A new source selection procedure?

Vern Edwards said:

What do you think

Are changes to FAR anticipated to FAR Part 19 and associated statutes for idea?

This approach will get us away from "brochuremanship" -- it shifts the focus from the technical proposal to the offer; indeed, it seems there is no technical proposal.

I like it.  This is even better than the A-E process because this includes price up front.  The only thing I would add is that for Step 5, if we still haven't selected a winner by a certain point, we can form a competitive range with all those with whom we have already negotiated -- I wouldn't want initial lack of success in Step 5 to be a permanent disqualification for award.

I am good with it.

Like @ji20874 said, very similar to AE acquisitions under the Brooks Act with the price presented prior to negotiations. Three things:

1. I think we would end up in a few legal battles on the definition of "most promising offer."
2. Are you suggesting a change to a certain procedure in place (ex. FAR 15) or an additional part to be added?
3. 70% of the work force right now doesn't know how to move between the different FAR procedures (FAR 8/13/14/15) based on requirement as it is. Might not help anything.

Vern Edwards said:

Step 1: Agency solicits offers (promises) and offeror responsibility (FAR Subpart 9.1) information.

Does the solicitation contain the model contract and the offeror fills in the blanks? Or do offerors offer their own contract terms?

I think it’s something sorely needed.  The only thing that needs added, in my opinion, is potential clarifications with offerors if required.  I see full understanding of promises is even more important with this approach.

Don Mansfield said:

Does the solicitation contain the model contract and the offeror fills in the blanks? Or do offerors offer their own contract terms?

Yes. Model contract with blank spaces. Model contract might include a short statement of objectives instead of a SOW. Offerors respond with their own statements of the work they will do to achieve the government's objectives. 

ji20874 said:

This approach will get us away from "brochuremanship" -- it shifts the focus from the technical proposal to the offer; indeed, it seems there is no technical proposal.

That's a key objective. No more essay contest "technical proposals" that are not promissory in nature. Back to contract formation basics: offer (promises) and acceptance. Offer promises to be "commitments to act or refrain from acting in a specified way."

Another objective is to get away from "competitive range" and "meaningful discussions" protest fodder.

Requests for responsibility information to be in the form of questionnaires similar to SF 1403, 1404, etc. series. No more proposal design issues, page limitations, etc. Less expensive for offerors.

formerfed said:

The only thing that needs added, in my opinion, is potential clarifications with offerors if needed.  I see full understanding of promises is even more important with this approach.

No communications with offerors after receipt of offers and prior to selection of the most promising offer (MPO). One goal is to eliminate all protests associated with exchanges after receipt of proposals. That's why the MPO may include weaknesses, significant weaknesses, and even deficiencies. The MPO may be legally unacceptable (may fail to conform to material terms of the solicitation), subject to negotiations.

As for the responsibility determination, the CO will be able to communicate freely with the selected offeror about responsibility during that determination process. No need for clarification/discussion dichotomy. (The GAO does not apply the discussions rules to that process even now.)

Vern Edwards said:

Yes. Model contract with blank spaces. Model contract might include a short statement of objectives instead of a SOW. Offerors respond with their own statements of the work they will do to achieve the government's objectives.

Makes sense.  Too often government PMs are forced to write a SOW.  That forces them, intentionally or not, to pick one specific way of accomplishing the work.  Industry might have better or more efficient suggestions but get handicapped on what they can offer.

Constricting Officer said:

1. I think we would end up in a few legal battles on the definition of "most promising offer."
2. Are you suggesting a change to a certain procedure in place (ex. FAR 15) or an additional part to be added?
3. 70% of the work force right now doesn't know how to move between the different FAR procedures (FAR 8/13/14/15) based on requirement as it is. Might not help anything.

1. No more so than the definition of "best value." There will of course be complaints about the choice of which offer is most promising, but that is unavoidable in any competition.

2. Elimination of the requirement for a competitive range and discussions with all offerors within it will require a statutory amendment and FAR change.

3. Well, training will always be an issue. There is little you can do without people who are well-educated and well-trained. But this process would be simpler than the current process.

Vern Edwards said:

No communications with offerors after receipt of offers and prior to selection of the most promising offer (MPO). One goal is to eliminate all protests associated with exchanges after receipt of proposals. That's why the MPO may include weaknesses, significant weaknesses, and even deficiencies. The MPO may be legally unacceptable (may fail to conform to material terms of the solicitation), subject to negotiations.

Ah, I see.  That means offerors need to be extra careful and ensure their response is crystal clear and unambiguous.

