proposal that fails to conform to material terms and conditions of the solicitation should be considered unacceptable and may not form the basis for an award. Barents Group, L.L.C., B-276082, B-276082.2, May 9, 1997, 97-1 CPD para. 164 at 10; Martin Marietta Corp., B-233742.4, Jan. 31, 1990, 90-1 CPD para. 132 at 7."

I call this the "acceptability rule" for negotiated procurements. A proposal that conforms to the material terms and conditions of the solicitation is acceptable and one that does not is not. Note the terminology -- a proposal that fails to conform is to be considered "unacceptable," not nonresponsive.
Note, too, that the GAO has held this position for many years.

What confuses some people about this rule is the fact that some agencies unwisely use the term "acceptable" as an adjectival score to describe a degree of value -- as in excellent, very good, acceptable, marginal and unacceptable -- without regard to the legal definition established by the GAO. When the term is used in this way it may happen that a legally unacceptable proposal is scored as acceptable. You will note that in Systems Management, Inc.; Qualimetrics, Inc., B-287032.3, April 16, 2001, cited above by Anonymous, the offeror received a score of "blue," for the factor "technical compliance," signifying "exceptional," even though the GAO held it to be unacceptable on that evaluation factor because it did not comply with a solicitation requirement. It's possible that the contracting officer in that case either was unaware of the solicitation requirement or unaware of the acceptability rule. Maybe both.

The GAO has also approved of a pass/fail evaluation factor other than a responsibility-type factor. Here's the GAO describing an agency's RFP in Matrix General, Inc., B-282192, June 10, 1999:

"The RFP stated that award would be made to the offeror whose offer represents the best value to the government on the basis of (1) the merits of the offer and (2) the offeror's capability. RFP sect. M.1. The RFP stated that the agency would determine the acceptability of each offer on a pass/fail basis and that an offer is acceptable when it manifests the offeror's assent, without exception, to the terms and conditions of the RFP. RFP sect. M.2.a. Under capability of the offeror, the RFP provided that the government would assess the capability of each offeror on the basis of (1) its organizational experience, (2) its organizational past performance, (3) qualifications and experience of key personnel, and (4) its demonstrated ability to comply with instructions. RFP sect. M.3. The RFP also stated that the agency would not assess capability on a pass/fail basis, but would use its assessments of capability as a basis for comparing offerors to determine best value. Id. The RFP provided that an offeror's capability assessment was significantly more important than its price. RFP sect. M.4.1. The RFP further stated that in order to select the winning offeror, the government would rank the offers from best to worst by making a series of paired comparisons among them, trading off the marginal differences in capability and price between the members of each pair. RFP sect. M.5."

In denying the protest the GAO said:

"Contrary to Matrix's assumption, the RFP did not provide for award on the basis of the low, technically acceptable offer; rather, as explained above, the RFP specifically stated that award would be made to the offeror whose offer represents the best value to the government on the basis of (1) the merits of the offer and (2) the offeror's capability. While the RFP provided for an assessment of acceptability on a pass/fail basis, it provided for an assessment of capability as a basis for comparing offerors to determine best value."

So we see an offer acceptability factor evaluated on a pass/fail basis while responsibility-type factors were evaluated on a tradeoff analysis basis. Note, too, that the responsibility-type factors are most important, but that failure to conform to the terms of the solicitation would have rendered the offeror's proposal unacceptable and ineligible for award. This proves the validity of Anon X's assertions, also Ron's and Old Timer's.

By formerfed on Wednesday, May 16, 2001 - 01:30 pm:

Vern,

It's good to have you back