Tell me something Vern,

Why would the Comp. Gen. determine that a proposal is technically acceptable, even though the proposal has two unsatisfactories and five weaknesses.

Eric

By Anonymous on Thursday, May 17, 2001 - 02:33 am:

Eric,

If you don't me responding to your question, one reason might be that although the offeror agreed to the terms of the RFP the unsatisfactories and weaknesses related to something else. For instance the offeror's past performance was "unsatisfactory" or it had "weaknesses" in its experience. Those things don't have anything to do with the legal meaning of "acceptable," so the proposal was acceptable despite the fact that the offeror did poorly on other factors. Does that answer help? Are you talking about a specific case? If you are it would help if you would tell us what it is?

By Eric Ottinger on Thursday, May 17, 2001 - 08:13 am:

Anon,

Nice try.

I would like to see see Vern's response.

Eric

By formerfed on Thursday, May 17, 2001 - 08:48 am:

Eric,

Just like Anon, I hope you don't mind my response as well. A proposal with two unstaisfactories and five weaknesses might be the best one submiited. Vern's point, I believe, is that it can legally be accepted for award if it doesnit take material execptions. That is a different matter that it's relative technical evaluation standing.

By Eric Ottinger on Thursday, May 17, 2001 - 09:10 am:

Formerfed,

Are you saying that "acceptable" in the sense of "technically acceptable" doesn't have the same meaning as "acceptable" in the sense that Vern was using in his previous post.

I don't think "relative" is quite right. If there is an "unsatisfactory" the offer doesn't meet the standard; there is a deficiency.

If this were an IFB, would you accept an offer with two unsatisfactories indicating that in two instances the offer did not meet your standards?

I would still like to see Vern's response.

Eric

By formerfed on Thursday, May 17, 2001 - 09:31 am:

Eric,

Yes, in the sense Vern was using "acceptable". "Acceptable" in that context is synonymous with "responsive" in a sealed bid.

In response to your other question, you may want to accept such an offer if it's the best. The nice thing is we're not in an IFB situation, so there are lots of possible ways of dealing with the issue.

By Eric Ottinger on Thursday, May 17, 2001 - 09:45 am:

Formerfed,

Are you saying that the terms "acceptable" and "acceptability" are used in more than one sense?

By Anonymous on Thursday, May 17, 2001 - 11:33 am:

Eric,

That's what Vern said in his message to Linda.

By Eric Ottinger on Thursday, May 17, 2001 - 11:55 am:

Anon,

Linda: “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?”

Vern: “Actually, a recognized authority has defined the concept of acceptability of an offer -- the GAO. …"


"I call this the "acceptability rule" for negotiated procurements.”

“What confuses some people about this rule is the fact that some agencies unwisely use the term "acceptable" …”

Where did Vern suggest that “acceptable” could be used CORRECTLY (or other than “unwisely”) in more than one sense. I missed that.

Why don’t we let Vern speak for himself? He is a big boy.

Eric

By Vern Edwards on Thursday, May 17, 2001 - 03:24 pm:

Eric:

With regard to your question: Are you asking about a real GAO case or a hypothetical one? If you are asking about a real case, then the case speaks for itself. If you are asking about a hypothetical one, then ask someone else.

Everyone else:

Acceptable and acceptability are used in many ways. To the GAO, acceptability always entails conformity with the material terms of the RFP and a proposal must always so conform in order to be acceptable. This is the "legal sense" of acceptability. However, the terms can entail other things, as well, depending on how an agency writes its RFP and on its scheme for scoring proposals.

A deficiency or weakness may or may not affect the acceptability of a proposal in the legal sense. FAR 15.301 defines those terms as follows:

"'Deficiency,' as used in this subpart, is a material failure of a proposal to meet a Government requirement or a combination of significant weaknesses in a proposal that increases the risk of unsuccessful contract performance to an unacceptable level. [Underlining added.]

'Weakness,' as used in this subpart, is a flaw in the proposal that increases the risk of unsuccessful contract performance. A 'significant weakness' in the proposal is a flaw that appreciably increases the risk of unsuccessful contract performance."

Note that there are two kinds of deficiencies. The first kind, failure to meet a Government requirement, will always render a proposal unacceptable in the "legal sense." The second kind, a combination of significant weaknesses that increases risk, will not necessarily do so, but it may render the proposal unacceptable in the sense in which the agency uses the term in its RFP, and the GAO will require an agency to evaluate proposals consistently with its RFP. A weakness that is not significant may or may not render a proposal unacceptable in the legal sense, depending on the basis for the agency's finding and the terms of its RFP.

In the GAO's Matrix decision, which I cited in my last message, the GAO found that the protester's proposal was "acceptable," despite the fact that there were "significant deficiencies" in it.

The bottom line is as follows:

1. Anon X was correct in saying that an agency may employ a pass/fail factor that is not related to responsibility, as you can see in the Matrix decision.

