Are you Sure About That?

Pete Stamps CPPO, VCOPaul Higgins VCO

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1. F.O.B. ORIGIN (Q)

CoVA has awarded a contract for products which were priced as F.O.B. Origin. The warehouse supervisor has received the shipments indicating that some damage is being noted. CoVA contacts the contractor but the contractor states that is not his problem as the pricing was F.O.B. origin.

Who is correct - Commonwealth or Vendor?

1. F.O.B. ORIGIN (A)

F.O.B. is defined as “Free on Board” and it usually signifies where title passes. Generally if title passes at origin, the contracting entity is responsible not only for transportation costs but also for working with the transporters in seeking resolution of damage claims. However the vendors manual, para 7.5 states: “The state accepts title only when goods are received regardless of F.O.B. point”.

Correct Position: The Commonwealth

2. Contractor Responsibility (Q)

CoVA currently has a contract with a vendor whose performance has been subpar and CoVA has documented such in the procurement file. While the project is continuing, CoVA has another project for which it has received bids and this vendor is the low bidder. Based on the documentation, it is determined that this bidder is nonresponsible and it was awarded to the next low responsive and responsible bidder. The bidder says not so fast, you can’t do that!

Who is correct - Commonwealth or Bidder?

2. Contractor Responsibility (A)

Para 9.5 of the Vendors Manual, Appeal of Nonresponsibility Determination and §2.2-4359, Code of Virginia, requires the following: Notify the bidder of your “Intent” to render such determination. Bidder has 5 Business days from receipt of the notice to review the files; Bidder has 10 Business days from receipt of the notice to submit rebuttal information. The agency has 5 Business days to issue its written determination. The determination will be final unless the bidder appeals in 10 days.

Correct Position - The Bidder

3. Nonresponsibility Determination (Q)

CoVA has recently completed a nonresponsiblity action (no appeal) and has opened bids for another procurement in which the bidder who was determined to be nonresponsible is the low bidder on this new project. Since he has just been determined to be a nonresponsible bidder, the award is made to the next lowest responsive/responsible bidder. The bidder protests.

Who is correct – Commonwealth or bidder?

3. Nonresponsibility Determination (A)

Since this bidder has not been debarred, you must initiate the same nonresponsibility process as outlined in the previous scenario. Each procurement action must stand on its own merit. (See §2.2-4359, Determination of nonresponsibility.

Correct Position - The Bidder

4. Qualified Contractors List (Q)

CoVA has established a QCL with 8 vendors for consulting services and now is ready to establish a contract. CoVA awards the contract to Able Consulting based on their alphabetical order. Beta Consulting protests.

Who is correct – Commonwealth or Vendor?

4. Qualified Contractors List (A)

The prequalification process is not competitive in terms of pricing. Placement on the QLC only signifies that the vendor meets the prequalification standards established by the public agency. Requirements greater than $5K must be competed. (See para 4.5, APSPM.)

Correct position – the Vendor.

5. Mistake in Bid (Q)

CoVA awarded a contract as a result of a Quick Quote. After the purchase order has been issued, the vendor contacts CoVA and states he has reconsidered his price and will be unable to fulfill the order at the price quoted and instructs CoVA to cancel the order. CoVA tells the vendor that they are unable to cancel the order. The Vendor states he will see you in court.

Who is correct – Commonwealth or the Vendor?

5. Mistake in Bid (A)

Bids containing mistakes shall not be corrected or withdrawn after award of a contract or issuance of a purchase order. No plea or claim of mistake in bid or resulting contract shall be available as a defense in any legal proceeding brought upon a contract or purchase order awarded to a bidder as a result of the breach or nonperformance of such contract or purchase order.(Vendor’s Manual 5.13d -Mistakes Discovered After Award)

Correct Position: Commonwealth

6. Preferences (Q)

CoVA solicited bids for a piece of equipment and received several competitive bids. The apparent lowest responsive and responsible bidder is a vendor from North Carolina. The 2nd responsive and responsible bidder is from Virginia. CoVA posts a Notice of Intent to Award to the Virginia bidder. The NC bidder states he will protest if the award is made to other than the lowest bidder.

Who is correct – Commonwealth or NC Bidder?

6. Preferences (A)

If the lowest responsive and responsible bidder is a resident of any other state and such state under its laws allows a resident contractor of that state a price-matching preference a like preference shall be allowed to bidders who are residents of Virginia. (APSPM 3.14a, Reciprocal Preferences)

Who is correct – Commonwealth

7. Subcontracting Plan (Q)

The awarded vendor had included in their bid the Prime Contractor Small Business Subcontracting Plan. This plan included utilizing a DMBE small business as a sub-contractor for 30% of the awarded contract. CoVA withholds final payment because they have no documentation that the vendor sub-contracted the 30%. The vendor threatens to sue.

Who is correct – Commonwealth or Vendor?

7. Subcontracting Plan (A)

Final payment under the contract in question may be withheld until such certification (name of firm of sub-contractor, phone number, total dollar subcontracted, SWaM category and type of service provided) is delivered.

(APSPM 3.10h)

Who is correct – Commonwealth

8. Protest of Award (Q)

CoVA posted an “Intent to Award” on a competitively negotiated procurement (not a Best Value RFP) and one of the Offerors reviews the procurement file and submits a written protest within the 10 day window. The basis of his protest is the fact that the evaluation team did not rescore proposals after negotiations had been completed. CoVA states that this is not a requirement of the evaluation process.

Who is correct – Commonwealth or the Offeror?

8. Protest of Award (A)

When negotiations have been completed with the selected Offerors, the evaluation team must rescore the proposals in order to determine the final standings based on the RFP scoring criteria and award made to the highest scored proposal. (APSPM – Annex 7-B, Step 12, paragraphs iv. and v.)

Who is correct? Offeror

9. Proprietary Information (Q)

Proposals have been received as a result of a RFP. One offeror has declared their entire proposal proprietary. CoVA notifies the offeror that their proposal has been rejected and removed from further consideration. The offeror demands that CoVA reconsider their proposal.  Who is correct – Commonwealth or Offeror?

9. Proprietary Information (A)

APSPM 3.17f- The classification of an entire bid or proposal document…as proprietary or trade secrets is not acceptable. If, after being given reasonable time, the bidder or offeror refuses to withdraw an entire classification designation, the proposal will be rejected.Correct Position: The OfferorThe offeror was not given an opportunity to reconsider the designation of the entire document and identify the data or other materials to be protected and the reasons why the protection is necessary.

10. Public Access to Records (Q)

An offeror who submitted a proposal has requested the opportunity to review the proposal records prior to the award. The contract officer tells the offeror they plan to make an award tomorrow and the records will then be available and that he will have ten (10) days to review the contract file and file any protests. The offeror demands that you delay the award until he has had an opportunity to review the file. Who is correct – The Commonwealth or Offeror? 

10. Public Access to Records (A)

APSPM 3.17c Any offeror who responds to an RFP, upon request shall be afforded the opportunity to inspect proposal records within a reasonable time after the evaluation and negotiation of proposals are complete but prior to award. Correct Position: The Offeror