LPTA Question

Desparado said:

Can you use subjective criteria when conducting an Lowest Price Technically Acceptable (LPTA) acquistion?

Have you seen anything in any statute, regulation, or other official publication that says you cannot? If you haven't, why are you asking? I'm sure you are familiar with the guiding principles of the FAR System.

Did your legal say that you cannot use subjective criteria or did he say subjective but mean unclear or indefinite? If he said subjective he may have meant vague. Then again, he may not have thought before speaking and really doesn't know what he means, in which case you should go back and ask him to clarify. Vague and subjective are not the same.

To answer your first question, I haven't and the reason I am asking is that Legal is throwing up a potential roadblock because she feels that in a pass/fail situation the criteria needs to be plainly stated and crystal clear.  I feel that our TEP should be given the lattitude to evaluate the offers with their knowledge and make a determination whether the proposed method is technically acceptable or not (in accordance with the performance criteria of the PWS).  Granted, vague and subjective are not the same, so do you feel it is too vague?

She felt that it was not specified enough as to what the offeror would have to do in order to meet that bar and get a "pass".  She felt that an offeror could come back and say that, "well, I proposed to do it this way and you failed it but I believe it is sound and so I will protest", which of course any contractor can do.  She is concerned that if they did we are at risk because we didn't specify precisely enough where that pass/fail line is.

Desparado said:

Offeror's technical approach will be evaluated on a Pass/Fail basis.  The technical approach will be evaluated to determine whether it is technically sufficient in that it provides an approach that will accomplish the tasks stated in the Performance Work Statement within the timeframe specified. 

As this acquisition is in the pre-solicitation phase I cannot really give any details as to the type of work being performed but suffice it to say that I would like the TEP to be able to review the proposals and evaluate them on a pass/fail basis using this criteria.

Desparado said:

I feel that our TEP should be given the lattitude to evaluate the offers with their knowledge and make a determination whether the proposed method is technically acceptable or not (in accordance with the performance criteria of the PWS).

Those statements lack details. They're too vague. The problem with them is not that they say you want the evaluators to be free to decide subjectively. The problem is that the statements do not say what attributes (features, qualities, characteristics) of the offerors and of their "approaches" the evaluators will look for when making their decision.

Suppose that you are recruiting for someone to manage a company that provides a specific kind of service and that you are inviting people to submit resumes. Suppose further that you say you are going to evaluate candidates based on whether or not you think they can do the job. One prospective candidate asks: What qualities will you be looking for in a candidate? You say: I'll be looking for whether or not they can do the job.

That statement does not tell prospective candidates whether they must have certain academic credentials, professional certifications, general managerial experience, specific technical experience, a security clearance, a certain kind of reputation, certain mental and physical attributes, a certain health history, etc. The statement does not tell prospective candidates enough to enable them to decide whether their prospects are any good and whether they should bother to apply. It does not tell them enough to prepare a suitable resume.

See FAR 15.304(d).

I think maybe what your lawyer is saying is not that your statements are too subjective, but that they don't provide enough information. Whether you would lose a protest because of it is anybody's guess.

See DM Petroleum Operations Company, GAO B-409004.5, 2014 CPD ¶ 52, Jan. 15, 2014:

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A solicitation must inform offerors of the basis for proposal evaluation by stating all significant evaluation factors and their relative importance. Federal Acquisition Regulation (FAR) §15.605(d)(1); Israel Aircraft Indus., Ltd, MATA Helicopters Div., B–274389 et al., Dec. 6, 1996, 97–1 CPD ¶41 at 6–7. However, a solicitation need not identify each element to be considered by the agency during the course of the evaluation where such elements are intrinsic to, or reasonably subsumed within, the stated evaluation factors. AT & T Gov't Solutions, Inc., B–406926 et al., Oct. 2, 2012, 2013 CPD ¶88 at 7; Marine Animal Prods. Int'l, Inc., B–247150.2, July 13, 1992, 92–2 CPD ¶16 at 6, 15_._

See also Gentex Corp. v. U.S., 58 Fed.Cl. 634, 652, Dec. 10, 2003:

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The law requires that evaluation factors and significant subfactors be clearly stated in an RFP, including the statement of the relative importance of such factors and subfactors. 41 U.S.C. § 253a(b)(1); FAR 15.304(d); ITAC, 51 Fed.Cl. at 348; Analytical Research Tech., Inc. v. United States, 39 Fed.Cl. 34, 44 (1997). Further, as this Court has recognized, “making offerors aware of the rules of the game in which they seek to participate is fundamental to fairness and open competition.” Dubinsky v. United States, 43 Fed.Cl. 243, 259 (1999). Here, the rules of the game were muddied, especially for Gentex, by virtue of the lack of clarity in the RFP....