2. The acceptability of a proposal always depends on its conformity with the material terms of the RFP, so a contracting officer should always determine whether or not a proposal conforms to those terms before accepting it for award, regardless of how the evaluation board scored the proposal. Whether you call that determination a "determination of acceptability" or something else doesn't matter.

3. Deficiencies or weaknesses in a proposal do not necessarily make the proposal unacceptable in the legal sense. Whether they do or not depends on the nature of the deficiencies or weaknesses.

By Eric Ottinger on Friday, May 18, 2001 - 06:39 pm:

Vern,

We have established that the “compliance,” “conforms with,” “acceptability” factor in a negotiated procurement is not identical to “responsiveness” in an IFB. Responsiveness in an IFB doesn’t allow the agency to relax requirements. The “acceptability” rule allows for a considerable amount of relaxation.

“A contracting agency properly may determine that a proposal is technically acceptable where it is in substantial, although not total, compliance with a solicitation requirement. Intermagnetics Gen. Corp., B-255741; B-255741.3, May 10, 1994, 94-1 CPD 302; Sabreliner Corp., B-248640; B-248640.4, Sept. 14, 1992, 92-2 CPD 222. The propriety of such a determination turns on
whether it prejudices any other offeror and whether the proposal meets the agency's needs.” (Physician Corporation of America, Apr. 10, 1996)

The case was not hypothetical Vern. Thanks for going ahead and answering the question anyway.

It is curious that in the Sabreliner case, the Comp. Gen. rejected Sabreliner's argument regarding a material noncompliance by citing the agency's needs.

“Sabreliner cites our decision in A.R.E. Mfg. Co., Inc., 66 Comp. Gen. 26 (1986), 86-2 CPD 395, in which we held that an agency acted improperly in finding a proposal technically unacceptable where any deficiency in the proposal was readily correctable.”

"Here, the record establishes that the Air Force had a reasonable basis to determine that Sabreliner's BAFO did not satisfy the agnecy's needs."

(Sabreliner Corporation, Sep. 14, 1992)

Wouldn't it have been simpler and more appropriate to simply cite you legal acceptability rule. Why go off on this agency needs tangent.

I notice that the Comp. Gen. frequently uses the terms “unacceptable” and “technically unacceptable” interchangeably in the following formula.

“It is well settled that, in a negotiated procurement, a proposal that fails to conform to one or more of the solicitation’s material requirements is technically unacceptable and cannot form the basis for award.” (Farmland National Beef, B-286607; B-286607.2, January 24, 2001.)

Has the Comp. Gen. defined the “acceptability” rule or has the Comp. Gen. defined the “technical acceptability” rule? Or is it both?

Please clarify?

Eric

By Anon6 on Saturday, May 19, 2001 - 04:35 pm:

Vern, your answer was very clear and understandable. I think that Eric is baiting you with his incessant dribble and apparent lack of understanding of fairly straightforward concepts. It doesn't merit further debate.

By Eric Ottinger on Saturday, May 19, 2001 - 11:17 pm:

Not really Anon6.

I am not trying to “bait” anyone. I am trying to take this one step at a time so that we don’t go off on tangents.

Vern has rested his argument for a “legal” “acceptability” rule on a single formula used regularly by the Comp. Gen.

In fact the Comp. Gen. does use “unacceptable” and “technically unacceptable” interchangeably in this formula.

I asked a simple and relevant question.

You are welcome to answer the question yourself if you feel strongly about this.

As Linda so nicely put it, I am “hung-up” because I can’t find confirmation for this significant doctrine in any authoritative reference. If you can find what I have missed that will be very helpful.

As I've indicated earlier, I am not going to be convinced by a display of attitude. You are welcome to frame a more substantive contribution.

Eric

By Anonymous on Sunday, May 20, 2001 - 08:30 am:

"A fanatic is one who can't change his mind and won't change the subject."
Winston Churchill

By Ron on Monday, May 21, 2001 - 02:33 pm:

I know you're supposed to be polite in these forums, but:
Eric, just shut up.

The main point of this discussion was answered long ago. That is, responsibility refers to business-related factors, and responsiveness refers to complying with contractual requirements. I stand behind that distinction, as have all other contributors to this discussion, but I will not engage in obsessive combing of GAO opinions to find words that might have blurred that distinction.

I have deleted the remainder of my original message because upon rereading it, I believe I was venting too much frustration. Let me simply say:  Give it up.  Case closed.  Move on.

By Eric Ottinger on Thursday, May 31, 2001 - 07:27 pm:

It appears that I have the opportunity to shoot down one of the urban myths of the procurement community.

Several in this forum believe there is something called a “determination of acceptability.” “Acceptability” is thought to be the RFP equivalent to IFB “responsiveness.” Further, it is thought that the “acceptability” rule is set forth in the “conforms to the material requirements” formula frequently used by the Comp. Gen.

All of this was new to me, and it seemed very strange that the references that I had at hand would be so emphatic that “responsiveness” did not apply to negotiated procurements, if the same or a very similar concept did apply, with only a few exceptions to make it fit.

