Can one make an award to a vendor that did not respond to the posted solicitation for competition? (The lowest price vendor informed us that were unwilling to respond to fedbid solicitations)
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FAR 13.106-2 directs contracting officers to evaluate quotations or offers on the basis established in the solicitation. Also, in accordance with FAR 15.209, when contracting by negotiations (including LPTA) the provision at 52.215-1, “Instructions to Offerors -- Competitive Acquisition” should be inserted in all competitive solicitations, using the appropriate Alternate if required.
FAR 52.215-1(c)(3)(i) places the responsibility on the offeror to submit proposals in accordance with location and time specified in the solicitation. The language of 52.215-1(c)(3)(ii)(A) states that any late offers will not be considered unless it meets a set of exceptions, none of which allow for inclusion based on the price. Even if the provision at HHSAR 352.215-70 was inserted in the solicitation, the window only allows for a maximum of 5 calendar days after the exact time specified for receipt.
Per the language of FAR, in order to be considered for award, a contractor must submit a quote or offer in accordance with the instructions of the solicitation. Also, a submission after the time specified in the solicitation, can only be included in particular circumstances. Thus, an award can not be made to a vendor who did not respond to the solicitation.