Although I don't know the details, I think your lawyer is giving you good general advice.

If price is apparently the most important factor, how about using a trade off with price being significantly more important than the non-price factors? You can then use a technical capability/ risk rating scale(s) in the evaluation. 

You will stress price but then may be a bit more subjective in the capability rating and comparison.

joel hoffman said:

You will stress price but then may be a bit more subjective in the capability rating and comparison.

Joel:

Why did you say that? What do you mean by "a bit more" subjective?

• How you measure the quantity (or degree) of subjectivity? What's the scale?
• Do you think that the tradeoff process somehow permits more subjectivity than LPTA? If so, please explain. Can you point to a regulation or decision that supports that notion?

They would not have to use a pass/fail rating system.

They may be able to establish some minimum technical approach requirements for an "acceptable"rating. Then use a rating system that allows the evaluators to discern strengths, weaknesses, degree of risk, etc. - like other trade-off competitions . Then make a comparative analysis between offerors. This provides some flexibility in selecting the winner, if the government justifies why it would pay some more for better performance capability or technical approach.

Unless one can use mechanical distinctions to rate the strength of a factor, there will often be some subjectivity in the evaluation when using a sliding scale rating system rather than simply pass/fail.

The government wouldn't necessarily have to go through the  SBA's Certificate of Competency procedures if it doesn't select a firm where it doesn't have reasonable confidence that the firm will accomplish the tasks in the PWS within the specified timeframe. 

I didn't and don't intend to have to fully describe or justify the differences between go/no-go LPTA and trade-off processes, when making it clear to industry that price is the most important factor. I was simply suggesting that they might consider using the trade off process.

DOD and Congress appear to discourage use of subjectivity in LPTA when conducting DoD source selections. Here is an excerpt from Appendix C of the current DoD Source Selection Procedures:

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C.1 Introduction

The LPTA process is appropriate when best value is expected to result from selection of the technically acceptable proposal with the lowest evaluated price. LPTAs may be used in situations where the Government would not place any value on a product or service exceeding the Government’s threshold technical or performance requirements and these requirements can be objectively defined in measurable terms. Such situations include acquisitions of commercial or non-complex services or supplies which are clearly and objectively defined. When LPTA is used, the solicitation and the Source Selection Plan must clearly describe the minimum requirements that will be used to determine the acceptability of the proposal. LPTA should not be used when the SSA will be required to make a judgment as to the desirability of one offeror’s proposal versus a competing proposal. Well-defined standards of performance and quality of services must be available to support the use of LPTA. When standards of performance and quality are subjective, or the Government places value on higher quality or performance, another approach should be used. The LPTA process does not permit tradeoffs among price and nonprice factors (see FAR 15.101-2).

http://www.acq.osd.mil/dpap/policy/policyvault/USA004370-14-DPAP.pdf

And Congress isn’t too thrilled with subjectivity in LPTA.See Section 813(b) of the FY 2017 NDAA:

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Not later than 120 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement to require that, for solicitations issued on or after the date that is 120 days after the date of the enactment of this Act, lowest price technically acceptable source selection criteria are used only in situations in which—

(1) [DOD] is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;

(2) [DOD] would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;

(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal;

(4) the [SSA] has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to [DOD];

(5) the contracting officer has included a justification for the use of a [LPTA] evaluation methodology in the contract file; and

(6) [DOD] has determined that the lowest price reflects full life-cycle costs, including for operations and support.

Section 813(c) further provides that

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[t]o the maximum extent practicable, the use of [LPTA] source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of—

(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge based professional services;

(2) personal protective equipment; or

(3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.

The DAR Council is working a case to implement Section 813 - Case Number 2017-D017. We should know shortly just what DARsters will do. Here is the status:

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01/11/2017 DARC Director tasked Contract Placement Cmte. to draft proposed DFARS rule. Report due 03/01/2017. Report due date extended to 06/21/2017.

joel hoffman said:

They would not have to use a pass/fail rating system.

They may be able to establish some minimum technical approach requirements for an "acceptable"rating. Then use a rating system that allows the evaluators to discern strengths, weaknesses, degree of risk, etc. - like other trade-off competitions . Then make a comparative analysis between offerors. This provides some flexibility in selecting the winner, if the government justifies why it would pay some more for better performance capability or technical approach.