I searched for the term “acceptability” and I reviewed authoritative references to find the section that addressed this important concept. The more I looked, the less I found, and the more skeptical I became.

Of course, responsiveness must apply to an RFP in some fashion, but I doubted there was any “determination.” To be exact, I didn’t see any point in the process where a formal determination would be appropriate.

More by serendipity than by diligence, the CCH search gave me the information that I needed. There was something called a “determination of acceptability.” It was used for pre-qualification, 2-steps, LPTA and some IFBs, and the usage seems to have died out somewhere around 1993.

I put “determination of acceptability” into the CCH search. Here is the sum total of the cases that turned up:

Kitco, Inc., (Dec. 05, 1988), No. B-232363., December 5, 1988 “Award to low-priced, qualified source”
Simulaser Corp., No. B-233850., March 3, 1989 “step two”
Aircraft Instruments Company, No. B-233609., March 6, 1989 “an approved source solicitation”
Flow Systems, Inc., General Decision , , No. B-233394., March 9, 1989 “two-step”
Bosma Machine and Tool Corporation--Request for Reconsideration, Comptroller General Decision , , No. B-237351.2, November 28, 1989 “low, technically acceptable, responsible offeror.”
Stay, Inc., Comptroller General Decision , , No. B-237073.2, February 26, 1990 “(IFB)”
Elbit Computers, Ltd., No. B-239038., July 11, 1990 “sole-source award”
Julie Research Laboratories, Inc., Comptroller General Decision , , No. B-240885., December 31, 1990 “as the low responsible offeror.”
Cajar Defense Support Company , Comptroller General Decision , , No. B-242562.2; B-243520., June 12, 1991 “The solicitation provided for an initial determination of acceptability, based chiefly upon the respondent’s understanding of the BAA’s scope and the degree of operational and performance benefits of the proposed technology.”
HospitalKlean, Inc., Comptroller General Decision , , No. B-245158; B-245160; B-245163, December 17, 1991 “low, technically acceptable offeror”
Stocker & Yale, Inc., Comptroller General Decision , , No. B-249466.2, January 29, 1993 “low responsible offeror and that its offer, as modified, was acceptable”.
General Microwave Corporation, Comptroller General Decision , , No. B-251673, March 25, 1993 “The agency generally restricted the procurement to previously approved sources”
Tennessee Apparel Corporation, Comptroller General Decision , , No. B-253178.3; B-253178.4, September 21, 1993 “sealed bidding”
Safety Storage, Inc., Comptroller General Decision , , No. B-275076., January 21, 1997

“Where request for quotations issued under small purchase procedures did not contain a late quotations provision, agency properly permitted a quoter to submit, after the closing date, additional evidence of its compliance with solicitation’s warranty requirement.”

Biospherics Incorporated, Comptroller General Decision , , No. B-278508.4; B-278508.5; B-278508.6, October 6, 1998

“In sum, the evaluation and source selection record furnished to our Office--numerical scores and a blanket determination of acceptability, no post-discussion narratives, and the source selection memorandum which contains no explanation of how the revised proposals affected the initial evaluation--is insufficient for our Office to determine the reasonableness of the agency’s evaluation of proposals and the reasonableness of the agency’s selection decision. See, e.g., Labat-Anderson Inc., B-246071, B-246071.2,”

Comptroller General’s Decision No. B-162538., (Aug. 15, 1968) “Two-Step”

US-DIST-CT, Comp. Gen. B-194631 , (Aug. 13, 1979) [The type of procurement is not identified.]

TESTING FAILURES

Agency’s refusal to test substitute precluded determination of acceptability
Acorn Specialty & Supply Co. (1979) ASBCA No. 22710, 79-1 BCA 13,820 .

[The type of procurement is not identified.]


“NONRESPONSIVE” EQUATES TO “TECHNICALLY UNACCEPTABLE”:

Agencies frequently find proposals to be “nonresponsive,” and the Comp. Gen. puts “nonresponsive” in quotes to indicate that the term is being used somewhat out of its correct context. It struck me that, if indeed the Comp. Gen. considers the correct term to be “acceptability,” a word search using “nonresponsive” w/100 “acceptability” would turn up instances where the agency uses the term “nonresponsive” and the Comp. Gen. indicates a preference for “acceptability.”

This worked wonderfully well. But the correct term is “technically unacceptable.”

Sierra Engineering, Comptroller General Decision , , No. B-237820, January 16, 1990

“1Since the concept of responsiveness does not apply to negotiated procurements, we assume that by rejecting Sierra’s offer as “nonresponsive,” the Air Force meant that it was technically unacceptable.”

Beneco Enterprises, Inc., Comptroller General Decision , , No. B-239543.3, June 7, 1991

“1Since the concept of responsiveness does not apply to negotiated procurements, we assume Beneco is arguing that Eastern/JBI’s proposal should have been rejected as technically unacceptable.”