This process would raise the specter of referral for a certificate of competency if a small business that submits the most promising offer is found to be nonresponsible. But concerns about that can be alleviated through the use of well-crafted special responsibility standards, which the SBA will honor. I doubt it would be possible to persuade Congress to  change the COC program.

formerfed said:

Ah, I see.  That means offerors need to be extra careful and ensure their response is crystal clear and unambiguous.

Yes, it would mean that. But more of them might do well if we get rid of the essay-writing contests.

Vern Edwards said:

This process would raise the specter of referral for a certificate of competency if a small business that submits the most promising offer is found to be nonresponsible. But concerns about that can be alleviated through the use of well-crafted special responsibility standards, which the SBA will honor. I doubt it would be possible to persuade Congress to  change the COC program.

And the basis for my question. 

I think the COC process should change at the same time.  To what?  Leave determination of responsibility in hands of CO with a SB right of "appeal" to SBA.   The hope would be that a CO would do due diligence in a nonresponsibilty determination rather simply referring for a COC.  It was my experience and believe the situation still exists today that the COC process is avoided at the expense of addressing nonresonibilty matters as they should be.  Then there is SBA who handles COC's in a cookie cutter way.  The hope would be that an appeal process would better support both diligent CO's and SB rights when diligence is not practiced.

Change of the COC process or not I like the idea.

Culham: Congress is not going to change the COC process. Ours is a very imperfect world. Baby steps.

I'm okay with you not liking the idea if that's your only issue.

I like the idea. Someone should pilot it under FAR 16.505 and gather data.

Just now, Don Mansfield said:

I like the idea. Someone should pilot it under FAR 16.505 and gather data.

Yes, it could be done under the "fair opportunity" process. (Some agencies are determining a competitive range and conducting Part 15 discussions!) And I don't think you would need the responsibility determination.

Vern Edwards said:

Culham: Congress is not going to change the COC process. Ours is a very imperfect world. Baby steps.

I'm okay with you not liking the idea if that's your only issue.

Confused my response I guess so I will shorten it with a quote from my post "I like the idea"

Don Mansfield said:

I like the idea. Someone should pilot it under FAR 16.505 and gather data.

Or even FAR 13 procedures

C Culham said:

Confused my response I guess so I will shorten it with a quote from my post "I like the idea"

Sorry I confused your response. I am getting old.

I'm glad you like the idea.

Vern Edwards said:

Yes, it could be done under the "fair opportunity" process. (Some agencies are determining a competitive range and conducting Part 15 discussions!) And I don't think you would need the responsibility determination.

https://www.gao.gov/products/b-401438 as reference to support the idea of trying the idea under fair opportunity.

I like it.

...And it's simple enough that I'd like to genuinely encourage multiple offers from an offeror at least as much as is done now in the standard commercial instructions, as a means of generating better industry solutions.

I think that it would be good in the event that your most promising offeror and/or second ranked offeror  won’t agree on what the government feels is a fair and reasonable price or other critical terms/features to state that the government may move on to the third most promising

Id like to see (N’s) opinion.  But from my personal experience and from several conversations with friends and acquaintances in the construction contracting arena, they often don’t or can’t offer their best pricing initially. If they know that it is unlikely that the government would move on to other firms, they may not be motivated to negotiate the best deal for the both parties.

joel hoffman said:

I think that it would be good in the event that your most promising offeror and/or second ranked offeror  won’t agree on what the government feels is a fair and reasonable price or other critical terms/features to state that the government may move on to the third most promising

Id like to see (N’s) opinion.  But from my personal experience and from several conversations with friends and acquaintances in the construction contracting arena, they often don’t or can’t offer their best pricing initially. If they know that it is unlikely that the government would move on to other firms, they may not be motivated to negotiate the best deal for the both parties.

thoughts that enhances  Don's idea of piloting through 16.505.  Especially advantageous if there is an existing multiple award IDIQ out there that has such vague fair opportunity procedures that a couple task orders could be piloted to see how they settle with ones using a technique that mirrors the current FAR part 15 as Vern notes.

Vern Edwards said:

Step 2: Agency evaluates, compares, and ranks all offers and identifies "most promising offer" (based on nonprice and price promises) without discussions and regardless of any weaknesses, significant weaknesses, or deficiencies.

Compare each offeror and their offer to each other?

Jamaal Valentine said:

Compare each offeror and their offer to each other?

Offers (promises) are compared to each other and ranked on the basis of how relatively "promising" (advantageous) they are.

