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By
Happy Dale on Tuesday, March 11,
2003 - 10:02 am:
In the past when negotiating with a series of offerors
(10 offerors or more) on complex procurements our agency said
that final revised proposals were due 30 days after discussions
were completed. The evaluators then would get in a series of
revised proposals almost as soon as negotiations were completed
and one offeror did not have more time than the others (as much
as 4 weeks in some cases) to prepare. However, this meant that
the proposals were due after a common period and not on a common
date.
We are trying to reconcile this with FAR 15.307 --Proposal
Revisions that states "The contracting officer is required to
establish a common cut-off date only for receipt of final
proposal revisions."
Have we been skating on thin ice without knowing it (this issue
never came up on protests won or lost). Or are we over analyzing
this
Happy Dale
By
Vern Edwards on Tuesday, March 11,
2003 - 12:35 pm:
Even before the FAR Part 15 Rewrite, the FAR and its
predecessors required the establishment of a common cutoff
date. See pre-rewrite FAR § 15.611(b)(3) and DAR §
3-805.3(d). "Staggered" dates are, and always have been,
inconsistent with that requirement.
This issue has come before the GAO on two or three occasions,
but to the best of my knowledge the GAO has never ruled on it. I
think that in every case the GAO has found the protest to be
untimely. See, e.g., Bardes Services, Inc., B-242581,
April 29, 1991 and Canaveral Port Services, Inc.; General
Offshore Corporation, B-211627, September 26, 1984.
I suspect that the GAO would not sustain a protest on the issue
unless (a) the agency announced its intention to stagger the
closing dates for final proposal revisions and a protest is
filed before the RFP closing date or (b) the protester can show
that it was prejudiced by the staggering of the dates. However,
since the regulation clearly calls for a "common" "date," you
would doubtless be wise to stop the practice of staggering final
proposal revision due dates.
By
Anonymous on Tuesday, March 11,
2003 - 01:47 pm:
Vern:
I vote for the staggered approach. "Date" can mean a particular
day of the month, but it can also mean duration. In the latter
case, a common date could be “2 weeks after the company’s
discussions with the government.”
In the case mentioned, with 10 or more offerors, (and my
experience of having 2 discussions a day), to have a single day
when all finals are due would give the first discussion company
almost 2 full weeks extra to prepare their final proposal. To
me, this is not giving all offerors an equal shot at a contract.
By
formerfed on Tuesday, March 11,
2003 - 02:05 pm:
You run an awfully big risk by staggering due dates.
An unsuccessful offeror whose proposal revision was received
before the awardee may claim information was leaked. One
overiding factor GAO considers is maintaining the integrity of
the process.
By
Vern Edwards on Tuesday, March 11,
2003 - 02:24 pm:
Anonymous:
I can understand why you might want staggered dates, but I do
not agree with you that "date" can mean "duration." The reg says
"common" (the same for all) "date and time."
Did you read the decisions that I cited? The GAO has said that
the reason for the requirement for a common date and time is to
prevent disclosure of any proposal revision before all revisions
have been received. Your interpretation of the regulation does
not serve that end. So argue if you want that it's fair to give
everyone the same amount of time, but don't argue that the reg
says something other than it clearly does.
By
Linda Koone on Tuesday, March 11,
2003 - 02:39 pm:
There was another GAO protest, International Resources
Group, B-286663, January 31, 2001, in which GAO made note of the
fact that offerors were not provided a common cut-off date for
submission of final proposal revisions, apparently for the
reason that Happy Dale mentions. Since discussions were later
reopened, GAO determined that the offerors were not prejudiced
by the FAR violation in this case.
Do you think GAO would have ruled differently if negotiations
weren't re-opened? Or would proof of prejudice also be required?
By
Anon on Tuesday, March 11, 2003 -
02:44 pm:
Linda, yep I do believe so, normally when negotiations
are reopened after a visit to the CompGen it means the gummint
did something in error and reopening negotiations is the way to
atone for such an error.
By
dave on Tuesday, March 11, 2003 -
02:53 pm:
Footnote 2 to that decision pretty well sums up GAOs
view on staggered due dates. To wit:
"The offerors were not given a common deadline for submission of
revised
proposals, apparently because they were not furnished with their
discussion
questions on the same date. IRG's final revised proposal was due
on July 12;
HBS's on July 13; and Offeror A's on July 26. The assignment of
differing
deadlines for the submission of final proposal revisions is
contrary to
Federal Acquisition Regulation (FAR) sect.15.307(b), which
requires the
contracting officer to establish a common cut-off date for
receipt of final
proposal revisions. Because discussions were reopened and
another round of
final revised proposals requested, there is no evidence that IRG
was
prejudiced by this violation, however."
