By Vern Edwards on Thursday, September 12, 2002 - 07:00 pm:

You can issue an amendment and solicit revised proposals based solely on the amendment, then award without discussions.

Alternatively, you can establish a competitive range, then issue an amendment during discussions and solicit revised proposals that reflect the discussions, including the amendment.

If you award and then modify the contract there is a possibility, though perhaps remote, that one of the other offerors might. If one of them did, then you could have trouble if the GAO decides that you entered into the contract with the intent of modifying it after award. The GAO does not like to see that and has sustained protests when it has caught agencies doing that under some circumstances. See: Hoechst Marion Roussel, Inc., Comp. Gen. Dec. B-279073, May 4, 1998, and Falcon Carriers, Inc., 68 Comp. Gen. 206, B-232562, January 30, 1989.

In Falcon, the GAO said:

"If the integrity of the competitive bidding system is to be maintained, agencies may not award contracts with the intention of significantly modifying them after award; rather, an award must be based on the requirements stated in the solicitation. Ingersoll-Rand, B-225996, May 5, 1987, 87-1 CPD ¶ 474; American Television Systems, B-220087.3, June 19, 1986, 86-1 CPD ¶ 562. If we find that the competition for the contract as modified would be materially different from the competition originally obtained, then we generally will conclude that the award was improper and recommend resolicitation under revised specifications. Ingersoll-Rand, B- 225996, supra."

Whether the GAO would consider your modification to be significant is anybody's guess.

By Vern Edwards on Thursday, September 12, 2002 - 07:02 pm:

The first sentence in the third paragraph of my last post should have read:

If you award and then modify the contract there is a possibility, though perhaps remote, that one of the other offerors might protest.

By formerfed on Friday, September 13, 2002 - 07:59 am:

Naddi,

If I were in your position, I would folow Vern's first option - issue an amendment, get revised proposals, and award without discussions.

You know who the respondents are. You can do an amendment including email or verbal notification and ask for revisions within a very short time frame. You add just a few days to the award schedule and save yourself the possibility of a sustained protest which really sets you back.

Good luck.

By Eric Ottinger on Friday, September 13, 2002 - 11:46 am:

Naddi,

I would follow the direction in the FAR to the letter.

Vern is correct insofar as the Comp. Gen. would like to see an amendment to the RFP if the change in the requirement if is significant. But it is clear that you do not regard this as a significant change. All other things being equal, it doesn’t appear that there is any way that this would change the selection.

Before the Part 15 Rewrite, the FAR cautioned against reopening discussions to correct small mistakes in the RFP. This was consistent with a policy of discouraging multiple rounds of discussion. The Part 15 Rewrite is not so concerned with multiple rounds of discussion.

FAR 15.206 Amending the solicitation.

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

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

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

The FAR does not allow you to send an amendment to offerors who have already been eliminated from the competition.

Let’s say the Offeror B reduces his price to the point where his offer is now the best proposal. If you select Offeror A (your original selection), Offeror B should protest. If you select Offeror B, Offeror A is going to very unhappy. Either way, things can turn really ugly.

You intentions are pure as the driven snow, but shouldn’t expect offerors to know this. Offerors are always looking for hidden agendas, even where there are none.

Note: I am assuming that the other offerors are “eliminated from the competition” at the point where the SSA made a decision. If I made a different assumption, I would probably reach a different conclusion.

Eric

By Anon on Friday, September 13, 2002 - 01:07 pm:

I have to laugh at the multiple rounds of discussions. For the youngsters out there, we (generically speaking) would request BAFOs (best and final offers) and then there would be a request for BARFOs (beat and really final offers).

By Vern Edwards on Friday, September 13, 2002 - 01:15 pm:

It is not true that FAR does not allow a CO to send an amendment to an offeror that has already been eliminated from the competition. FAR states to whom an amendment must be sent; it does prohibit sending an amendment to anyone.

A CO would not lose a protest because he or she sent an amendment to a firm that had already been eliminated and allowed that firm to submit a revised proposal. The GAO will not object to CO actions that are intended to enhance competition.

By Vern Edwards on Friday, September 13, 2002 - 01:17 pm:

I should say that the GAO will not object to an action that is designed to enhance competition as long as the action is not an express violation of law or regulation.