Unless one can use mechanical distinctions to rate the strength of a factor, there will often be some subjectivity in the evaluation when using a sliding scale rating system rather than simply pass/fail.

The government wouldn't necessarily have to go through the  SBA's Certificate of Competency procedures if it doesn't select a firm where it doesn't have reasonable confidence that the firm will accomplish the tasks in the PWS within the specified timeframe. 

I didn't and don't intend to have to fully describe or justify the differences between go/no-go LPTA and trade-off processes, when making it clear to industry that price is the most important factor. I was simply suggesting that they might consider using the trade off process.

I asked what you meant by "a bit more subjective" and you gave me the above. I don't understand that response. What's a "mechanical distinction"? Are all pass/fail assessments merely the making of mechanical distinctions?

However, I do understand your last sentence and we can let it go at that.

napolik said:

The DAR Council is working a case to implement Section 813 - Case Number 2017-D017. We should know shortly just what DARsters will do.

Yep. But it's not clear to me what the law is supposed to do. When using LPTA, technical acceptability can refer to the acceptability of (a) the attributes of the supply or service being procured, (b) the attributes of the offeror, or (c) to both. In light of that, consider:

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Not later than 120 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement to require that, for solicitations issued on or after the date that is 120 days after the date of the enactment of this Act, lowest price technically acceptable source selection criteria are used only in situations in which—

(1) [DOD] is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;

[Does "minimum requirements" refer just to the supply or service that is being procured or does it include the qualifications of the offeror? Does it include, say, past performance?]

(2) [DOD] would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;

[Same question, plus:. (1) Does that mean that DOD can never use LPTA when one offeror might provide something better than another? (2) How does that apply to evaluation factors relating to attributes of the offeror as opposed to attributes of the supply or service being procured?]

(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal;

[What if the agency is not going to evaluate technical approach? What if it is only going to evaluate experience and past performance?]

(4) the [SSA] has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to [DOD];

[I'm not sure what that means, since when using LPTA agencies must ignore differences in any such factors.]

(5) the contracting officer has included a justification for the use of a [LPTA] evaluation methodology in the contract file;

[Okay. No biggie.]

and (6) [DOD] has determined that the lowest price reflects full life-cycle costs, including for operations and support.

[What does that mean with reference to services? What's the life-cycle cost of a service?]

What does this law do? Does it prohibit subjective assessments of acceptability?

The distinction between subjective and objective is that the first is a matter of judgement and opinion about the thing being observed, while the second is a matter of verifiable observation of the attributes of the thing being observed, without consideration of judgement and opinion. Does the law prohibit the use of judgement and the consideration of opinion when determining technical acceptability? If that was the goal, why not just say so?

DOD agencies may use LPTA only when (a) the technical acceptability of the supplies or services offered and (b) the qualifications of the competing offerors are to be matters of only empirically verifiable observation and measurement.

It will be interesting to see what the DAR Council comes up with. My bet is that they will simply repeat the statute.

Thanks, Napolik.

Thank you all for your comments.  My goal (apparently ill-fated) was to have a PWS that states clearly what the objectives of the project are and for the offerors to provide how they would achieve those objectives.  I do not want to compare one approach to another and am not willing to pay more for one approach versus another, but merely wanted the TEP to be able to evaluate whether an offeror's approach will meet those objectives on a pass/fail basis.  Regardless the approach, if it was technically acceptable, they would get a "pass" and then the award would go to the lowest priced offer that achieved a pass rating.

Desparado said:

My goal (apparently ill-fated) was to have a PWS that states clearly what the objectives of the project are and for the offerors to provide how they would achieve those objectives. I do not want to compare one approach to another and am not willing to pay more for one approach versus another, but merely wanted the TEP to be able to evaluate whether an offeror's approach will meet those objectives on a pass/fail basis.

I think that's perfectly reasonable. All you need to do is provide some details about what facets of each offeror's approach the evaluators will consider when determining whether it will meet your objectives. Come on--that's not hard to, do and it will facilitate evaluation.

I agree. Technical approach is often an evaluated proposal aspect. Since a TEP is going to perform the evaluation, y'all ought to be able to develop criteria, as Vern described, some details of what they will consider.