By
Anon2U on Tuesday, March 11, 2003 -
08:21 pm:
I have given the contractors staggered dates before
because I thought it was the only fair thing to do and that they
might protest if I gave one more time than another. I guess I
was wrong for using common sense and will comply with the FAR
and the GAO from now on. I still think it is unfair to give one
more time than another to make thier revisions.
By
Vern Edwards on Tuesday, March 11,
2003 - 09:56 pm:
The common cutoff date is a very old rule. It
has caused no major problems. As long as you give everyone
enough time to develop a final proposal revision you have
treated everyone fairly.
By
Anonymous on Tuesday, March 11,
2003 - 10:43 pm:
Vern:
Again we will disagree. Check the dictionary and it does give
"duration" as a meaning for date. Let me further pick apart the
language of 15.307(b):
"At the conclusion of discussions, each offeror still in the
competitive range shall be given an opportunity to submit a
final proposal revision. The contracting officer is required to
establish a common cut-off date only for receipt of final
proposal revisions."
The use of "each offeror" implies individual rather than a
collective group. If it were to be a collective group, then "all
offerors" would have been better language. Also, the argument of
date and time is not valid. The language is "date", period. If
it were to be a "date and time," then that should have been
stated. And the absence of "time" implies that there is not one
common time that can be applied. (Such would be the case if one
company's discussions ended at noon, and another's at 5PM.)
Where everyone is getting hung up is the "common cut-off date;"
interpreting it to mean a particular day, such as the Ides of
March. I can cite many instances (including government usage)
where a "common cut-off date" is meant as a particular passage
of time, such as "2 weeks from....”
If I were in the private sector, and were given only 2 weeks to
submit a final after my discussions, whereas another contractor
had 4 weeks after his (due to his discussions occurring at the
start of the discussion period and mine was at the end) I would
cry fowl! From Sealed Bidding instructions we get, at 14.202-1
Bidding time:
(a) Policy. A reasonable time for prospective bidders to prepare
and submit bids shall be allowed in all invitations, consistent
with the needs of the Government.
I would think that this concept would also carry over to
contracting by negotiation. “Reasonable” can be argued as being
long enough, but could also be argued as being too long. Why
would 2 weeks be reasonable for one contractor, whereas 4 weeks
would be reasonable for another?
In conclusion, you can strive for the integrity of the
procurement (i.e., not having information leaked); but cheating
a contractor out of his preparation time is not correctable by
having only 1 submittal date and time.
Anonymous of 1:47
By
Linda Koone on Wednesday, March 12,
2003 - 07:11 am:
Anonymous:
I'm not convinced by your argument. It's completely contrary to
what GAO has already stated in the International Resources
decision, the exact footnote was provided above by Dave.
What do you do in a situation when one or more offerors request
an extension for submitting final proposal revision, and this
request comes after some offerors have already submitted final
proposal revisions?
By
joel hoffman on Wednesday, March
12, 2003 - 07:27 am:
Anon 1:47, I disagree with you.
There is another reason for using a common (cutoff) date for
receipt of final proposal revisions. At least in construction,
commodity, material and subcontractor pricing are all highly
volatile. Offerors must have a common date to conclude price
preparation to keep them on an equal footing for price
competition.
As long as they all have an adequate amount of time to revise
their technical approach and price proposals, we have never had
a problem with favoritism. I've been involved in or have run
about 80 source selections. I have never had a problem with
compaints of inadequate time allotted to any one offeror. I
always obtained buy-in from the competitors when establishing
the cut-off date. So, nobody was "cheated" out of adequate
proposal revision time.
It was also unusual if the start or conclusion of discussions
between offerors lasted more than a week, let alone 2 weeks. At
any rate, we'd try to randomly select the order of discussions
(e.g., drawing numbers), to eliminate bias. They knew the
practicalities involved in timing multiple discussions and we
went a long way to try to establish trust that we were being as
fair as possible.
