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  • Question

    This offeror will win the award regardless because the particular color was not a requirement. However, can we contact the LPTA, without opening discussions with the rest of the offerors, to determine whether that LPTA offeror is able to provide the preferred color at the same (or lower) price?


    Answer

    As the referenced below FAR information indicates, when awarding LPTA,  you may have exchanges.  However in an LPTA without discussions, those exchanges are limited to:
     
      “… offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.”
     
    Therefore, asking anything beyond that is probably opening the door – if you talk to one, you have to talk to all in a “Discussions” type exchange. 
     
    Of course you would want to discuss this with legal counsel before taking any action.
     
    FAR 15.101-2 -- Lowest Price Technically Acceptable Source Selection Process.
     
    (a) The lowest price technically acceptable source selection process is appropriate when best value is expected to result from selection of the technically acceptable proposal with the lowest evaluated price.
     
    (b) When using the lowest price technically acceptable process, the following apply:
     
      (1) The evaluation factors and significant subfactors that establish the requirements of acceptability shall be set forth in the solicitation. Solicitations shall specify that award will be made on the basis of the lowest evaluated price of proposals meeting or exceeding the acceptability standards for non-cost factors. If the contracting officer documents the file pursuant to 15.304 <http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/15.htm> (c)(3)(iii), past performance need not be an evaluation factor in lowest price technically acceptable source selections. If the contracting officer elects to consider past performance as an evaluation factor, it shall be evaluated in accordance with 15.305 <http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/15.htm> . However, the comparative assessment in 15.305 <http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/15.htm> (a)(2)(i) does not apply. If the contracting officer determines that a small business’ past performance is not acceptable, the matter shall be referred to the Small Business Administration for a Certificate of Competency determination, in accordance with the procedures contained in subpart 19.6 and 15 U.S.C. 637(b)(7)).
     
      (2) Tradeoffs are not permitted.
     
      (3) Proposals are evaluated for acceptability but not ranked using the non-cost/price factors.
     
      (4) Exchanges may occur (see 15.306 <http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/15.htm> ).
     
    FAR 15.306 -- Exchanges With Offerors After Receipt of Proposals.
     
    (a) Clarifications and award without discussions.
     
      (1) Clarifications are limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.
     
      (2) If award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals (e.g., the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors.
     
      (3) Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions. If the solicitation contains such a notice and the Government determines it is necessary to conduct discussions, the rationale for doing so shall be documented in the contract file (see the provision at 52.215-1 <http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/52_215.htm> ) (10 U.S.C. 2305(b)(4)(A)(ii) and 41 U.S.C. 253b(d)(1)(B)).

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