Ok, this is where it gets tricky... again, I can't go into specifics but I enjoy the intellectual conversation...  What about something like:

Offeror's technical approach will be evaluated on a Pass/Fail basis.  The technical approach will be evaluated to determine whether it is technically sufficient in that it provides an approach that will accomplish the tasks stated in the Performance Work Statement within the timeframe specified. Specifically, the following will be evaluated on a pass/fail basis:

A) Technical approach - The approach must demonstrate a methodology that is proven successful as demonstrated in the accompanying projects (we have them submit 5 projects within the last 5 years where this approach was used successfully).

B Timeline - The approach must demonstrate the ability to complete the project within XX days as required in the PWS. 

Because really, that's all we are looking for... a proven approach that will get the job done within a specific timeframe.

I think you will need to provide a bit more detail as to the contents of the tech approach and the definitions/ characteristics of pass/ fail (e.g. staffing adequacy (i.e. types and volume of labor for tasks; personnel degree/ experience requirements); security clearances; source of resources (i.e. prime or subcontracts).

The elements of the tech approach must be mirrored in the pass/ fail criteria.

How about something this:

In determining the likely effectiveness of an offeror's technical approach on a pass or fail basis, the evaluators will review the offeror's two-page descriptions of each of the following:

• organizational management and supervision structure,
• staffing policies and procedures,
• cost and schedule estimating procedures,
• work assignment and monitoring procedures,
• budget and schedule monitoring procedures, and
• quality control/quality assurance procedures.

The evaluators will consider whether the proposed procedures are realistic and sufficient for the work to be done.

Thank you Vern.  Although some of those do not apply to the project being acquired, it definitely points me in the right direction. This really isn't about staffing so much as it is about the technical approach (the actual method they will use to accomplish the task).  I appreciate everyone's input. 

Thank you.

Desparado,

Is the offeror going to be bound to the "approach" that they propose?

Don - Yes.

How is that performance-based? (I'm assuming that your reference to a performance work statement means that you intend to use performance-based acquisition).

Speaking of LPTA evaluations, look at the GAO decision issued today, B-414531, FreeAlliance.com, LLC, June 19, 2017:  

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Proposals were to be evaluated under three factors:  technical capability, past performance, and price.  RFP at 138.  The technical capability factor was further divided into three subfactors:  (1) understanding and compliance with requirements; (2) certification; and (3) management and staffing plan.  Relevant here, under subfactor 1, understanding and compliance with requirements, proposals were required to “address each work area in sufficient detail to demonstrate a clear understanding” of the Performance Work Statement (PWS).  RFP at 138 (emphasis added).  The RFP also noted that, in evaluating proposals, the agency would assess whether the proposal described “a sound technical approach” as to “how the offeror will fulfill each requirement in the PWS.”  Id. (emphasis added).

Subjectivity had to have entered this evaluation.

http://www.gao.gov/products/B-414531

Don - The contractor is proposing their approach.  We are merely evaluating that it will be technically sufficient.  I see no issue with it still being performance-based simply because we want them to tell us how they are going to do it up-front.

Thanks Napolik.  I will definitely read that one!

Desparado said:

Don - The contractor is proposing their approach.  We are merely evaluating that it will be technically sufficient.  I see no issue with it still being performance-based simply because we want them to tell us how they are going to do it up-front.

Yes, but you said that their approach would be binding. Performance-based acquisition means an acquisition structured around the results to be achieved as opposed to the manner by which the work is to be performed. If the offeror's approach is binding, wouldn't the contract require that the work be performed in a specific manner (i.e., using their proposed "approach")?

Don -  The acquisition is still structured around the results and the contractor is determining the methodology used to achieve those results.  The fact that we are holding them to what they proposed doesn't negate the project as being performance-based, imho.

Napolik - Thank you very much for the GAO decision that was just released yesterday.  It was very timely and to me very applicable.  I appreciate the head's up! 

I was surprised that the Army, which of course falls under the DFARS, used a subjective determination in their evaluation criteria but I think it is great and should be an example that just because it is LPTA doesn't mean that it has to be simply a "did they send in something" approach and can have some actual subjective evaluation associated with it.

Desparado said:

Don -  The acquisition is still structured around the results and the contractor is determining the methodology used to achieve those results.  The fact that we are holding them to what they proposed doesn't negate the project as being performance-based, imho.

Sorry, Desperado, but contractually binding a contractor to a specified manner of performance is inconsistent with PBA, which binds the contractor do whatever it takes to produce a specified outcome. It doesn't make any difference that the contractor proposed the method. See FAR 2.101:

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“Performance-based acquisition (PBA)” means an acquisition structured around the results to be achieved as opposed to the manner by which the work is to be performed."