In situations where individual discussions last more than a day,
the project is complex or large. Then, we keep the initial
discussions within the span of about a week to seven working
days. That's done by establishing a manageable competitive range
- or there are only a handful of proposers to begin with.
Even on our 1.4 billion dollar systems contracts for chemical
weapons disposal plants (a combination of R&D, service,
construction and design), initial discussions only lasted two
days each. Initial discussions were conducted within a week to 6
days (we also randomly picked the order).
Discussions often continue after the first meeting, but they all
have the major information they need to tackle technical or
technical approach revisions from the initial discussions. If
the project is of extreme technical complexity, we'll hold a
second follow-up round of discussions. This has always been done
inside of a week, in my experience.
I'd be surprised if there were many (or any) well run source
selections where the period of conclusion of discussions
stretched out a couple of weeks and anyone was "cheated" out of
adequate proposal revision time.
Construction and design-build contractors generally finalize
their pricing at the end of the common cut-off period.
Most of my dozen or so service contract source selections have
not been as complex as ones for construction contracts, with the
exception of the systems contracts, mentioned above. Discussions
are often quicker and are conducted over a short period. I'm
sure that there are exceptions, but I haven't encountered any,
yet.
It may not be perfect, but it has always worked for me. happy
sails! joel hoffman
By
Vern Edwards on Wednesday, March
12, 2003 - 07:28 am:
Anonymous:
Linda was kind to say that she was not convinced by your
argument. Your "argument" is loopy. Yes, when you look at
Webster's Third the third definition of "date" denotes duration,
but when you look at that dictionary's usage example it is clear
that FAR 15.307 does not mean "common cutoff duration." Roll
that phrase around in your brainpan, "common cutoff duration,"
and ask yourself if it makes sense. No, wait, don't do that,
because you'll only come back here and say that it does.
The GAO decision cited by Linda and quoted by Dave shows that
the Comptroller General's does not appear to share your
interpretation. Your disagreement is with him.
By
Vern Edwards on Wednesday, March
12, 2003 - 08:00 am:
Anonymous:
A thought: The next time that you issue an RFP, include a
statement in Section L which says that if you conduct
discussions you will stagger the due dates of final proposal
revisions, based on your interpretation of "common cutoff date"
as meaning "common cutoff duration". Notify me by email when you
have issued the solicitation and I will file a GAO protest
before the RFP closing date (oops, I meant closing duration)
to challenge your plan. Then we can see what happens. Who knows,
maybe the Comp Gen will change his mind and deny my protest.
I'm serious, by the way. My email address is vernedwards@msn.com.
By
Anonymous8 on Wednesday, March 12,
2003 - 12:26 pm:
During discussions, I will typically ask the offerors
how much time they need to prepare their proposal revisions - as
much as possible, use that time in setting the date.
By
Anon on Wednesday, March 12, 2003 -
01:43 pm:
Anonymous of 10:43 p.m. note that:
"At the conclusion of discussions, each offeror still in the
competitive range shall be given an opportunity to submit a
final proposal revision. The contracting officer is required to
establish a common cut-off date only for receipt of final
proposal revisions."
Note the "s" in the last word of the above quoted excerpt.
The regs state a common cut off date for revisions (Plural).
Each offer in the CR is afforded an opportunity, the cut off
date applies to the receipt of all revisions.
By
Anonymous on Wednesday, March 12,
2003 - 09:36 pm:
Sorry Anon, but the plural does not necessarily mean
all offerors. A single offeror will have "discussions", not "a
discussion." And the only way to have (singular) revision is if
the offeror changes only one thing in the proposal. Otherwise,
it is revisions (plural). But that's English for you.
Linda: what would you do in the situation you describe? In
trying to be fair to all offerors, I would say that the deadline
sticks.
Joel: Thanks for your input on prices. This would make sense for
a singular date and time.
Vern: you are not an "interested party". In sticking to the
issue, I do not (as yet) capitulate, but will wait until some
lawyer brings up a case in the Court of Federal Claims, in which
his client was not afforded the same amount of time to prepare
final revisions.
By
Vern Edwards on Wednesday, March
12, 2003 - 10:24 pm:
Anonymous:
Don't worry about the interested party bit, I can take care of
that. Capitulate, my friend. For you the war is over.
What about it -- do you think "common cutoff duration" makes
sense? You haven't said anything about that, my
dictionary-reading friend. (You have to read the phrase as all
one piece, you know.) I expect to hear back from you on this
point. Don't clam up now.