Offerors are not compared to each other. Instead, the CO determines whether the offeror that submitted the most promising offer (MPO) is responsible, in accordance with FAR Subpart 9.1. Pass or fail.

If the CO determines that the offeror that submitted the MPO is responsible, then the CO negotiates with it to reach final agreement on nonprice and price terms.

There is no competitive range determination; no "discussions" are conducted with the other offerors; and the CO makes no determination of the other offerors' responsibility unless negotiations with the first offeror fail, in which case the CO goes to the offeror that submitted the second-ranked MPO.

I like anything that reduces the evaluation and documentation burden or brings us closer to the concepts for the acquisition of architect-engineer services.

The government struggles to adequately document their evaluation, comparison, and ranking of all offers. In my experience, the evaluation team can easily select a offeror and offer they like or deem suitable, but they struggle documenting the rationale - especially priced tradeoffs. The burden increases with number of offers received.

How can we further simplify documenting selection of the most promising offer? That is where the government seems to spend a lot of time with varying degrees of success.

The DHS Procurement Innovation Lab (PIL) teaches something that overlaps Vern's idea --the technique is called "Select Best-Suited, then Negotiate" -- it has been used in fair opportunity considerations.  A procurement where it was used was protested, and the GAO wrote,

Quote

Based on the evaluation results, the contracting officer (CO) and source selection evaluation board (SSEB) chairperson made a best-suited contractor determination, identifying NGSC as the apparent successful offeror.  Consistent with the terms of the solicitation, which provide that after the agency had selected the apparent successful offeror, it could engage in communication solely with this contractor to address any remaining issues and to finalize a task order, the agency held negotiations with NGSC.
  *     *     *
The protest is denied.
B-415514, Leidos, Jan. 18, 2018

Here is the pertinent text from that solicitation--

Quote

6.3.4 Exchanges with Best-Suited Contractor
Once the Government determines the contractor that is best-suited (i.e., the apparent successful offeror). the government reserves the right to communicate with only that contractor to address any remaining issues, if necessary, and finalize a task order with the contractor.  These issues may include technical and price.  If the parties cannot successfully address any remaining issues, as determined pertinent at the sole discretion of the government, the government reserves the right to communicate with the next best-suited contractor based on the original analysis and address any remaining issues.

This technique did involve a technical proposal to help select the best-suited offeror, but Vern's idea goes further and drops the whole technical proposal.

@ji20874  I started to post that yesterday and received a call.  I forgot to get back to it.  Just another great example of what PIL is doing.  Not only does it assemble these concepts but supplies coaches to help people do them.

ji20874 said:

The DHS Procurement Innovation Lab (PIL) teaches something that overlaps Vern's idea --the technique is called "Select Best-Suited, then Negotiate" -- it has been used in fair opportunity considerations... B-415514, Leidos, Jan. 18, 2018.

I must say that the process described in that procurement is very, very different from the process that I described in my opening post. It seems to have been much more complex. The main similarity is one-on-one negotiations with the selectee.

The acquisition was for a new "biometric analysis system" and appears to have been worth about $100 million. Here is how the GAO described the "fair opportunity process" under what a GWAC:

Quote

The RFP provided for a two-step evaluation process addressing the following six factors, in descending order of importance: (1) oral presentation; (2) system development and execution; (3) resource and analysis; (4) staffing; (5) past performance; and (6) price.1 Id. at 156-159. Step one consisted of the evaluation of oral presentations. Id. at 145. Following the evaluation of oral presentations, the agency would advise offerors as to whether it was recommended that they submit written proposals. Id. at 145. Step two was to include the evaluation of written proposals under the remaining five factors. Id. at 146. As relevant here, the RFP provided that oral presentations would be evaluated based on responses to questions provided in advance, responses to on-the-spot questions, and, of lesser importance, reference materials submitted by offerors. Id. at 156.

Under the system development and execution factor, offerors were required to submit a performance work statement (PWS), including proposed tasks and deliverables, to address the baseline performance objectives (BPO). Id. at 148. Offerors were also required to provide: (1) a complete and comprehensive schedule that incorporated activities and milestones needed for the design, development, and implementation of increment 1, increment 2,2 and the option periods; (2) the offeror’s management approach; (3) a quality assurance surveillance plan; (4) and a bill of materials (BOM). Id.

That's not the entire description.

