Defective Solicitation

The contract specialist role can be contracted out.  

If if your client doesn't want to ask reasonable questions now, you might recommend that they include their assumptions in the proposal they submit.

The KO role cannot be contracted out. Contractors can write RFPs but I'm not sure whether a contractor can act as point of contact for questions from prospective offerors before the proposal due date. I feel that is the responsibility of the agency to clear up.  

I recommend not waiting until after award to voice your specific concerns and questions.

The following assumes that the government contracting agency has some level of competence to award and administer the resulting contract. This might not be a safe assumption if your allegations  about the quality of the RFP are correct. However, The government KO might not be aware of the problems with the contractor prepared RFP and might be able to do something about it before award.  

Your client might not be able to "fix problems" after award for various reasons. If there are obvious, patent errors or ambiguities in the solicitation, it might prevent the awardee from claiming a different interpretation than the government's.   The firm generally has a duty to inquire rather than rely on its interpretation if the difference in opinion will affect the price or work product.

I feel that if you simply state your "assumptions" or interpretation of questionable terms in your offer, that won't guarantee that the government will correctly respond to or consider your interpretations/concern before or after award.  If other firms don't voice similar concerns, the government might simply dismiss your proposal as "non-conforming" to its interpretation of the terms.

I would advise you to raise your concerns ASAP.

On 7/10/2016 at 9:04 AM, Old_Guard said:

My sense is that if this RFP is being issued by a contractor who is pretending to be a CO, it's not even awardable, but I wanted to check with the experts to see if the world has turned upside-down recently and now they now allow the contracting officer role to be outsourced.

Contracting officers have the authority to enter into, administer, and terminate contracts (FAR 1.602-1). You might be addressing two different issues.

(1) The contracting officer can and does delegate many of the contracting functions to subordinate contract specialists. Sometimes, the contracting officer delegates some administrative contracting functions to contractors (non-Government). 

(2) You seem to have an issue with a contracting officer delegating to a contractor (non-Government) the administrative contracting function of posting ("issuing") a solicitation and serving as the primary POC. PepeTheFrog doesn't see a problem with that scenario if it is done correctly, but the solicitation should state the name and contact information for the actual contracting officer and contracting office. If the contractor who posts the solicitation and "answers the mail" merely acts as a middleman and forwards everything important to a contracting officer or a (Government) contract specialist, who cares?

joel hoffman said:

I'm not sure whether a contractor can act as point of contact for questions from prospective offerors before the proposal due date. I feel that is the responsibility of the agency to clear up.

The FAR makes it clear that the contracting officer is the point of contact:

Quote

FAR 15.201(f)

"After release of the solicitation, the contracting officer must be the focal point of any exchange with potential offerors."

I would check the solicitation and buying office and see if there is a solicitation ombudsman for this buying office that you can contact and raise your issues and concerns. Some agencies have established an ombudsman to help resolve concerns or disputes that arise during the acquisition process, including the solicitation phase, and this may be helpful with your situation.

Matthew Fleharty said:

The FAR makes it clear that the contracting officer is the point of contact:

FAR 1.108(b)

“Delegation of authority. Each authority is delegable unless specifically stated otherwise (see 1.102-4(b)).”

I don't see FAR 15.201(f) as an authority (FAR 1.102-4(b) discusses "authority" in the regards to making decisions), I consider it a procedural issue, which FAR 1.108(b) does not mention.  Maybe I'm wrong though, I'd be happy to hear others' thoughts.

Matthew Fleharty said:

The FAR makes it clear that the contracting officer is the point of contact:

 Quote

FAR 15.201(f)

"After release of the solicitation, the contracting officer must be the focal point of any exchange with potential offerors."

That's pretty clear to me. Thanks, Matthew.

Old Guard,

 ji20874's advice is best advice, which is clearly outline all assumptions to your proposal.  Who cares if a contractor sent out the RFP, a thorough job by a proposal manager will usually if not always have assumptions, and just because this RFP is worse than others shouldn't change your approach.  The government outsourced the issuance of the RFP, and the company is outsourcing the response to RFP, your job in all this cross communication is to make it clear the "price' is based on these assumptions.