By the way, don't misunderstand me -- I think that staggering
the cutoff dates is fair. The only problem that I have with it
is that it violates the FAR.
By
Anonymous on Wednesday, March 12,
2003 - 11:55 pm:
Vern:
It is not the phrase; it is the meaning of the phrase. Yes, I do
think that a "common cutoff date" could be interpreted as
duration, such as "2 weeks (after a company finishes
discussions)."
The phrase "common cutoff date" has been interpreted to mean a
particular date and time for so long that you have tunnel
vision. Try looking at it from my moccasins, without reverting
to your interpretation. Is "duration" a reasonable
interpretation?
And as a last issue (or so I hope), you have mentioned that
staggering would be fair. The opposite of that is "not
staggering would be unfair." So one company could be prejudiced
if there is but one date and time for submittal of proposals
after all discussions have ended. And guess what the word
"prejudiced" can do for a protest?
By
Vern Edwards on Thursday, March 13,
2003 - 07:58 am:
I fear that it is you who has tunnel vision, my
friend. You are so convinced that staggering is the only fair
approach, notwithstanding the GAO's interpretation and four
decades of practice, that you cannot see that your
interpretation of FAR 15.307 is plainly wrong. "Date" does not
mean "duration." Date means date. It has been interpreted that
way for so long because that is what it means. What worries me
is that I suspect that you are a contracting officer or perhaps
even the chief of a contracting office and you have told so many
others that "date" means "duration" that you cannot now bring
yourself to admit that you have been wrong.
I'm curious about something: Since you have apparently been
using the staggered dates approach, tell me -- when you invite
offerors to submit final proposal revisions do you tell them
that they must do so within a specified number of days, or do
you tell each of them to submit by a specific date? And if you
give each of them different dates, how does that comply with the
requirement to establish a "common" date?
By the way, there is a problem with your reasoning. It does not
follow that if staggering is fair, then not staggering is
unfair. Non sequitur. Both may be fair, depending on how
they are done, and both may be unfair.
The argument that staggering is, at least on its face, fairer
than applying the same date to all is an old one. I discussed it
in the classes that I taught at GWU more than ten years ago. As
has been explained by the GAO, the rationale behind the
requirement for a common cutoff date was to prevent the
improper disclosure of BAFOs. Blinded by your commitment to your
idea, you are ignoring tha rationale.
I'll quit. There's no point in continuing with you. My test
protest offer remains open.
Vern
By
Anonymous on Thursday, March 13,
2003 - 12:54 pm:
Vern:
Unfortunately you have left the playing field without addressing
the (above) question.
I understand your point of GAO rulings; more importantly, Joel's
concern for cost fluctuations; and of course the problems of
leaks. You seem to have grasped the notion that staggering date
and time is fair (your 10:24 posting), and others in this train
have noted that they think it is unfair to give some contractors
less time to prepare their final proposal than other
contractors. So the real question is, how do we improve the
system?
By
P Cook on Thursday, March 13, 2003
- 03:27 pm:
Why not just ask the last contractor that you hold
discussions with how much time they will need and establish the
date from that for all of them? We are talking revisions here
and not brand new fresh proposals. Then, even though the
offerors who went earlier on may have had more time, as least
you will have given the last one the time they need and not
violate the FAR.
From reading this, it seems the lesson to be learned is get
through your discussions as fast as possible in the shortest
possible time, and give everyone a fair shot to revise their
final proposals.
By
joel hoffman on Thursday, March 13,
2003 - 06:41 pm:
Of course, for construction contracts, I DON'T agree
that staggered final submittal dates are "fair". The competitors
would not be on equal footing, due to the highly volatile nature
of construction pricing. Final pricing is generally done at the
end of the common cut-off period.
P Cook, I'd say you grasped the primary concepts. TALK to the
offerors, especially the last one. Get through discussions as
FAST as reasonably possible - while being thorough. happy sails!
joel
By
formerfed on Friday, March 14, 2003
- 07:23 am:
Many people don't establish a competitive range
consistent with the FAR. 15.306(c)(1) says the competitive range
is comprised of all of the most highly rated proposals.