The agency announced the task order opportunity on February 19, 2017, received four oral presentations followed by three written proposals, and issued a task order on September 28. So the "fair opportunity" process took seven months. It appears that much of the material submitted by "offerors" to the agency was the typical technical proposal stuff. It's not clear how much was promissory and how much was merely intentional. It is noteworthy that the evaluated price of the winner was more than $100 million less than the evaluated price of the protester, which may have had something to do with the decision.

The process described in the first of the two paragraphs that I quoted from the GAO decision is much, much more complex than what I have in mind,. Moreover, the decision says that the agency conducted "discussions" with offerors and asked for "final proposal revisions." That sounds like a FAR Part 15 source selection instead of a FAR 16.505 "fair opportunity" process.

Instead of going through all of that rigmarole to provide a fair opportunity to be considered I would have selected a contractor for negotiation based on an oral presentation of the system design approach, past performance on biometric system development, and a price quotation. I would then have asked the selectee for an offer including a SOW, a System Performance Specification, and a price—and then negotiated one-on-one to agreement. If I couldn't reach agreement with that contractor, I would have gone to the second-ranked.

It is not my intention to criticize the agency that conducted the acquisition. I'm sure that they thought their process was just fine and worked out well. Their program is still underway. I think it missed two target dates.

My intention is to make it clear to anyone who reads the protest decision that what is described therein is nothing like the process that I have in mind.

Quote

The agency announced the task order opportunity on February 19, 2017, received four oral presentations followed by three written proposals, and issued a task order on September 28. So the "fair opportunity" process took seven months. It appears that much of the material submitted by "offerors" to the agency was the typical technical proposal stuff. It's not clear how much was promissory and how much was merely intentional. It is noteworthy that theevaluated price of the winner was more than $100 million less than the evaluated price of the protester, which may have had something to do with the decision.

This is a great example of why different processes are needed for the government.  Seven months using a “streamlined approach” for just placing an order!  We don’t know if this example is what the PIL had in mind or whether it’s the way the CO decided to apply the concept in the way he/she wanted.  It’s no wonder many of the small, innovative high tech companies pass on doing business with the government.  

Vern’s approach and similar type thinking is what our country needs.  But even then, we need people and organizations that can take these concepts and implement them.

Vern, You are right that the process I shared is not the same as what you described -- but I made a point of saying so.  The overlap is the negotiations with one offeror at a time until success.  And you are right that the cited procurement took too long, but it was still a huge victory just to do the negotiations with the best suited (or, in your words, the most promising) offeror.  I observed the process from a distance and was dismayed at the soul-sucking crushing review burden the bureaucracy imposed on that procurement.  Thankfully, the one attorney who worked with that team was willing to try the technique, and he won at the GAO.

formerfed, Please don't criticize the contracting officer for taking seven months -- it would have taken far longer if "normal" practices had been used.  It was a small step in the right direction, and I applaud it for that.  Hopefully, future acquisitions will do much better.  I am glad they were able to do negotiations (both technical and price) with the best suited offeror without forming a competitive range, inviting revised proposals, and so forth.

ji20874 said:

...but I made a point of saying so.

You did, ji.  Please don't take my comments as criticism. Seven months is a lot better than others have done. I have seen other task order competitions that did the whole Part 15 nine yards, take a year, then loose the protest!

Some of you may not know, or may have forgotten, that both DOD and NASA once used a source selection procedure that permitted one-on-one negotiations with a single selectee (or with multiple selectees) prior to contract award. The procedure was called "Four-Step Source Selection." The DOD version of the procedure was described in DFARS 215.613-70 (1997).

The coverage was too long to quote here in its entirety. However:

Step One entailed evaluation of technical proposals and limited discussions.

Step Two entailed evaluate of cost proposals and establishment of a competitive range.

Step Three entailed discussions with offerors in the competitive range, "best and final offers," and a source selection decision of one or multiple offerors.

The regulation described Step Four as follows:

Quote

(i) Step four-final negotiations and contract award.

  (1) The sequence of step four (single selectee)-

    (i) Negotiate the final contract price, terms, and conditions; and

    (ii) Award the contract.

  (2) The sequence of step four (multiple selectees)-

    (i) Negotiate tentative final contract terms and conditions;

    (ii) Select the best source; and

    (iii) Award.

  (3) In conducting step four-

    (i) Complete negotiations and award the contract within the time prescribed by the source selection authority;

    (ii) Terminate negotiations and make a new source selection decision if the condition in paragraph (i)(3)(i) cannot be met;

    (iii) Do not permit changes in the Government's requirements or the offeror's proposal which would affect the source selection decision;                and 

    (iv) Follow the procedures in FAR 15.606 if changes in the Government's requirements are necessary.