Does anyone see a potential 18 U.S.C. 1905 issue here?

Retreadfed said:

Does anyone see a potential 18 U.S.C. 1905 issue here?

Support contractors who are anywhere close to acquisitions or contracting should be required to sign Non-Disclosure Agreements (NDA).

On July 10, 2016 at 6:04 AM, Old_Guard said:

After digging a little, the "Contracting Officer" who issued this RFP appears to be a contractor who lists his job title as a "Contracting Specialist Consultant" on his LinkedIn profile.

On July 10, 2016 at 6:04 AM, Old_Guard said:

My sense is that if this RFP is being issued by a contractor who is pretending to be a CO

Old Guard:

I have two questions for you:

First, what, specifically, have you seen that makes it "appear" that a contractor "issued" the RFP and is acting in the capacity of a contracting officer? Be very specific. So far you've told us nothing but your impressions -- no specifics. Did the contractor sign as "contracting officer"? Where? On a form? Someplace else?

Second, of what do you think the act of "issuing" consists? If, for instance, a contracting officer told the contractor (or anybody else) to announce and post the RFP at FBO, then who "issued" it?

On July 10, 2016 at 6:04 AM, Old_Guard said:

I have a client who is bidding on a solicitation that is easily the worst RFP I have seen in 25 years in the business.

On July 10, 2016 at 6:04 AM, Old_Guard said:

It is very apparent that the solicitation is defective (they state the contract type as Hybrid T&M/FFP/CR with one CLIN), but my client would rather press forward and fix problems after award.

Those problems are entirely independent from the "problem" of the suspicion that a contractor is acting in the capacity of a contracting officer.

Advise your client to submit a list of specific defects to the CO and request (or suggest) corrective action. Your client will do it or they won't. Either way, you will have done what consultants do and can accept your check with a clear conscience.

Matthew Fleharty said:

The FAR makes it clear that the contracting officer is the point of contact...

Matthew:

Do you think that the contracting officer must field all inquiries personally and that he or she may not delegate that task? Does being a "focal point" entail personal performance?

Vern Edwards said:

Matthew:

Do you think that the contracting officer must field all inquiries personally and that he or she may not delegate that task? Does being a "focal point" entail personal performance?

Vern,

Depends on what you mean by "field inquiries personally" and "entail personal performance," but I think I can adequately respond with only minimal assumptions.  "Focal point" is defined as a point of convergence or "center of activity" (http://www.dictionary.com/browse/focal-point or https://ahdictionary.com/word/search.html?id=F5223400 ) which means after the release of a solicitation, information should flow in and out of the organization through the contracting officer - once the information is within the organization, the team can work together in preparing/drafting a response (e.g. the drafting of an amendment or a response could be "delegated" to a contracts manager or other acquisition team member), but it shouldn't leave the organization without going through the contracting officer (for signature and/or distribution) which would entail at least some personal performance by the contracting officer.

Pepe, what bearing does an NDA have on whether a 1905 violation has occurred?

Matthew Fleharty said:

after the release of a solicitation, information should flow in and out of the organization through the contracting officer

I don't know what you mean by "flow... through the contracting officer," and the moment I see the word "team" you lose me.

By "personally" i mean in person, directly, and not through an agent or other representative. I say that a CO can tell offerors to address all inquires to her office and that she can tell a contract specialist to handle the inquiries and to see her if they don't know the answers. I say that it is within her authority as a CO to delegate that task in that way.

Do you agree?

Vern Edwards said:

I say that it is within her authority as a CO to delegate that task in that way.

According/pursuant to...?

Vern Edwards said:

Do you agree?

If information will reach or leave the government without the contracting officer's receipt or distribution of that information I do not agree because that is inconsistent with FAR 15.201(f).  Is it your opinion that a contracting officer has the authority to alter the procedural requirements of the FAR (i.e. assign a focal point other than the contracting officer)?