See also FAR 37.602:

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(b) Agencies shall, to the maximum extent practicable—(1) Describe the work in terms of the required results rather than either “how” the work is to be accomplished or the number of hours to be provided (see 11.002(a)(2) and 11.101)....

I don't care what you guys do in this regard, because I don't believe in PBA. But I must point out that you're being inconsistent. You know how it is here.

Vern - I do... and I appreciate the head's up.  However, playing devil's advocate...  I would argue (splitting hairs) that we are still in compliance.

The acquisition is "structured" around the results to be performed and we do describe the work in the PWS by the required results rather than the "how".  However, I do still believe that the contractor should be held to the methodology they propose because otherwise the government is opened to a bait-and-switch tactic with methodology just like some contractors love to do with their proposed staff (which is why I never want to see resumes).

I always respect your input and I see your point, but I respectfully disagree and still feel that I am ok with my staff coding this acquisition as performance-based because we structured the acquisition around the results and defined it as such in the PWS. There mere fact that we hold a contractor to the method they propose does not negate it from being PBA, imho.

Desparado,

Why wouldn't you use a Statement of Objectives as your work statement instead of a PWS?  Just provide your objectives and have offerors propose how they will meet your objectives.

Desparado said:

The acquisition is "structured" around the results to be performed and we do describe the work in the PWS by the required results rather than the "how".  However, I do still believe that the contractor should be held to the methodology they propose because otherwise the government is opened to a bait-and-switch tactic with methodology just like some contractors love to do with their proposed staff (which is why I never want to see resumes).

I always respect your input and I see your point, but I respectfully disagree and still feel that I am ok with my staff coding this acquisition as performance-based because we structured the acquisition around the results and defined it as such in the PWS. There mere fact that we hold a contractor to the method they propose does not negate it from being PBA, imho.

The "structured" thing is a dodge, and I think you know it.  Not that I oppose the use of a good dodge now and then, especially in connection with PBA. But now I'm going to pull your chain. As I said, it doesn't matter to me what you do, but it does matter to me when you are being inconsistent.

Quote

I do still believe that the contractor should be held to the methodology they propose because otherwise the government is opened to a bait-and-switch tactic with methodology just like some contractors love to do with their proposed staff (which is why I never want to see resumes).

Bait and switch? They're supposed to bait you with the promise to produce the specified results without fail no matter what it takes and no matter what it costs them. They "proposed" a methodology only because you asked them to. Presumably, you asked them to so you could judge the likelihood that they would succeed in producing the specified result, which is what you're supposed to hold them to. Once the contract is awarded they are supposed to do whatever it takes. The policy makers spent 20 years trying to drum that into the heads of GS-1102s. Do I have to cite something out of 20 years of policymaking? You should know this as well as I.

What if it turns out that, try as they might, the contractor cannot produce the specified result through its "methodology"? Both you and the contractor misjudged the methodology. Have you let it off the hook? A good lawyer would eat you alive. You insisted that they use the methodology, even though it wouldn't work, even though a change in methodology would have worked. And oh, by the way, a change in methodology from something that wouldn't work to something that would work might cost you money. After all, it could only happen if you changed the contract.

Don't take any of this seriously. I just like to jerk on the collars of PBA people.

Desparado said:

I was surprised that the Army, which of course falls under the DFARS, used a subjective determination in their evaluation criteria

The passage quoted by napolik is not from DFARS. It's from the DOD Source Selection Procedures, which appear to be part of the PGI. DFARS says nothing about LPTA. The term appears only once in the DFARS, in a reference to small business subcontracting plans. DFARS does not prohibit the use of subjective factors in an LPTA source selection.

It's not clear that the DOD Source Selection Procedures prohibit the use of subjective factors with LPTA. napolik quoted a single paragraph in a four page appendix to the Procedures. The next paragraph discusses evaluation factors extensively, especially past performance, and does not proscribe the use of subjective factors.

Vern - As always, thank you for your input.  You've given me quite a bit to think about. I'm not ready to change my mind yet, but you've given me food for thought, which I always enjoy.

Consider my chain pulled.

Weno2 - My agency isn't ready for SOO.  Heck, they're barely ready for PBA as evidenced by this conversation.

For design-build construction contracts, where the accepted proposal is incorporated into the contract at award, we use an order of precedence clause. 