DFARS 215.613-70(b) stated:

Quote

(b) Applicability. Four-step source selection procedures may be used for-

(1) Competitively negotiated research and development acquisitions with an estimated value of $2 million or more; or

(2) Other acquisitions as permitted by department/agency regulations, except those in paragraph (c) of this subsection.

In 1998, DOD deleted the DFARS coverage of the Four-Step Source Selection Procedures when it implemented the 1997 FAR Part 15 Rewrite, with the following explanation:

Quote

The Director of Defense Procurement has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to revise procedures pertaining to contracting by negotiation. These amendments conform with amendments made to the Federal Acquisition Regulation (FAR) in Federal Acquisition Circular 97-02, which was published in the Federal Register on September 30, 1997...

Guidance on the four-step source selection process and the alternate source selection process have been removed, as the new guidance at FAR 15.101, Best value continuum, clearly allows such source selection processes.

See 62 Fed. Reg. 55040-01, Oct. 14, 1998.

Four-Step was first used by NASA in the 1970s and was adopted by DOD for R&D acquisitions in 1976. Its use was later authorized for other than R&D acquisitions, with limitations. It was initially mandatory for R&D, but later made optional.

An extensive early discussion of Four-Step can be found in the GAO decision In the Matter of The Airesearch Manufacturing Company of Arizona, 56 Comp. Gen. 989, B-188369, 77-2 CPD ¶ 229, Sept. 27, 1977, which can be found at https://www.gao.gov/products/b-188369.

A recent discussion of Four-Step can be found in an article in the May 2019 issue of Contract Management magazine entitled, "Raising the Dead: Resurrecting the Four-Step Source Selection Procedures," by John Krieger. It mentions the use of a similar procedure by the Defense Health Service when conducting an acquisition under FAR Subpart 8.4. DHA's RFQ included the following language, as quoted by the Court of Federal Claims:

Quote

The contracting officer will award a BPA call to the contractor submitting the highest rated quote proposing an appropriate mix of labor for the required level of effort at a fair and reasonable price. If the contractor submitting the highest rated quote does not propose an appropriate mix of labor for the required effort at a fair and reasonable price, the contracting officer may obtain additional information from, and negotiate with, that contractor to improve the terms of the deal reflected in its quote.

Although the agency lost protests of that acquisition on other grounds, neither the GAO nor the Court of Federal Claims expressed any concern about the procedure used. There was no protest against the use of the procedure.

It appears to me that there is no bar against conducting one-on-one negotiations with a selectee prior to award under FAR 8.4 or 16.505. If you plan to use it, be sure to explain what you are going to do in your solicitation or "fair opportunity" announcement.

However, I think that if a CO is conducting an acquisition under FAR Part 15 and plans to conduct one-on-one negotiations with the selectee prior to award, he or she must first comply with the rules in FAR 15.306 pertaining to the establishment of a competitive range and the conduct of discussions with all offerors within the range. I think those rules and the discussions law behind them, 10 USC 2305(b)(4)(A) and 41 USC 3703(a), have outlived their usefulness.

The procedure that I proposed in my opening post for use under Part 15 requires elimination of the discussions law requirement for a competitive range and discussions with all offerors within it. I have written an article for June issue The Nash & Cibinic Report, which is now available. The article is entitled, "Repeal the Discussions Law: It's Preventing Discussions." I will provide it to Bob for further publication at Wifcon, probably some time next week.

Four-Step is NOT a streamlining technique and was not adopted for streamlining purposes. It was adopted to prevent what were called "technical transfusion" and "technical leveling" in R&D. The only part of it that interests me is one-on-one negotiations with a selectee prior to award.

ji20874 said:

formerfed, Please don't criticize the contracting officer for taking seven months -- it would have taken far longer if "normal" practices had been used.  It was a small step in the right direction, and I applaud it for that.  Hopefully, future acquisitions will do much better.  I am glad they were able to do negotiations (both technical and price) with the best suited offeror without forming a competitive range, inviting revised proposals, and so forth.