LEGAL PRECEDENTS:

What is the significance of the statement that responsiveness does not apply to a negotiated procurement. As far as I can tell, it is simply that mere noncompliance should never be the reason to reject a proposal before the final source selection decision. At that point, the deficiency is “technical unacceptability” like any other deficiency.

Kentron Hawaii, Limited v. John W. Warner, Secretary of the Navy, et al.

International Brotherhood of Electrical Workers, AFL-CIO, an Unincorporated Association Local 1260, International Brotherhood of Electrical Workers, AFL-CIO v. John W. Warner, Secretary of the Navy, et al.

In the United States Court of Appeals for the District of Columbia Circuit. Nos. 71-2038 and 72-1099. Decided , June 15, 1973, 480 F2d 1166
Appeals from the United States District Court for the District of Columbia.

“Since this was not an advertised sealed bid procurement, the concept of “responsiveness” does not carry the strict overtones here which it would in that context. In negotiated procurements, the very concept of responsiveness is a subject of negotiations.”

Elcon Enterprises, Inc. v. Washington Metropolitan Area Transit Authority and Schindler Elevator Corporation et al., United States Court of Appeals for the District of Columbia Circuit, No. 91-7122, October 30, 1992 977 F2d 1472

“As we have made clear, responsiveness “does not carry the strict overtones” in competitive negotiation that it carries in sealed bidding because there “the very concept of responsiveness is a subject of negotiations.” Kentron, 480 F.2d at 1171. We find the following explanation convincing:

[N]egotiation does not involve the concept of responsiveness developed in sealed bidding even though the term is sometimes used in negotiations. The concept of responsiveness was developed in sealed bidding where a contracting officer is prohibited from considering a bid which deviates from the IFB. This prohibition is not applicable to negotiation where the contracting officer is permitted AND ENCOURAGED to conduct oral and written discussions with offerors whose proposals vary from the RFP.

R. NASH & J. CIBINIC, FORMATION OF GOVERNMENT CONTRACTS 523-24 (1986) (emphasis added) (citation omitted). “


Is there a nice, unambiguous statement explaining why responsiveness doesn’t apply to a negotiated procurement. After a long ten minutes of research in the Pentagon legal library, I found this District Court case referenced by the Comp. Gen. This CCH summary may be a help.

Self-Powered Lighting, Ltd. V. United States of America … , United States District Court for the Southern District of New York. 79 Civ. 6795. Filed June 10, 1980.

“Rigid rules of bid responsiveness do not obtain in negotiated procurements; therefore, the fact that an awardee’s initial proposal was not in full compliance with the RFP requirements did not require its rejection, if the protested deficiencies ware capable of being made acceptable through negotiations. The use of negotiations permitted the government to alert offerors to any errors in their offers and to negotiate corrections and changes. An unsuccessful proposal contained an error which when corrected, increased his unit price almost fifty percent. Likewise, the awardee’s proposal erroneously included an item of government-furnished equipment, which he later deleted. That proposal was accompanied by an engineering change proposal which the government approved. These events confirmed that there was a reasonable basis for the use of negotiations from which all parties profited.”


PERSONAL OPINION:

The responsiveness rule and the “failure to conform” rule are actually antithetical. The responsiveness rule simply states that in a procurement that doesn’t allow for negotiation, the government is not allowed to negotiate for the purpose of accepting a nonconforming offer.

The “failure to conform” rule states that the government is expected to negotiate. Either the offeror must be persuaded to withdraw the exception, or the solicitation must be amended to conform to the offeror’s exception. The rule has no preference, except to conform to the agency’s actual needs and to be fair to all of the offerors.

Of course, the nonconforming offer may not make it to the competitive range. But a deficiency resulting from a “failure to conform” carries no more weight than any other deficiency in this determination.

Every material requirement should be grounded in the agency’s needs. If it turns out that the material requirement is somehow inconsistent with the agency’s real needs or inordinately costly, the solicitation should be amended during the process of negotiations.

It is the “technical unacceptability” that ultimately justifies not selecting. It is not the “failure to conform” per se.


DEFINITIVE GO/NO-GO RESPONSIVENESS FACTORS:

Several in this thread have argued that there must be definitive, go/no-go responsiveness factors (several or a “universe”) parallel to definitive responsibility factors.

What is the message in the single, one each, “responsiveness” factor. “The offeror must submit a proposal conforming to every material requirement of the solicitation.”

What is the message if you single out one or more material requirements as stand-alone, definitive responsiveness factors. “The offeror must submit a proposal conforming to every material requirement of the contract, and, in addition, the offeror must really, really submit a proposal conforming to these really special material requirements.”

This is not incorrect or illogical. It is merely silly. You won’t see this done.

Selection factors are found in Section M (or maybe Section L). There is no “universe” of possible selection factors. Selection factors are not identified during the process of a protest, they are stated at the outset in the RFP.

Does anybody really want to argue this point.