Quote

Is it your opinion that a contracting officer has the authority to alter the procedural requirements of the FAR (i.e. assign a focal point other than the contracting officer)?

Matthew:

FAR 15.201(f) does not specify any "procedural requirements" for responding to inquiries. It says that the contracting officer must be the focal point. Focal point is not a procedure. The focal point is responsible, but they fulfill that responsibility through the auspices of their offices and their representatives.

The GAO and the Court of Federal Claims have interpreted FAR 15.201(f) as requiring that all offerors be provided with the same information. See GROH GmbH, B-291980, 2003 CPD ¶ 53; Spectrum Sciences v. U.S., 84 Fed. Cl. 716, Dec. 8, 2008. It is the CO's responsibility to ensure that, but they need not do it personally. They can do it through others. As long as the objective is fulfilled, there is no issue as to how it is done.

Contracting officers don't have to personally conduct contract negotiations, source selection discussions, or debriefings. In the same way, they don't have to personally receive or respond to inquiries about solicitations. They are responsible for those responses, but they need not write them or review them. (I'm talking about the law, not about what would be good management practice.)

I think you're reading much too much into FAR 15.201(f), but be my guest. In an earlier response to jwomack you rejected the idea that this is a matter of authority. Now you ask about authority. jwomack had it right. Read FAR 1.108(b). When you delegate authority, you retain responsibility.

We disagree, and I don't think further discussion of the matter will bring us into agreement. We read FAR differently.

Vern

Matthew:

Argument would have to be made that the delegation Vern mentioned is prohibited.

FAR 1.1 - If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited.

FAR 1.102-4(b) - The authority to make decisions and the accountability for the decisions made will be delegated to the lowest level within the System, consistent with law.

FAR 1.108(b) - Each authority is delegable unless specifically stated otherwise.

FAR 1.602-2 - In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment.

In practice, I think the CO will review inquiries as they see fit, but will remain responsible for all of the answers, reviewed or not.

Retreadfed said:

Does anyone see a potential 18 U.S.C. 1905 issue here?

No.

Matthew Fleharty said:

According/pursuant to...?

If information will reach or leave the government without the contracting officer's receipt or distribution of that information I do not agree because that is inconsistent with FAR 15.201(f).  Is it your opinion that a contracting officer has the authority to alter the procedural requirements of the FAR (i.e. assign a focal point other than the contracting officer)?

Matthew,

"Contracting officer" is defined in FAR 2.101 as:

Quote

“Contracting officer” means a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings. The term includes certain authorized representatives of the contracting officer acting within the limits of their authority as delegated by the contracting officer. “Administrative contracting officer (ACO)” refers to a contracting officer who is administering contracts. “Termination contracting officer (TCO)” refers to a contracting officer who is settling terminated contracts. A single contracting officer may be responsible for duties in any or all of these areas. Reference in this regulation (48 CFR Chapter 1) to administrative contracting officer or termination contracting officer does not—

(1) Require that a duty be performed at a particular office or activity; or

(2) Restrict in any way a contracting officer in the performance of any duty properly assigned.

So, let's say a contracting officer delegates the authority to be the focal point of any exchange with potential offerors after release of solicitation to a contract specialist. The exchanges between the contract specialist and potential offerors do not "flow through" the contracting officer. Has there been a violation of FAR 15.201(f)?

Vern Edwards said:

Matthew:

FAR 15.201(f) does not specify any "procedural requirements" for responding to inquiries. It says that the contracting officer must be the focal point. Focal point is not a procedure. The focal point is responsible, but they fulfill that responsibility through the auspices of their offices and their representatives.

Vern,

That explanation makes more sense - rightfully or wrongly, I still don't read that sentence as an authority to be delegated (subject to 1.108(b or 1.102-4(b)), but if you read "focal point" as detailing a responsibility of the contracting officer, I think can get on board with that train of thought.  I still don't know how a contracting officer would fulfill that responsibility with zero involvement; however, as you mentioned, all sound business/management practices are not necessarily required by law.  Thanks for your input and feedback.

Matthew:

You are making way too much of the phrase "focal point."

