June 04, 2013

The Competitive No Bid.

FAR Subpart 15.403-1(c)(1)(ii) provides for a competitive finding of fair and reasonable pricing from the receipt of only one bid, as long as (a) the awardee submitted their bid with the expectation of competition; (b) solicitations are sent to two or more technically qualified offerors; and (c) at least one other offeror submits a valid "no bid".  

The two "tricks" to this price analysis technique are closely intertwined. The "no bid" (1) has to be in writing and (2) presents a reason for "no bid" that does not conflict with a finding that the nonsubmitting offeror was technically qualified to receive a solicitation. 

So, for example, a "no bid" from a vendor that states that the vendor does not carry the part requested is probably not a "valid no bid." But a "no bid" that states that the vendor is not responding because it cannot meet the delivery requirements in the solicitation probably is valid.  

I say "probably" because circumstances can cut both ways. If normal course of dealings should have alerted the buyer that the vendor was unable to meet delivery requirements, there may not have been a reasonable expectation of submission of a technically sufficient proposal. If the vendor has stocked the part in the past and just recently stopped offering the part for sale, there very well may have been a reasonable expectation of a sufficient bid.  

The devil is in the documentation, as always.  

Requirements: (a) bid list; (b) RFQ; (c) bid and at least one valid "no bid;" (d) Price analysis template completed with a narrative that explains the technical qualifications of the "no bidder" in enough detail to convince a third party reviewer that there was a reasonable expectation of bid receipt (signed and dated prior to award); and (e) any objective evidence that supports the narrative, including but not limited to vendor marketing information, price lists and, of course, any statements made by the vendor subsequent to submission of the "no bid" that apologize for being unable to bid and reinforce their eligibility for future RFQs.