Furthermore subpart (c)(2) allows CO's to limit the number for
purposes of efficiency. If an agency is continually negotiating
with a large number of firms, things they need to look at are:
(1) do the evaluation criteria allow offerors to be
distinguished among each other on their merits; (2) is the CO
including just the most highly rated (remember the criteria for
inclusion is different than it used to me); and (3) does the CO
take advantage of the ability to limit the number in advance to
promote efficiency.
I can see the kind of situation under discussion here happening
occasionally, but something might be wrong if this happens
often.
By
Vern Edwards on Friday, March 14,
2003 - 10:10 am:
Anonymous:
In response to your question, the way to change the system (note
that I didn't say "improve") is for someone to ask the FAR
Council to change FAR § 15.307. However, you are asserting that
there is a problem with regulatory language that is 40 years
old. What is your evidence that establishing a common cutoff
date (date, not duration) has caused significant problems or
that industry widely perceives it to be unfair? Maybe the only
problem is that you don't understand the reason behind the
language.
The following quote is from Competitive Negotiation: The
Source Selection Process, 2d ed. by Nash, Cibinic and
O'Brien (Washington, DC: The George Washington University Law
School, 1999), p. 694:
"The FAR 15.307(b) requirement for a common cutoff date for the
receipt of final revisions has been justified as necessary to
preserve the integrity of the competition in order to minimize
the possibility of information in one proposal 'leaking' to
another offeror with a later closing date. See Federal Data
Corp., Comp. Gen. Dec. B-236265.4, 90-1 CPD ¶ 504; and
Kleen-Rite Corp., Comp. Gen. Dec. B-209474, 83-1 CPD ¶ 512,
stressing the need for such a common cutoff date as an essential
part of the competitive negotiation process. The purpose of
establishing a common cutoff date is to prevent offerors from
being treated unfairly or being prejudiced. However, prejudice
does not necessarily occur because there is no common cutoff
date. See Gas Turbine Corp., Comp. Gen. Dec. B-251265,
93-1 CPD ¶ 400... ."
Guess what the word "integrity" can do for a protest.
Apparently, someone decided long ago that it is better to
prevent leaks by requiring all offerors to submit their
revisions by the same date and time than it is to give every
offeror the same amount of time by staggering revision due
dates. Perhaps someone concluded that giving everyone enough
time and preventing leaks is fairer than giving everyone
the same amount of time at the risk of leaks. Have you
considered the possibility that this policy is more balanced
than the one which you espouse (and apparently practice in
violation of the FAR)?
Maybe changing the FAR to permit staggered due dates would not
improve the system.
By
Chuck Solloway on Friday, March 14,
2003 - 01:05 pm:
It is my understanding that the government invented
the Best and Final Offer procedure to take care of contractor
complaints regarding the the establishment of cut-off dates.
Prior to the BAFO procedure, the government would be having
successive rounds of discussions (negotiations) that continued
until the contractors involved were notified that an award had
been made. This process made contractors angry as they may have
been up all night crunching numbers only to learn that
discussions were over.
The government invented the BAFO procedure to meet contractors
concerns and to establish a common cut-off date for receipt of
proposal revisons.
The BAFO procedure was abused and some government agencies
obtained multiple BAFOs in sort of an auctioning technique.
Contractors began to distinguish between the BAFO and the BARFO
(best and really final offer). Various persons in the government
(congressional staffers, reformers, etc.) promised to do away
with the BAFO. But they discovered that it had a compelling
reason for existence - a common cut-off date for the competing
contractors. So the BAFO procedure was renamed and is now a
Request for Final Proposal Revisons.
The methods of discussion and the extent and specificity of
discussions are matters to be determined by the contracting
officer. Thus, if you go on the basis of establishing a cut-off
date for each competitor, it is possible that you will be
recieving final proposal revisions over a period of many months,
with time favoring those contractors who needed more detailed
discussion. The opportunity for favoring and other chicanery
would increase substantially.
In summary, it ain't broke anymore so why should we fix it?
By
joel hoffman on Friday, March 14,
2003 - 01:48 pm:
Well said, Chuck. Thanks for the historical
perspective, too. happy sails! joel
By
formerfed on Friday, March 14, 2003
- 02:02 pm:
I thought about this further. Even if staggered cutoff
dates were permissible, I don't think I would want to use it.
Imagine how difficult it is to explain that nothing got divulged
when the last offer to submit barely beat out the price of a
competitor who submitted their revision previously? Or the last
offer to submit happened to think up a fantastic and innovative
solution that coincidently happened to be what their competitor
proposed. It's not worth it.