"After release of the solicitation, the contracting officer must be the focal point of any exchange with potential offerors" indicates nothing more than that the people in the contracting office are in charge of all exchanges of information. That sentence was put there to give the contracting people a regulatory basis to rein in the technical people who, left to their own devices, would say goodness-knows-what to goodness-knows-who. It's absurd to claim that it requires the contracting officer to follow any particular procedure.

The key sentence in 15.201(f) is this one:

Quote

When specific information about a proposed acquisition that would be necessary for the preparation of proposals is disclosed to one or more potential offerors, that information must be made available to the public as soon as practicable, but no later than the next general release of information, in order to avoid creating an unfair competitive advantage.

Vern Edwards said:

Matthew:

You are making way too much of the phrase "focal point."

Maybe so, but I recall someone lecturing during FAR Bootcamp on the importance of paying attention to the words in the FAR, plain language, etc. and that sentence reads how it reads.  Just out of curiosity, what's your definition of "focal point?"

Vern Edwards said:

"After release of the solicitation, the contracting officer must be the focal point of any exchange with potential offerors" indicates nothing more than that the people in the contracting office are in charge of all exchanges of information. That sentence was put there to give the contracting people a regulatory basis to rein in the technical people who, left to their own devices, would say goodness-knows-what to goodness-knows-who. It's absurd to claim that it requires the contracting officer to follow any particular procedure.

If that is so, why doesn't FAR 15.201(f) instead read something along the lines of "...the contracting office/activity (or an individual designated by the contracting officer) must be the focal point of any exchange with potential offerors?"

Matthew Fleharty said:

Maybe so, but I recall someone lecturing during FAR Bootcamp on the importance of paying attention to the words in the FAR, plain language, etc. and that sentence reads how it reads.  Just out of curiosity, what's your definition of "focal point?"

Well, a FAR Bootcamp graduate will remember that you first look for an official definition. There is no official definition of focal point. That being the case, you look for a common dictionary definition in accordance with FAR 1.108(a). Here is what the FAR Bootcamp official dictionary, The American Heritage of the English Language 5th, says:

focal point, n. See focus.

Quote

fo·cus

Share: 

1. 

a. The distinctness or clarity of an image rendered by an optical system.

b. The state of maximum distinctness or clarity of such an image: in focus; out of focus.

c. An apparatus used to adjust the focal length of an optical system in order to make an image distinct or clear: a camera with automatic focus.

2. 

a. A point at which rays of light or other radiation converge or from which they appear to diverge, as after refraction or reflection in an optical system: the focus of a lens. Also called focal point.

b. See focal length.

3. 

a. A center of interest or activity: "Precisely how diet affects E. coli in livestock is the focus of current research" (Cindy Engel).

b. Close or narrow attention; concentration: "He was forever taken aback by [New York's] pervasive atmosphere of purposefulness—the tight focus of its drivers, the brisk intensity of its pedestrians" (Anne Tyler).

c. A condition in which something can be clearly apprehended or perceived: couldn't get the problem into focus.

4. Medicine The region of a localized bodily infection or disease.

5. Geology The point of origin of an earthquake.

6. Mathematics A fixed point whose relationship with a directrix determines a conic section.

Term of art? Well, maybe, in the field of optics: 

     the point at which initially collimated rays of light meet after passing through a convex lens, or reflecting from a concave mirror

Maybe the field of game theory:

     an equilibrium more likely to be chosen by the players because it seems special, natural or relevant to them

Those are among several special usages provided in Wikipedia. Which do you like best?

FAR 15.201(f) is what happens when people assigned to write a regulation resort to metaphor instead of plain English, which is what the law requires. And what you have been doing is what people do when they inappropriately attribute clear meaning of their own choice to the inappropriate choices of regulation writers in a way that needlessly limits CO discretion and freedom of action.