BECKMAN COULTER:

Q: Can Beckman Coulter (B-281030.2, December 21, 1998) be used to demonstrate an “acceptability” rule?

A: Only if you don’t keep reading. “Because Spectrofuge included noncompliant terms and conditions in its proposal, the proposal was TECHNICALLY UNACCEPTABLE and could not properly form the basis of award. Accordingly, we sustain the protest.”


“ACCEPTABILITY” AS THE “LEAST IMPORTANT FACTOR”:

“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.” (May 01, 2001 - 09:19 am)

“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.” (May 16, 2001 - 01:19 pm)

As I am sure most of our careful readers must have noted, my objection was directed to the idea that there might be a multiplicity of definitive “responsiveness” evaluation factors. The boilerplate that we all use provides for a single overarching “responsiveness” factor (e.g. “assent, without exception, to the terms and conditions of the RFP”). Of course, “responsiveness” is a factor.

The Comp. Gen. appears to make a distinction between “selection” criteria and “evaluation” criteria. Evaluation factors must fit somewhere in an order of importance and evaluation factors must support trade-offs and comparisons between proposals. Selection factors include all of the additional factors that don’t fit in an order of importance and don’t lend themselves to any kind of trade-off analysis, specifically: responsibility, definitive responsibility criteria and “responsiveness.” (Some RFPs list “responsiveness” first in the order of importance. This is logical in the sense that “responsiveness” takes precedence over any evaluation factor. It is illogical insofar as all of the definitive, go/no-go criteria must also be equally the first in the order of importance, including responsibility and any definitive responsibility criteria.)

Take a look at this Air Force guidance for Section M.

https://www.afmc-mil.wpafb.af.mil/HQ-AFMC/PK/pkp/polvault/guides/mtemp.doc

The “conform to” factor is clearly a selection factor but it is not listed among the evaluation factors

“…whose proposal conforms to the solicitation’s requirements (to include all stated terms, conditions, representations, certifications, and all other information required by Section L of this solicitation) and is judged, based on the evaluation factors and subfactors to represent the best value to the Government.”

And, the “conform to” factor does not play in the best value decision.

“The Government will select the best overall offer, based upon an integrated assessment of Mission Capability, Past Performance, Proposal Risk, and Price/Cost.”

If you go back and read Matrix carefully, you will find that “acceptability” (as defined in the solicitation) was indeed a definitive pass/fail factor, but it was not used “as a basis for comparison of offerors to determine best value.”

(It is interesting that the protester in the Matrix case viewed the selection as an LPTA, which was not the case. Is it possible that the use of LPTA terminology (e.g. “acceptability”) contributed to this confusion?)

Evaluation factors and definitive selection factors don’t really mix. Several in this thread cannot or do not make the distinction. This makes for a very confusing discussion.

(By the way-- I would not include Old Timer in this group. However, he is free to speak for himself.)

(I think non-definitive pass/fail factors can be used with blue/green/yellow/red factors. But that is a topic for another, more analytical thread.)


IMPORTANCE OF THE “CONFORM TO” RULE:

Lest I be misunderstood-- I don’t want anyone to think that I am trying to diminish the importance of the “conform to” rule. If anything, this exercise has sensitized me to the importance of the rule. A good case to read is Farmland National Beef, B-286607; B-286607.2, January 24, 2001. After reading this case, I would have questions about what really took place in that undocumented, last minute telephone negotiation, and I would not really expect that the beef will be delivered on time. Strict adherence to the “conform to” rule would have eliminated these concerns.

It is a good rule. It keeps everything out in the open, assures fairness, and assures that the contract will be enforceable. It should be included under source selection in our textbooks and it should be given more attention in our basic courses.

To this end, somebody needs to find a formula to express this rule in positive, unambiguous terms.

I am not 100% certain, but I doubt the “conform to” rule has anything to do with offer and acceptance (e.g. “process of acceptance.”). First, this is a rule strictly for competitive procurements; offer and acceptance rules should apply equally to sole source and competitive contracts. Second, the solicitation is neither offer nor acceptance. And third, the rules for offer and acceptance are clearly stated in other locations. It is unlikely that our legal authorities would bother to create a redundant legal rule.

If the rule is not “offer and acceptance,” it is strictly “level playing field,” and that is the context where you invariably find the rule.


OTHER:

I am amused and appalled that anyone considers me enough of an “expert” that they must resort to personal attacks, to keep me from putting out an incorrect doctrine.

Some folks seem to think this chat room is a platform for them to broadcast their highly authoritative dogmatic opinions. I think they are missing a point, “big time.” A chat room should be a place for dialogue.

Early in this thread, I actually expected that something authoritative would turn up to support this “determination of acceptability.” I was not “hung-up” because I couldn’t find the word. I was hung-up because I couldn’t find the concept. I really expected that one of the “old timers” would provide some useful citation.

I am not fanatic. I really thought that the old timers knew something that I didn’t know, and if I did enough digging I would find some authority to make things clear. I did a lot of digging.