Imagine further if you were the company in line for the award
except the government selected a competitor whose proposal
suddenly got much better at the last moment and whose revison
came in days after yours. What would you think and do?
By
joel hoffman on Friday, March 14,
2003 - 02:03 pm:
Formerfed, thanks, too for the reminder concerning the
breadth of the competitive range. I don't have the problem of
conducting discussions with huge numbers of firms, because I am
able to whittle down the numbers to a manageable few. Since I'm
not involved in as many service contract source selections, I
didn't want to comment on the apparent problem - too many firms,
stretching out discussions over several weeks.
You made a very good point, however. If there are that many
firms in the competitive range, something is wrong with the
evaluation process.
Evaluation criteria should discriminate between qualifications
and/or technical solutions. If they "don't", they are
ineffective and should be revised.
If they "can't", it could mean that there is little or no
variation in industry capability to meet one's requirements and
one should either use an IFB . Or it could mean that one should
greatly simplify the evaluation criteria and basis of award
(perhaps reduce the number of factors, make some or all
go/no-go, etc.). happy sails! joel
By
Anonymous on Thursday on Friday,
March 14, 2003 - 05:17 pm:
Chuck: An illustration of what I was getting at in my
post over in the endless CO's Warrant - Part 3 (Anonymous on
Thursday, March 13, 2003 - 11:55 am) with reference to
understanding history.
In times of reinvention, disdain for "old ways" or
whatever, examining the "origin and development of contracting
principles that govern public purchasing today" has value in
avoiding that baby and bathwater syndrome. As we saw in recent
accounting scandals, there just might be a reason for some
silly old rules and regulations.
By
Vern Edwards on Friday, March 14,
2003 - 07:06 pm:
I'd like to elaborate on Chuck's history. The
Comptroller General was the source of the terms “best and final
offer” and “common cutoff date.”
In 1968, Armed Services Procurement Regulation (ASPR) § 3.805,
Selection of offerors for negotiation and award, paragraph
3.805-1(b) read in part as follows:
“Whenever negotiations are conducted with several offerors,
while such negotiations may be conducted successively, all
offerors selected to participate in such negotiations (see
paragraph (a) of this section) shall be offered an equitable
opportunity to submit such price, technical, or other revisions
in their proposals as may result from the negotiations. All such
offerors shall be informed of the specified date (and time if
desired) of the closing of negotiations and that any revisions
to their proposals must be submitted by that date. All such
offerors shall be informed that any revision received after such
date shall be treated as a late proposal in accordance with the
“Late Proposals” provisions of the request for proposals. (In
the exceptional circumstance where the Secretary concerned
authorizes consideration of such late proposal, resolicitation
shall be limited to the selected offerors with whom negotiations
have been conducted.) In addition, all such offerors shall also
be informed that after the specified date for the closing of
negotiation no information other than notice of unacceptability
of proposal, if applicable (see § 3.508), will be furnished to
any offeror until award has been made.”
(The paragraph (a) mentioned in the quote had said that the
contracting officer was to negotiate with all responsible
offerors who submitted proposals within a competitive range.)
Note the absence of the terms best and final offer and
common cutoff date. Those terms did not appear in the ASPR
in 1968, and would not until 1975.
On December 27, 1968, the Comptroller General denied a protest
by National Radio Company against an award by the Naval
Electronic Systems Command of a contract for radios. See 48
Comp. Gen. 449; B-164581; 1968 CPD 99. The protester claimed
that the Navy had conducted unequal discussions. Although he
denied the protest, the Comptroller General wrote to the
Secretary of the Navy and said:
“The record before us indicates that the discussions with
National Radio Company may well have been insufficient to put
National on notice that it was being asked for a ‘best and
final’ offer. National appears to have been asked merely to
‘reconfirm’ its previous price. We believe it should have been
advised that discussions were being conducted with all offerors
within a competitive range and that any revisions to its
proposal must be received by the date specified. We would
appreciate expression of your views on this point.”
This was, as far as I have been able to determine, the
Comptroller General’s first use of the term best and final
offer in a protest decision.