Based on my knowledge and experience, an appropriate interpretation of the meaning of the contracting officer shall be the focal point is that inquires are to be directed or forwarded to the contracting officer or someone in the contracting office who will do with them what is appropriate in light of the rest of FAR 15.201(f), the decisions of the GAO and the COFC, and sound professional contracting practice. That would include directing a contract specialist to read them and obtain the information sought from appropriate specialists within the agency, such as the technical personnel, the legal office, or the contracting officer herself.

As to your last question: as I recall you were unable to attend the recent Critical Thinking course at SMC. Check online listings of logical fallacies and see if you can identify the one that your question entails. The research will be useful to you. I won't answer such a question.

I hope you know that I think the world of you, Matthew. If I didn't, I wouldn't have wasted my time here. If you stick around and get a star, and if I'm still alive, please invite me to the pinning on ceremony.

Vern Edwards said:

Well, a FAR Bootcamp graduate will remember that you first look for an official definition.

I certainly didn't forget that rule (refer to post #16).  Whether my definitions were adequate or not, well...

Vern Edwards said:

FAR 15.201(f) is what happens when people assigned to write a regulation resort to metaphor instead of plain English, which is what the law requires. And what you have been doing is what people do when they inappropriately attribute clear meaning of their own choice to the inappropriate choices of regulation writers in a way that needlessly limits CO discretion and freedom of action.

Fair point and thanks for the reminder.  I have a follow up question:

Since the use of metaphor versus plain English is not always readily apparent, any advice on distinguishing between the two when reading and interpreting regulations?

Vern Edwards said:

As to your last question: as I recall you were unable to attend the recent Critical Thinking course at SMC. Check online listings of logical fallacies and see if you can identify the one that your question entails. The research will be useful to you. I won't answer such a question.

As I was typing that sentence, I thought about stating that it was a facetious remark, but then a part of me hoped that maybe someone could offer an explanation (however unlikely).  I think you answer the point anyways with your previous statement regarding writers of the regulation using metaphor instead of plain English - I'll try in the future not to shift the burden or appeal to ignorance (not sure which term/label for the fallacy you taught in your Critical Thinking course), but it wasn't an attempt to prove my previous position if no one provided an explanation, I was merely trying to gather any information that may or may not be out there.

Matthew Fleharty said:

Since the use of metaphor versus plain English is not always readily apparent, any advice on distinguishing between the two when reading and interpreting regulations?

Definition and context are the only ways to distinguish that I can think of.

Vern Edwards said:

And what you have been doing is what people do when they inappropriately attribute clear meaning of their own choice to the inappropriate choices of regulation writers in a way that needlessly limits CO discretion and freedom of action.

Ain't that the truth!  It happens all too often, by otherwise reasonable people.  We need to read and interpret the FAR in a reasonable manner, in a manner that makes sense, and so forth.  Common sense, please...

Vern Edwards said:

Definition and context are the only ways to distinguish that I can think of.

I've gained a new interest in pursuing/understanding this topic a bit more so, while I'm doing my own research, if you or anyone else has examples of the use of metaphor instead of plain English in contracting regulations I'd like to see the references/excerpts.

Remember the definition of metaphor:

Quote

A figure of speech in which a word or phrase that ordinarily designates one thing is used to designate another, thus making an implicit comparison, as in "a sea of troubles" or "All the world's a stage" (Shakespeare)." The American Heritage Dictionary of the English Language, 5th.

Thus, ceiling price, which is used in several places, e.g., FAR 8.404(h)(3)(ii)(B): "Include a ceiling price in the order that the contractor exceeds at its own risk." Why not say price limitation or price limit or maximum price? FAR is full of that sort of thing. Much professional jargon is metaphorical in nature. Strategy is another such term. What the hell is an acquisition strategy? That's military terminology. It comes from the Greek for generalship. Evolutionary acquisition is another metaphorical term, developed by people who obviously don't know anything about the theory of evolution. Sounds good, though. See Harvard Business Review, September 2003, "The Fruitful Flaws of Strategy Metaphors."

I'm not suggesting that the FAR councils should go through and change all that sort of thing. I'm just saying that we should not read too much into poor word choices that produce vague terms. Such usages come from people who don't have a clear idea about what they mean when they say something.