A PET PEEVE:

A Comp. Gen. decision is not a Good Housekeeping Seal of Approval. That fact that certain evaluation factors, selection procedures, RFP provisions, etc. are noted in a Comp. Gen. decision doesn’t indicate that the Comp. Gen. approves or disapproves. (In fact, I suspect they are often holding their nose or giggling.) The only opinions that really carry any weight are the words of the Comp. Gen. And the only issues that really matter are the issues that have been raised by the parties. (However, the Comp. Gen. will sometimes throw in a side comment in a footnote, regarding some defect or impropriety that hasn’t been addressed by the parties.)

Trying to discover good practices by reading Comp. Gen. decisions makes about as much sense as hanging around an emergency room to obtain tips on healthy living. Some of the patients that you meet may be in wonderful good health overall, but that is not the reason that they are in the emergency room.

Any purported principles based on the arguments of the lawyers are even more suspect.

And I have seen some people frame their highly “authoritative” opinions based entirely on the view of losing counsel.


IN SHORT:

It is all “technical acceptability.” The Comp. Gen. uses the terms “technical acceptability” and “acceptability” synonymously. There is no unique “acceptability” rule.

The term “determination of acceptability” does have an exact meaning for an LPTA or a 2-step. Using this term in any other context violates Old Timer’s excellent advice. “Careless use of acquisition terminology suggests ignorance of the rules and is a great source of confusion and trouble.”

You can look it up.


All of those folks, who have indicated that they have said enough, are encouraged to honor that commitment. I have spent more time trying to find something in policy or precedent to support their out of date and out of context arguments than a reasonable person ought to spend.

Somebody is going to say this message is too long and, “I don’t really know what you are talking about.” That’s OK. If you think there is an “acceptability” rule, simply explain how it can be the “acceptability” rule and the “technical acceptability” rule at the same time.

Eric

By Anonymous on Friday, June 01, 2001 - 01:04 am:

Eric-

Your message is long and it is hard to understand. Would you please state your position(s) in short declarative sentences?

By Anon6 on Friday, June 01, 2001 - 07:11 am:

Anonymous, please! Don't encourage him! If he knew what he was talking about, he wouldn't go on and on and wouldn't have to desperately research case law for definitions of fairly straightforward concepts.

By Ron on Friday, June 01, 2001 - 12:32 pm:

Whatever happened to the responsible/responsive discussion?
No, wait, I didn't mean it! I won't do it again. No, NO, STOP!! AARRRGGGHHH!!!

By Eric Ottinger on Wednesday, June 20, 2001 - 09:19 pm:

Anon,

I don’t think my prose is your real problem. If however, you don’t like my prose, you are encouraged to read the relevant cases.

All,

I don’t expect to persuade the hate mail crowd. Anyone who sincerely believes that nothing has changed since the ASPR is pretty much proof against persuasion.

It would be a bit of a public service to provide the relevant case law so that the rest of us can protect ourselves from this kind of “help.”

I was agnostic going into this, but I am now convinced that Old Timer was right about one thing. This issue will be the opportunity for much revenue enhancement for protest lawyers for many years into the future.

I checked out the recent news on my CCH disk and I find that the Court of Claims has recently made my argument much better than I could.

http://www.contracts.ogc.doc.gov/fedcl/opinions/2001opin/00-579C.pdf

Mantech Telecommunications and Information Systems Corp. v. United States v. Lockheed Martin Services, Inc., intervenor, (Mar. 30, 2001)


“First, ManTech again alleges that the Army erred in considering Lockheed Martin’s proposal at all, rather than simply eliminating Lockheed Martin from the competition. For purposes of this assertion, the court assumes, arguendo, that Lockheed Martin’s cost proposal did not conform to the Solicitation’s requirements because it listed pay adjustments relating to an employee’s []. Nonetheless, ManTech’s assertion that the Army, for this reason, was required to exclude Lockheed Martin from the competition is not well taken. To the contrary, where, in a negotiated procurement, an offeror’s proposal does not comply with the solicitation’s requirements, “an agency is not required to eliminate the awardee from the competition, but may permit it to correct its proposal.” … The objective, in this circumstance, is to place all offerors in the same competitive position. … To be sure, Lockheed Martin’s failure to comply with Solicitation would preclude it from receiving an award as “[i]t is fundamental that a materially noncompliant proposal cannot form the basis of an award. … But, contrary to ManTech’s claim, such a defect does not warrant Lockheed Martin’s total exclusion from the bidding, but instead may be remedied by steps designed to assist Lockheed Martin in bringing its cost proposal into conformity with the Army’s requirements.”