I’m not criticizing this or any contracting officer for long award times. I know as individuals they can only do so much.  But we hear all the time agency senior management say “this procurement is really critical to our mission.  It’s of upmost importance and the highest priority.”  So the CO and usually PM a work fast and hard to get the solicitation ready.  Then policy and legal reviews take weeks to be done.  Proposals end up received later.  Then the CO tries and gets a TEP going.  But many of the needed technical people can’t meet right away for various reasons.  When they are finally assembled no one wants to be sequestered because of other work conflicts.  Proposals get evaluated individually in their own work areas.  A few weeks later after all the other meetings, travel, and other priorities are over, trying to get everyone together for consensus again takes a very long time.  If there are orals or discussions, that adds more time.  Finally an award for this high priority contract gets awarded many months later.

My criticism is about agency culture concerning acquisitions.  If senior management claims a project is a high priority, show it. Make things happen accordingly.

On 6/4/2021 at 1:12 PM, formerfed said:

My criticism is about agency culture concerning acquisitions.  If senior management claims a project is a high priority, show it. Make things happen accordingly.

Yes, but...

Source selection is a contracting process, and one of our problems is that not enough COs lack organizational stature. They are not experts. They are not masters of concepts, principles, rules, and practice. They do not command respect as professionals.

Few managers will postpone a meeting because the CO cannot be there. Few seek out the CO for acquisition advice beyond its administrative aspects. Few are in awe of the CO's knowledge and ability to strategize.

Maybe that has something to do with it.

We did it to ourselves.

Where are today's Gordon Wade Rules?

[Withdrawn section]

2. Changed Assumptions.  What mechanism incorporates the most promising offer into the task order?  What mechanism does the USG then rely on to adjust assumptions post-award?  A deliverable plan with all the details is needed immediately (first 90 days) post-award, I think.  The outline of this deliverable should be sampled of all offerors pre-award, and required by SOW to be fully developed by the awardee post-award.  Re-submittals of this deliverable would be needed at some interval throughout life of the task order, adjusting for newly learned assumptions.  Any and all change orders would have to flow from the USG's acceptance of that re-submittal.  A special clause could handle this, for purposes of the pilot program.  It would have to explicitly state it takes precedence over the SOW, to prevent poorly worded SOWs outweighing the clause (FAR 52.215-8).

If it sounds like I am soliciting technical proposals pre-award at number 2 above, please help me understand what an offer should look like if not a promise to deliver?

Vern Edwards said:

Maybe that has something to do with it.

We did it to ourselves.

Where are today's Gordon Wade Rules?

I will go so far to say that has a lot to do with it.  Our respect seemed to start going downhill many years ago.  It’s like a snowball that picks up size and speed rolling downhill.  I largely blame the long standing and widespread need for 1102s.  Quick promotions without having to demonstrate competence is one culprit.  Another is the large demand among agencies competing for reasonably sharp individuals.

@WifWaf

WifWaf said:

Hoping I can build on the original post and subsequent FAR Section 16.505 idea here.  In correcting the Competitive Acquisition procedures that currently only allow for Best Value, we should not over-correct.  A Fair Opportunity pilot program would have to be careful not to remove supposed rigmarole that is actually a line of defense originally designed to protect the taxpayer from industry greed.

I assume we are talking about acquisitions pursuant to FAR 16.505. If so, what "pilot program"? Why do you think we need a "pilot program"? Do you think we need one to develop a standard procedure for everyone to copy?

FAR 16.505 does not prescribe any particular procedure for evaluating task order proposals, and there is nothing particularly complicated about what I described in the opening post. Competent COs should be able to just do it. COs who need a cut-and-paste model probably should not try what I proposed. 

WifWaf said:

Organizational Conflicts of Interest.  The original post did not mention the provisions around OCIs specifically as whether those would be eliminated, but I wanted to get clarification on that since FAR Subparts 9.1 and 9.2 were mentioned.  NASA has good OCI provisions for incorporating mitigation plans into the contract post-award.

Asking each offeror to prepare a SOW as part of their offer in order to describe the work they promise to do if awarded a contract or task order would not give rise to an organizational conflict of interest (OCI). That procedure is not new. It has been in use now for more than 20 years. See FAR 37.602(a). An OCI arises when a particular company prepares a SOW that the government plans to use in a solicitation of offers, not when offerors prepare a SOW when they compete for a contract or order. See FAR 9.505-2.

WifWaf said:

Changed Assumptions.  What mechanism incorporates the most promising offer into the task order?  What mechanism does the USG then rely on to adjust assumptions post-award?  A deliverable plan with all the details is needed immediately (first 90 days) post-award, I think.  The outline of this deliverable should be sampled of all offerors pre-award, and required by SOW to be fully developed by the awardee post-award.  Re-submittals of this deliverable would be needed at some interval throughout life of the task order, adjusting for newly learned assumptions.  Any and all change orders would have to flow from the USG's acceptance of that re-submittal.  A special clause could handle this, for purposes of the pilot program.  It would have to explicitly state it takes precedence over the SOW, to prevent poorly worded SOWs outweighing the clause (FAR 52.215-8).