By Eric Ottinger on Friday, September 13, 2002 - 04:39 pm:

Naddi,

Look at --

NV Services, (Feb. 25, 2000)Comptroller General Decision , No. B-284119.2, February 25, 2000

“…the allegation that an agency awarded a contract with the intent to modify the scope of work concerns pre-contract award actions in violation of FAR §15.206(a), which requires that the solicitation be amended, even after receipt of proposals, to reflect the agency’s actual requirements. The appropriate standard in reviewing these pre-contract actions is not whether the subsequent modification is within the scope of the original contract but whether the changed work could significantly affect the competitive positions of offerors such that the RFP should have been amended. United Tel. Co. of Northwest, supra, at 10. Here, it should have been apparent to NASA that increasing the scope of the contract work by approximately 6 percent could affect the offerors’ respective proposals.”

“Nevertheless, we do not find that NASA’s failure to modify the RFP prejudiced NVS. As the protester was instructed at the hearing, see Tr. at 16-17, our Office will not sustain a protest unless there is a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher, 102 F. 3d 1577, 1581 (Fed. Cir. 1996). To establish prejudice, NVS argues that if NASA had revised the RFP to reflect this additional work, this would have resulted in revised proposals that would have affected both the technical and cost evaluations. Protester’s Post-Hearing Comments at 5.”

If I read your scenario correctly, you are talking about a stretch out from 8 months to 10 months without really changing the amount of work to be done. I would not be surprised if the successful (so far) offeror would be willing to give you this with no change in contract price.

Eric

By Naddi on Monday, September 16, 2002 - 09:44 am:

Hi again

Yes it would be a increase of a few months, but only for a very small part of the effort. We tried to be clever and set up as many FFP tasks in advance as we could. The cost for this task may increase by more than 20%. However, it will be a small part of the contract (less than 2%, it might be 10% of the FFP CLINs). The FFP tasks be
The notion of just awarding now and cleaning up later was more an expression of frustration at the way the tail wags the dog sometime. My desire would have been to send the amendment only to the selected offeror, but that is a transparently bad idea. We never established a competitive range, but we did have at least one non-responsive offeror. It was just that starting discussions because of this task seemed wrong.

It was not clear to me that we could limit proposal revisions to the amendment. I don't know why I thought we couldn't as we routinely issue EN's and limit the response to the topic of the EN all of the time.

I don't feel that I'm doing the other offerors any favor by getting them to redo an estimate. Fortunately it really should be a tiny amount of work, unless they read too much into the amendment.

Naddi

By Eric Ottinger on Monday, September 16, 2002 - 10:11 am:

Naddi,

If I read you correctly, you are saying that the impact on the total cost will be 0.4% (20% x 2%). If the highest estimate for the additional work is 20% higher than the lowest estimate, the impact will be less than 0.08% (i.e 0.0008).

I think you are jumping at shadows.

Eric

By Naddi on Monday, September 16, 2002 - 10:26 am:

Eric
Agreed, but is there a reasonable way not to jump?
Naddi

By Eric Ottinger on Monday, September 16, 2002 - 10:52 am:

Naddi,

I would document the fact that the requirement for the 2 month slip did not arise until after the source selection decision.

I would send the amendment to the only offeror that "has not been eliminated from the competition."

Would I be correct if I said that the 0.0008 impact would not affect the source selection decision?

A sleazy contracting office that wanted to reopen the competition for some nefarious purpose (presumably because the wrong offeror is in line for the award) can always find some tiny "piece of lint" flaw to justify an amendment. That is the kind of appearance that I would wish to avoid.

Eric

By Naddi on Monday, September 16, 2002 - 11:30 am:


Oh My

I did not even think of that last interpretation. You are correct that any feasible adjustment will not change the selection decision. Still it seems a simple choice to negotiate the change now. I've been making the numbers up, but the relative magnitude describes my situation pretty closely.
Before this I've never experienced any turbulence from the time of drafting an SDD till the decision was signed. I never thought of using an amendment that way before.

Naddi

By Vern Edwards on Monday, September 16, 2002 - 08:25 pm:

Naddi:

If the change is as negligible as you say it is, you could have sent out the amendment and gotten the offerors' responses by now. Instead, you're scheming to find a way to do something that you're clearly uncertain about and uncomfortable with. Why take a chance?

Email or fax the amendment to everyone, ask them to email or fax any price revisions associated with the amendment, look at the revisions, if any, and then make the award.

It's easy, it can be done quickly, and it's the least controversial thing you can do.

By Vern Edwards on Tuesday, September 17, 2002 - 09:04 am:

Naddi:

One other thing:

You said that a decision document has been "drafted". If it hasn't been signed and notifications made, then nothing is final and no firm has been eliminated from the competition. Sending an amendment to everyone would not "reopen" the competition. Don't worry about appearing to be nefarious.