“In this regard, it is helpful to consider the Army’s conduct not just from ManTech’s perspective, but also from Lockheed Martin’s vantage. UNDER THE FAR, IF LOCKHEED MARTIN’S COST PROPOSAL DID NOT CONFORM TO THE ARMY’S INTERPRETATION OF THE SOLICITATION, THE ARMY WAS REQUIRED TO CONDUCT FURTHER DISCUSSIONS WITH LOCKHEED MARTIN TO ALLOW IT TO CORRECT ITS PROPOSAL. AGENCIES ARE GENERALLY REQUIRED TO CONDUCT DISCUSSIONS WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN THE COMPETITIVE RANGE. 48 C.F.R. §15.306(d). Such discussions “are intended to maximize the government’s ability to obtain the ‘best value’ in a contract award based on the requirements and the evaluation factors set forth in the solicitation.” Dynacs Eng’g Co., 48 Fed. Cl. at 130. …”

“Where an award has been made to an offeror whose proposal proved unacceptable, the GAO has frequently sanctioned further discussions between the agency and the offeror if the offer was reasonably susceptible of being cured. Thus, for example, in D & M Gen. Contracting, Inc., supra, several offerors failed to meet requirements in the solicitation regarding their management submissions. In response, the agency proposed corrective action under which it would reopen discussions and advise the offerors to disregard the solicitation’s requirements in submitting revised best and final offers. A contractor whose proposal had conformed with the solicitation protested, asserting that the agency, instead, was required to disqualify the offerors whose proposals were nonconforming. In rejecting this protest and upholding the proposed action, the GAO stated that “[w]here, as here, award was made to an offeror whose proposal did not comply with RFP requirements, an agency is not required to eliminate the awardee from the competition, but may permit it to correct its proposal.” 1993 WL 325094 at *2. The GAO determined that the proposed corrective action “resolves any adverse effects and prejudice the waiver of the ... restriction may have produced, since, as the result of discussions, [the contractor] was provided the opportunity to compete equally” and “[a]ll offerors were placed in the same competitive position.” Id. See also Henkels & McCoy, 93-1 CPD 174, at 4.”
…
“Based on the analysis in these cases--which the court believes sound--Lockheed Martin’s failure to comply with the Solicitation did not oblige the Army to exclude its proposal, but, instead, provided a basis for further discussions and other steps designed to cure the identified defects. GIVEN THIS, HAD THE ARMY, WITHOUT PRIOR WARNING, ELIMINATED LOCKHEED MARTIN FROM THE COMPETITION, AS MANTECH URGES, ITS ACTION WOULD HAVE BEEN VULNERABLE TO SERIOUS LEGAL CHALLENGE.”

“As the foregoing discussion clearly suggests, ManTech is flatly wrong in arguing that the only appropriate “corrective action” here is to award it the contract. This contention hinges on the notion, SOUNDLY REJECTED ABOVE, that Lockheed Martin’s proposal fatally deviated from the Solicitation and that ManTech’s proposal, therefore, was the only one that should have been considered. In effect, via this contention, MANTECH ATTEMPTS TO INJECT THE CONCEPT OF RESPONSIVENESS INTO THIS NEGOTIATED PROCUREMENT, SUGGESTING A RESULT THAT WOULD OCCUR WERE THIS A SEALED BID PROCUREMENT. THIS COURT, HOWEVER, HAS HELD THAT “THE SEALED BID CONCEPT OF ‘RESPONSIVENESS’ GENERALLY DOES NOT APPLY TO NEGOTIATED PROCUREMENTS.” See Input/Output Tech., Inc. v. United States, [43 CCF 77,488] 44 Fed. Cl. 65, 69 n.5 (1999). See also DeMat Air, Inc. v. United States, 2 Cl. Ct. 197, 202 (1983); Gardinez, Kamya & Assocs., P.C., B-258400, 95-1 CPD 191, at 2 (Comp. Gen. 1995); Loral Telecom; Marconi Italiana, B-224908, B- 224908.2, 87-1 CPD 182, at 8 (Comp. Gen. 1987) (“[T]he concept of responsiveness ... generally does not apply to the give-and-take of negotiated procurements.”). Rather, as discussed above, if, in a negotiated procurement, an offeror submits a proposal that deviates from the requirements of the RFP, the government need not exclude that offeror, but may take various steps to bring the offeror’s proposal into conformity with the government’s needs, while preserving fair competition among all offerors.”


Universal Shipping Company, Inc., (Apr. 20, 1987)
Comptroller General Decision , , No. B-223905.2, April 20, 1987


“2. Where an initial proposal is not fully in accord with the requirements of an RFP, the proposal should not be rejected if the deficiencies are reasonably susceptible to being made acceptable through negotiations.

3. Where an offeror promises to comply with the requirements of a solicitation, a contention that the offeror will be unable to comply with the requirements constitutes an allegation that the offeror is not responsible. GAO does not review affirmative determinations of responsibility absent circumstances not applicable here.”