In the event of conflict, the order of precedence is:  any betterment in the accepted proposal, the solicitation requirements, any other aspects of the accepted proposal, and the final design deliverables, which are not part of the contract but must meet the contract requirements.  

A "betterment" is defined as any feature in the accepted proposal that both meets and exceeds the solicitations minimum requirements.  

Has worked well for over 20 years.  However, the government must perform  reasonable proposal evaluation during source selection or task order competition to determine proposal compliance. That doesn't require the government to perform proposal engineering design reviews  before award but would encompass patent design errors in a proposal. 

The government cannot rely on the clause if it was negligent in proposal review or knowingly overlooks proposal flaws, errors or deviations. 

We don't use the FAR Order of Precedence clause, as it prescribed for use with the Uniform Contract Format.  USACE  use the MasterFormat for construction and design-build contracts. 

Government doesn't pay extra to obtain the minimum solicitation requirements if the proposed design doesn't  work.  Of course, where contractor meets the minimum solicitation performance or prescriptive requirements and it doesn't work, that generally becomes the government's liability under the Spearin Doctrine.

Desparado, Vern's point about "bait and switch" is more than a theoretical point.  I was involved in just such a situation on the contractor side.  The government wanted a system that had never been produced before and stated the performance the system had to meet.  The contractor proposed a solution that it thought would achieve the government's objectives.  Interestingly, the contractor's proposal was incorporated into the government's version of the contract, but it was not incorporated in the version provided to the contractor.  After award, integrating the various parts of the system turned out not to be feasible and the contractor went in a new direction that it thought would achieve the results the government desired.  However, the government insisted on the use of the original approach, which it insisted was a term of the contract, without thinking whether the contractor's revised approach would work.  Obviously, this lead to a dispute and much bad feelings on the part of both parties.

Thank you Joel and RTF..

Desparado said:

Vern - As always, thank you for your input.  You've given me quite a bit to think about. I'm not ready to change my mind yet, but you've given me food for thought, which I always enjoy.

Consider my chain pulled.

Weno2 - My agency isn't ready for SOO.  Heck, they're barely ready for PBA as evidenced by this conversation.

Desparado,

Vern took you where I was trying to lead you. While you're doing your thinking, I suggest you read "PERFORMANCE-BASED CONTRACTING: INCORPORATING THE PROPOSAL IN THE CONTRACT" in the September 2000 edition of the Nash & Cibinic Report (14 No. 9 Nash & Cibinic Rep. ¶ 47). Here's an excerpt:

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If we are correct in our understanding of the reason for the Government's drive for more performance-based contracting, we believe that incorporating proposal promises in the contract may conflict with the basic rationale. After all, promises in a technical proposal are devised in the most hectic period of a contractor's business--the proposal writing period. It stands to reason, therefore, that proposal promises may not represent the most cost-effective way to meet the Government's needs. If performance-based contracting is really aimed at arriving at the most cost-effective solution, wouldn't it make better sense to write the contract in terms of the original performance requirements and give the contractor the full freedom to perform that was originally contemplated?

Here's an even better quote, from the late Professor John Cibinic in The Nash & Cibinic Report of February 2001, "Postscript II: Proposals and Promises":

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Much of contracting officials' opposition to performance-based contracting seems to be based on the fear that the contractor will pull a “bait and switch” on the Government--i.e., the contractor will “promise the moon” in the precontract phase and then perform using mediocre techniques. This is indeed possible under performance-based contracting. The essence of performance-based contracting is permitting the contractor the option of using a different technique if it would save time or money without affecting the end result. By being able to make such adjustments, the contractor may be able to save a contract from the disaster that could result if only specified processes or procedures were followed. Remember, the aim of a performance-based contract is to obtain the best result. The Government and the contractor should discuss any significant changes in expected processes or procedures and examine their impact on the end result. The Government should not insist that the contractor use expected processes or procedures merely because the contractor would save money by using a different procedure.

I guess I am not a fan of "true" PBA acquisitions then.  I have no problem with letting the contractor (the ones with the most technical knowledge) determine the method for accomplishing the task during the proposal stage, but when a methodology falls into areas where the government might have concerns I am not willing to give them full lattitude to unilaterally change their methods mid-stream.  It's one thing when you're talking about how to accomplish office work or IT projects, but some areas are a bit more sensitive and once an approach is approved it should not be changed unless the new approach is also approved. My goal is to give the contractors the ability to propose their technology/approach up-front and then proceed from there.