Less than two months later, on February 13, 1969, the
Comptroller General sustained a protest of a procurement
conducted by the Naval Ship Systems Command on the grounds that
discussions “have not been properly closed.” Quoting the same
ASPR § 3.805-1(b) that I quoted above, the Comptroller General
told the Secretary of the Navy:
“Negotiations may be conducted at different times with different
offerors. When this is done, the rules also require, in fairness
to all, that a common cutoff date be set for all. This had not
been done at the time the November modification was received,
and, as noted, that offeror had not been told it could no longer
modify its proposal… We believe that until a common cutoff date
for further modification of proposals is established for all
offerors it cannot be said that negotiations have closed or that
modifications made either voluntarily of as a result of
government request should not be considered... In this regard we
have previously stated our opinion that offerors should be
advised: (1) that negotiations are being conducted; (2) that
offerors are being asked for their ‘best and final’ offer, not
merely to confirm or reconfirm prior offers, and finally (3)
that any revision must be submitted by the date specified. See
our letter to you, B-164581, December 27, 1968. In this
situation, offerors were advised only of a cutoff date for
modifications, not that negotiations were being conducted and
that the offerors should submit their ‘best and final’ offers.”
See 48 Comp. Gen. 536; B-163882; 1969 CPD ¶ 9. (Note the
Comptroller's reference to the letter in which he had requested
an expression of the Secretary's views on the matter.)
In 1975, after a few more such protests, DOD extensively revised
the ASPR coverage of discussions in source selection, and
replaced § 3.805-1(b) with the following § 3.805-3(d):
“At the conclusion of discussions, a final, common cut-off date
which allows a reasonable opportunity for submission of written
‘best and final’ offers shall be established and all remaining
participants so notified. If oral notification is given, it
shall be confirmed in writing. The notification shall include
information to the effect that (i) discussions have been
concluded, (ii) offerors are being given an opportunity to
submit a ‘best and final’ offer and (iii) if any such
modification is submitted it must be received by the date and
time specified, and is subject to the Late Proposals and
Modifications of Proposals provision of the solicitation.”
It is clear to me that the ASPR Committee changed the language
in the regulation in response to the Comptroller General’s
demand for a clear call for "best and final offers" and for the
establishment of a "common cutoff date" for submissions. The
Comptroller General considered these procedures essential to
fair bargaining. The new language reflected the Comptroller's
belief, as expressed to the Secretary of the Navy in February
1969, that fairness required that offerors be notified that
negotiations were coming to an end and that this would be their
last chance to revise their offers. The requirement for a
“common” cutoff date reflected the Comptroller's desire to
ensure the integrity of the process, as I have previously
explained.
The language placed in ASPR § 3.805-3(d) in 1975 was the model
for FAR § 15.611 in 1984, which in turn was the model for the
current FAR § 15.307(b).
By
Vern Edwards on Friday, March 14,
2003 - 07:20 pm:
A correction to a typo in my last post. The language
in ASPR § 3.805-3(d) that reflected the Comptroller General's
concerns was inserted in 1973, not 1975.
P.S.
Some of you old-timers will remember that the numbering scheme
in the desk versions of the ASPR were as follows: 3-805.3, with
the dash first, then the period. However, the CFR version placed
the period first, then the dash.
By
Vern Edwards on Friday, March 14,
2003 - 07:30 pm:
P.P.S.
The addition of "best and final offer" and "common cutoff date"
was made by Defense Procurement Circular 110, dated May 30,
1973. The Comptroller had expressly recommended the change in a
letter to the Secretary of the Army dated December 21, 1972,
B-176683.
Sorry for the scattered way in which I'm presenting this info to
you all, but I'm writing off the cuff and on the fly between
telephone calls. Arrggh! Sloppy!
By
joel hoffman on Saturday, March 15,
2003 - 09:00 am:
Thanks for the additional historical perspective,
Vern. If the term "best and final offer" or "BAFO" hadn't become
tarnished by "BARFO's", "BARRFO's", etc., it might still be
used. I like the term better than "final proposal revisions". We
DOD types like acronyms, you know! happy sails! joel
By
Mike Wolff on Thursday, March 27,
2003 - 01:21 pm:
Here's a suggestion:
In order to try and give contractors as close to the same amount
of time to prepare responses to negotiations as possible, why
don't you intially open negotiations through letters which
explain the issues you want to negotiate. This way the
contractors will not only be better prepared for the oral
negotiations, but they would have a lesser claim that some
contractors had an unfair advantage because negotiations were
conducted with them first.
Mike Wolff
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