“Award to an offeror which does not propose to meet specific RFP requirements is improper since the basis for an award must be the same, in its material terms, as that on which the competition is conducted. McCotter Motors, Inc., B-214081.2, Nov. 19, 1984, 84-2 C.P.D. 539. HOWEVER, IF AN INITIAL PROPOSAL IS NOT FULLY IN ACCORD WITH THE REQUIREMENTS OF AN RFP, THE PROPOSAL SHOULD NOT BE REJECTED AT THAT TIME IF THE DEFICIENCIES ARE REASONABLY SUSCEPTIBLE TO BEING MADE ACCEPTABLE THROUGH NEGOTIATIONS. Self-Powered Lighting, Ltd., 59 Comp. Gen. 298, supra”


Comptroller General’s Decision Nos. B-203428, B-203643, B-204354., (Oct. 09, 1981)

CCH Summary:

“Negotiated Procurement--Discussions--Negotiation with Nonresponsive Offeror--Negotiation Opportunity.The fact that an offeror might not have had access to drawings necessary for the performance of a contract neither precluded discussions nor required rejection of the proposal as nonresponsive because the concept of responsiveness applies only to bids submitted in formally advertised procurements, and it is not directly applicable to negotiated procurements. The contract was for equipment components manufactured by a particular firm. The protester was licensed by that firm to manufacture the parts in question. He did not believe the successful offeror possessed the authentic drawings needed to manufacture the requested parts. ALTHOUGH A PROPOSAL IN A NEGOTIATED PROCUREMENT MUST ULTIMATELY CONFORM TO THE SOLICITATION, THE FACT THAT THE INITIAL SUBMISSION WAS NOT IN FULL ACCORD WITH THE RFP WAS NOT REASON TO REJECT IT IF THE DEFICIENCY COULD BE MADE ACCEPTABLE.”


It looks to me like Old Timer and the rest of the crowd who believe that nothing has changed since the ASPR should consider themselves “soundly rejected.” If you take their advice, and try to “inject the concept of responsiveness” (or whatever you wish to call it) you may find yourself “vulnerable to serious legal challenge.”


If you want to see a good case where a responsiveness issue did result in a sustained protest, see --


Universal Yacht Services, Inc., B-287071; B-287071.2, April 4, 2001

Text of Official Digest: “Proposal that failed to conform to a material solicitation requirement was technically unacceptable and could not form the basis for award.”

The government specifies that the vessel must be able to make “9 knots in moderate weather @ 80% rated horsepower.” This requirement is necessary to assure “a reasonable transit time between shore facilities and submarines” and “ensure that adequate (in this case, 20 percent) emergency reserve power exists.”

The incumbent offeror submits a proposal with the “9 knots” typed and the “80%” handwritten.

After discussions, the incumbent offeror submits a revised proposal with the specified 9 knots. But the 80% power specification is conspicuously omitted.

The government and the contractor subsequently modify the contract to add the 80% power requirement. This does not satisfy the Comp. Gen. For one thing, the former captain testifies that the vessel is not capable of 9 knots at 80% power in moderate weather.

Note that the Comp. Gen. does not recommend revising the requirement to conform to the agency’s actual needs. Presumably, 9 knots at 80% power is viewed as the agency’s real need.

Notwithstanding that it is clear that the boat can’t satisfy the minimum requirement, the Comp. Gen. doesn’t recommend award to the other offeror. There are technical issues that need to be clarified in the competing proposal. It isn’t clear that either offer can satisfy all of the material requirements.

The recommendation is simply to reopen discussions and try again.


Alfa Laval Separation is an interesting bit of legal slapstick:

Alfa Laval has been the sole source for self-cleaning centrifugal purifiers. The Navy puts out an RFP to obtain competition. Westfalia Separators, Inc. submits a proposal $5 million below Alfa Laval. The Navy has numerous highly technical material requirements. Westfalia doesn’t quite meet one of these material requirements, but the Navy picks Westfalia just the same.

Alfa Laval protests. Notwithstanding the failure to satisfy a material requirement, the Court of Claims denies the protest because the court doesn’t think Alfa Laval has much chance to win the award in view of the $5 million difference in price.

http://www.law.gwu.edu/fedcl/Opinions/1998/ALPHALA.htm

The Court of Appeals reverses the decision alluding to “surrounding circumstances.”

http://www.ll.georgetown.edu/Fed-Ct/Circuit/fed/opinions/98-5087.html

The Court of Claims complies with the direction of the Court of Appeals, with some pointed words to the effect that “surrounding circumstances” were largely egregious misrepresentations made by Alfa’s counsel to the Court of Appeals. The Court of Claims isn’t very happy with the defendant either.

http://www.law.gwu.edu/fedcl/Opinions/2000/laval.pdf

“1. Defendant, by and through the Department of the navy, its officers, and employees, is enjoined permanently from making further orders under the subject solicitation and contract to any entity other than Alfa Laval Separation, Inc.”

However, note footnote 6. “One of the remedies discussed during the September 16, 1999 status conference was termination for convenience. Given defendant’s representations that the navy’s requirements have been met during the period while the case was on appeal, and given that parties chose not to brief the appropriateness of termination for convenience as a remedy, the court does not address this issue.”

I bet the Navy will define its material requirements to allow for greater flexibility in the future.


Eric