Joel - Did I understand you to say that you do construction contracts as PBA?

Desparado said:

Joel - Did I understand you to say that you do construction contracts as PBA?

Desperado, I was referring to design-build construction contracts.  The ideal and industry model would be to use performance oriented or performance criteria to the maximum extent possible.  During the proposal stage, the government would ask for design approach information that it would like to see to substantiate the design-builder's approach to meeting the design criteria and especially design and construction approaches that would discriminate between proposers. 

I mentioned that the proposal becomes part of the contract and how we use an order of precedence clause to hopefully avoid the problems or challenges that Vern and Don were concerned about.  If the proposed features don't meet the performance requirements, the contractor must still meet the minimum solicitation performance requirements. 

Our model approach is generally consistent with the Design-Build Institute of America industry model and philosophy.

On 6/21/2017 at 10:05 AM, Desparado said:

I guess I am not a fan of "true" PBA acquisitions then.  I have no problem with letting the contractor (the ones with the most technical knowledge) determine the method for accomplishing the task during the proposal stage, but when a methodology falls into areas where the government might have concerns I am not willing to give them full lattitude to unilaterally change their methods mid-stream.  It's one thing when you're talking about how to accomplish office work or IT projects, but some areas are a bit more sensitive and once an approach is approved it should not be changed unless the new approach is also approved. My goal is to give the contractors the ability to propose their technology/approach up-front and then proceed from there.

Then don't do a performance-based and acquisition. Use what you said as an explanation.

But then he won't get to code the action as PBA. 

On 6/16/2017 at 5:11 PM, Desparado said:

...technical approach will be evaluated to determine whether it is technically sufficient

I would be very nervous about applying pass/fail on a "technical approach".    

Forest for the Trees question:  what is your motivation for wanting to do pass/fail rather than apply adjectival ratings?  Doesn't that kind of box you in?

REA'n Maker said:

I would be very nervous about applying pass/fail on an "approach".

Why?

Don Mansfield said:

But then he won't get to code the action as PBA. 

From my experience, the fact that  something is not actually a PBA hasn't prevented a single person from coding it as a PBA....

"What gets measured gets done"

Vern Edwards said:

Why?

Because I find it hard to believe that an agency  "would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal" when evaluating an approach.

If I had (for example) a "checklist of required tasks" that had to be met, that would be one thing. But the very fact I've asked for an open-ended "approach" makes me believe how the task gets done is important to me.  I just don't see how you square that circle.

REA,

Here's how it works -- I don't like it; I'm just explaining it. An offeror with an approach we like gets a pass, an offeror with an approach we don't like gets a fail.  

I'm okay with pass/fail in LPTA if we really have some technical measures to assess -- and I'm okay sometimes with "approach" in LPTA -- but sometimes, all I see is technical approach, management approach, and/or staffing approach -- in such a case, I generally prefer tradeoff.

It's funny how we all use the word "approach" is if it referred to some definite idea or thing.

Doesn't it become definite to some degree when it is put in writing and submitted as part of a proposal?

Desparado said:

Doesn't it become definite to some degree when it is put in writing and submitted as part of a proposal?

It's a matter of the law of contracts and of offer and acceptance. An offer is a promise or set of promises. What does the proposal say? Does the "approach" consist of a set of clear and specific promises, or does it just describe what the offeror is thinking of doing? Clear and specific promises are binding. Descriptions unaccompanied by promissory language probably are not. See the definition of promise in Restatement, Second, Contracts § 2:

Quote

e. Illusory promises; mere statements of intention. Words of promise which by their terms make performance entirely optional with the “promisor” whatever may happen, or whatever course of conduct in other respects he may pursue, do not constitute a promise. Although such words are often referred to as forming an illusory promise, they do not fall within the present definition of promise. They may not even manifest any intention on the part of the promisor. Even if a present intention is manifested, the reservation of an option to change that intention means that there can be no promisee who is justified in an expectation of performance.

Quote

f. Opinions and predictions. A promise must be distinguished from a statement of opinion or a mere prediction of future events. The distinction is not usually difficult in the case of an informal gratuitous opinion, since there is often no manifestation of intention to act or refrain from acting or to bring about a result, no expectation of performance and no consideration. The problem is frequently presented, however, whether words of a seller of goods amount to a warranty. Under Uniform Commercial Code § 2-313(2) a statement purporting to be merely the seller's opinion does not create a warranty, but the buyer's reliance on the seller's skill and judgment may create an implied warranty that the goods are fit for a particular purpose under Uniform Commercial Code § 2-315. In any case where an expert opinion is paid for, there is likely to be an implied promise that the expert will act with reasonable care and skill.