Are you familiar with the term "model contract"? Offerors responding to a "fair opportunity" would fill in blanks left in a model task order to be completed by the competing contractors. For instance, a statement of objectives (SOO) in the model task order would be replaced in the actual task order by the SOW negotiated by the Government and the selected contractor.

If, in addition to a SOW, you want a performance plan prepared after issuance of the task order, say so in the "fair opportunity" announcement (RFTOP) and include that requirement in the task order. If you want the plan revised from time to time after issuance of the task order, include that requirement in the task order, too.

[Withdrawn section]

On 6/5/2021 at 6:58 AM, Vern Edwards said:

If, in addition to a SOW, you want a performance plan prepared after issuance of the task order, say so in the "fair opportunity" announcement (RFTOP) and include that requirement in the task order.

I fully support the use of PBSA to do this and would suggest, here again, that the solicitation provide the negotiator the subject matter he/she needs to get the best deal for the USG.  In the model contract at Section C, provide a draft Requirements Summary as a "highlights version" of the draft QASP.  The model should provide the USG's most important performance measures and allow offerors to fill in the frequency and methods and incentives (if applicable), as well as add any new measures they feel must accompany their PWS as written.

WifWaf said:

My sentiment is this, as stated in your referenced Subsection: "When contractor assistance is necessary, the contractor might often be in a position to favor its own products or capabilities." **

WifWaf said:

** But I think this deserves another look.  FAR 9.505-2(b) imposes restrictions on contractor-written SOWs "for use in a competitive acquisition" - I did not find case law using this phrase on Wifcon's Protests page for OCIs.  I do not know if the distinction you make has been decided.  "Competitive Acquisition" is defined and made distinct from sole/single source acquisitions in FAR Part 15, not Part 2 or 9, so I do not know exactly what the Part 9 drafters meant by it.

@WifWafYou do not understand OCIs.

No organizational conflict of interest is created by asking each offeror  responding to a solicitation to propose a statement of the work they promise to perform, n__o more than asking them to describe their proposed approach, proposed plan, proposed process, proposed procedure, proposed design, or proposed product.

No OCI.

None.

Please do not come to this thread to learn about OCIs. If you want to discuss OCIs, please start your own thread in the Beginners Forum. Before you do, read up on OCIs. You mentioned some NASA material. NASA has a guide. I don't think you've read it. If you did, I don't think you understood it. Try again. Start with Chapter 1.

https://www.hq.nasa.gov/office/procurement/regs/guides/OCI_Guide.pdf

We could call it  the Kinda' Sorta' Part 36 Without Ranking of Offerors Procedure.  I like it.

Now the cynical thoughts creep in, namely the above reference to the Part 16 FO process:

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Some agencies are determining a competitive range and conducting Part 15 discussions!

Maybe I've been doing this too long, but 1102s seem to have a pathological need to convert every competition to a Part 15.   As a consultant, I saw an entire agency operating under the belief that Part 16 FO competitions had to be conducted in accordance with Part 15.  When my team inquired why, the answer was  a collective "I dunno'; we've always done it that way."

Even more recently as a Fed (again...) I had a Branch Chief effectively convert a Part 36 source selection into an advisory multi-step Part 15 out of pure ignorance and hubris (he has been at the agency for decades and yet I was explaining the agency FAR supplement to him after I was there for only 8 months).  Which is to say, I'm not hopeful that the contracting workforce at ANY level can substitute good business sense for rote procedure.  There are simply too many people in high places who stopped learning decades ago and who are also convinced that they are God's Gift to Federal Contracting.

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The multiple award preference policy states that every awardee must be given a “fair opportunity” to be considered for the award of each task order in excess of $2,500. The proposed rule [16.505] leaves the choice of evaluation factors to the CO's discretion. The CO need not publish a synopsis, solicit written proposals, or conduct discussions with awardees prior to the award of a task order, proposed FAR 16.505(b)(1). The rule precludes protests against task order award decisions. Agencies must appoint task order “ombudsmen” to handle complaints from awardees about task order selections, proposed FAR 16.505(b)(4).