If you decide to go ahead with an award without amending the RFP and then mod the contract, just do it. Don't prepare an amendment and send it to only one firm. The odds of a getting a protest based on the contract mod are not great, and if you do get one you can just deal with it, seeing as how you're confident that the change is not significant.

By Newly Nefarious Naddi on Tuesday, September 17, 2002 - 01:22 pm:

Appreciate the good words and clear advice. We sent out the amendment to the responsive/responsible offerors Monday morning. We are expecting much less than a 1% cost delta, but the ops folks want some useless materials on the approach (I don't want it, they don't need it, it'll be here next Wednesday). We gave the offerors until 25 September to respond. I really wanted to put a note in one offeror's package saying don't muck-up your current approach; naturally I didn't. I was really surprised at Eric's point about “gaming” the system like that. So much to learn - so few active chat sites.

Naddi

By Eric Ottinger on Tuesday, September 17, 2002 - 05:23 pm:

Naddi put her finger on the point where I am uncomfortable. What authority does Naddi have to restrict the proposal revisions to just ”price revisions associated with the amendment” (i.e. the adjustment for the additional two months)? It has been my understanding that the offeror can make whatever changes to the proposal that the offeror wishes to make.

Vern may be correct regarding the decision document. However, I would think that if the SSA meets with the evaluation team from one o’clock to two o’clock and makes a decision during the meeting, the exact time and date of the decision for legal purposes would be the time and date of the meeting, not the time when the SSA signs a piece of paper documenting the decision.

Does anyone have some authority to cite, addressing this issue one way or the other?

Eric

By Vern Edwards on Tuesday, September 17, 2002 - 08:21 pm:

The GAO has issued several decisions saying that a contractor can revise its proposal in any way that it wishes during negotiations/discussions. However, if an agency has not decided to conduct negotiations/discussions, I think that it can limit proposal modifications to those necessitated by an amendment (see FAR § 15.001 for the distinction between a proposal modification and a proposal revision).

By Vern Edwards on Wednesday, September 18, 2002 - 11:15 am:

I would like to comment about the following remark:

"I would think that if the SSA meets with the evaluation team from one o’clock to two o’clock and makes a decision during the meeting, the exact time and date of the decision for legal purposes would be the time and date of the meeting, not the time when the SSA signs a piece of paper documenting the decision."

A source selection decision is not final until an award has been made. (It might not be final then.) An SSA can change his or her mind at any time prior to contract award, even after signing a decision document, and a higher-level official can overrule a decision by a lower-level SSA.

As long as the ultimate selection decision is made in compliance with the FAR and the terms of the RFP and is otherwise reasonable, it will withstand a protest. The GAO will not sustain a protest merely because an SSA changed his or her mind or was overruled. The exact time and date of the decision has no significance in that regard.

While changing a selection decision might raise suspicions in the mind of an offeror and prompt it to protest, that possibility should not deter an SSA from making the decision that he or she thinks is in the government's best interest.

By Eric Ottinger on Wednesday, September 18, 2002 - 05:07 pm:

Vern,

Just recently you argued that it was perfectly permissible to negotiate with just the successful offeror. I agreed. However, in my view, such negotiations should not be in any way prejudicial to the other offerors.

Now you are arguing that the determination of the successful offeror dithers in a state of quantum uncertainty right up to the point where the contract is signed.

I prefer the answer that you gave in the earlier thread.

Eric

By Vern Edwards on Wednesday, September 18, 2002 - 08:10 pm:

Eric:

Your notion of there being an "exact time and date of the decision for legal purposes" has no merit. What legal purpose? A source selection decision is final when the contracting officer awards the contract and makes the required notifications, and not before. Even then the decision might not be final if the SSA, some higher level authority in the agency, the GAO, or a federal judge decides that the initial decision was unsound. If you want to call that "quantum uncertainty," that's okay by me, but that's the way it is.

I agree that a contracting officer can negotiate with only the successful offeror after selection and prior to award (like in the old NASA procedure or the DOD "Four-Step" procedure), but in my opinion the RFP should announce the possibility that the contracting officer has reserved the right to do that. Even then, you have to decide whether or not to amend the RFP if your requirement changes.

In Naddi's case, I think that the most sensible thing to do was to amend the RFP, tell the offerors to submit proposal modifications limited to responses thereto, and then proceed to decision. The whole process could have been done in a couple of days and without any serious controversy.

By Anonymous on Friday, October 04, 2002 - 11:29 am:

Done + one week. It still seems a shame to have gotten the exta documentation from people who were not going to win almost no matter what they said.

Naddi

By Anon on Friday, October 04, 2002 - 03:21 pm:

Yeah, but you kept the process clean and nobody can say you didn't afford them a fair opportunity.