A promise often refers to future events which are predicted or assumed rather than promised. Thus a promise to render personal service at a particular future time commonly rests on an assumption that the promisor will be alive and well at that time; a promise to paint a building may similarly rest on an assumption that the building will be in existence. Such cases are the subject of Chapter 11. The promisor may of course promise to answer for harm caused by the failure of the future event to occur; if he does not, such a failure may discharge any duty of performance.

The mere fact that an offeror describes an "approach" in its proposal does not bind the offeror to follow that approach unless the wording clearly communicates a promise to perform in that way and in only that way. Do the Government personnel reading and evaluating the proposal know how to interpret the proposal language from the standpoint of the law of contracts?

Desparado said:

Doesn't it become definite to some degree when it is put in writing and submitted as part of a proposal?

Vern's excellent description above led me to realize that the phrase "to some degree" seems to be contradictory to "definite".  How would something "become definite to some degree"?  😜 No offense, Des...

At any rate, thanks for the lesson, Vern. And thanks for the question, Des. 🤓

Edit: Des, the fact that it took me more than a half hour to write the above post is a reflection of my most excellent  ranking in about the 47 th percentile, Nationally, in "Writing and Language"* on my SAT exam. That was 51 or 52 years ago.   My parents made me re-take it, whereupon my score in that part went down...👨‍🎓

I did score in the 90+% percentile on Math and Reading*. 🤠

* Or whatever the sections and categories were back then.

joel hoffman said:

Edit: Des, the fact that it took me more than a half hour to write the above post is a reflection of my most excellent  ranking in about the 47 th percentile, Nationally, in "Writing and Language"* on my SAT exam. That was 51 or 52 years ago.   My parents made me re-take it, whereupon my score in that part went down...👨‍🎓

I did score in the 90+% percentile on Math and Reading*. 🤠

* Or whatever the sections and categories were back then.

Joel,

Completely off-topic but the SAT sections are basically the same today. The difference(s) include: optional essay, and optional "subject matter" focused SATs.

I know this because my son just took his test(s). Interesting fact: he scored exactly the same as I did more than 30 years ago, only our scores were reversed. He scored my math score in reading, and he scored my reading score in math.

We're still waiting for the results of his subject matter SATs....

On 6/22/2017 at 7:02 PM, Vern Edwards said:

It's funny how we all use the word "approach" is if it referred to some definite idea or thing.

I use "approach" as a reference to an abstract idea or procedure which can (and should!) be altered by experienced reality, hence, my trepidation at applying an LPTA approa...err..."methodology", to a technical approach.  

Believing  that it is in the government's best interests to procure an approach and not a result is nonsensical and self-destructive; any properly evaluated approach  must be conducted in light of its  ability to achieve a result.   Otherwise it would be like (subjectively) evaluating  production methods in lieu of (objectively) testing the end-products.

REA'n - The reason we would prefer LPTA over a Trade-off evaluation methodology is that we aren't willing to pay more for a better approach, or better past performance or anything else.  We just want someone who can come in and provide the service.  We do need to evaluate their key personnel and technical approach (to ensure that they can in fact do the work), but can do that on a pass/fail basis.  We also do our LPTA evaluation by starting with the lowest-priced offer and then stop when we have one that is technically acceptable, which we believe saves valuable time.  Why evaluate a bunch of offers that have no chance of winning?

REA'n Maker said:

Believing  that it is in the government's best interests to hold a contractor to an approach and not a result is nonsensical and self-destructive....

Not necessarily. At lot depends on what you mean by "result."

Suppose that your teenage hiker has gone missing in the Columbia River Gorge. The authorities found her car parked along Hwy 30, but you don't know which trail she took into the extremely rugged terrain. The authorities called off the search after a week, but you want to hire a private party to search. You select Offeror A on the basis of its proposed search method, which you and your advisors think offers the best chance of success. The offeror will not promise to find your daughter. No one would, because no one has any idea where she might be, even whether she actually went hiking. The most any of them are willing to do is search in a particular way. (Scenario based on a real event.)

You decide to negotiate a level-of-effort contract. Isn't that a case in which you would bind the offeror to its approach, but not to a result? The only contractually specified result would be completed conduct of the search in a specified way for a specified number of days. Otherwise, what will be will be.