Notwithstanding these liberal policies, it is not difficult to imagine Government procurement officials conducting a mini-source selection before the issuance of each task order. Some will almost certainly consider a more formal procedure to be necessary to ensure fairness. One can easily imagine requests for proposed task order “performance” plans or “management” plans, especially for task orders of significant dollar value. One can also imagine requests for extensive cost breakdowns, certified cost or pricing data, and proposal audits. If too complex and demanding, such procedures would significantly increase an agency's administrative costs, extend the lead time associated with task order issuance, and force awardees to incur significant costs in the preparation and negotiation of task order proposals.

Published in June 1995.

Somewhat off topic, but I’m wondering how much of the recent “prize” and OTA competitions are done to avoid Full and Open procedures?

On 6/4/2021 at 9:01 AM, Vern Edwards said:

Four-Step is NOT a streamlining technique and was not adopted for streamlining purposes. It was adopted to prevent what were called "technical transfusion" and "technical leveling" in R&D. The only part of it that interests me is one-on-one negotiations with a selectee prior to award.

Vern, upon reading your new topic concerning Four Step (“Does anyone remember Four Step Source Selection?”), I found an article from March 1978 by Dr. Norman Waks of the Mitre Corporation.

Dr. Waks criticized the approach and particularly the avoidance of communications with all but a selectee prior to award.

https://apps.dtic.mil/sti/pdfs/ADA053963.pdf

EDIT: Of course, the method was devised in the context of the contracting methods otherwise available at the time to address the four or so cited prevalent problems, including the low bid/lowest acceptable price approach on complex acquisitions.

@joel hoffman

joel hoffman said:

Dr. Waks criticized the approach and particularly the avoidance of communications with all but a selectee prior to award.

Yes. And see Smith, "The New "Four Step" Source Selection Procedure: Is the Solution Worse than the Problem?" Public Contract Law Journal, June 1980. (No public link available.)

See also, "To the Administrator, National Aeronautics and Space Administration," 51 Comp. Gen. 621, GAO B-173677, 1972 CPD ¶ 44 (March 31, 1972). https://www.gao.gov/products/b-173677-2

Almost all concerns and complaints about "Four Step" were about the limitations on discussions, the thought being that discussions improved the quality of competition and, thus, the contract outcome.

I do not believe that there is any evidence that discussions with all offerors in a competitive range have improved performance outcomes. No one has ever produced any such evidence, and I do not believe that anecdotal reports constitute evidence on which policy should be based.

According to Waks:

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The predictably diminished program results in terms of performance and costliness [due to Four Step] both spring from the same source. And that is the requirement under “four-step”, as an admittedly basic difference between it and the former procedure , of strictly limited communication between the buyer (the Government) and the potential sellers (the industrial bidders) during the proceeding, in order to help assure the equitableness of the selection. Yet there should be maximum communication during this period, in order to assure that what the respective bidders are offering will in fact satisfy the Government’s needs and preferences. That is, given the many uncertainties that ordinarily exist at this “handover ” point in an advanced technological program — even great uncertainty at times about whether the program can be accomplished in a timely manner at all it is absolutely mandatory that not only maximum clarifying discussion of the need and offers take place , which “four-step ” still permits to a degree , but, since the offers are really proposed “solutions ” to the Government’s “ problem ”, both maximum exploration of the validity of each and the relative degree of fit between the two.

Anyone who thinks there is "maximum communication"—free, frank, and full—between the government and all offerors in the competitive range during source selection discussions has not participated in very many such discussions. Besides, in most cases the weaknesses and deficiencies in "approaches" are not flaws in promises (offers), but in descriptive essays and technical presentations. Source selection decisions are not performance outcomes; they are the outcomes of sales pitch contests. And according to Waks:

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To the degree that the new Government-wide process for acquiring major systems that is mandated b y 0MB Circular A- 109 of April 1976 is implemented by parallel developments and other “hardware ” type continuous competitions of results, rather than by ad hoc, winner-take-all “paper ” competitions of promises, some of the above [his] concerns disappear to a degree.

What has happened since 1962 and Pub.L. 87-653 is that the discussions statute, regulations, and bid protest case law have made agencies reluctant to conduct really substantive  discussions, not even under the rules in FAR 15.306(d), which is too bad, because talk is important to achievement of a meeting of minds. When agencies do hold discussions, usually what gets discussed are "weaknesses" and "deficiencies" in what is little more than an essay test response. That's why discussions with offerors in a competitive range, which once were mandatory, are now optional.

I think the simple fact is that negotiating non-price terms with multiple contestants is just too complicated and difficult. In fact, it's weird.

Pick somebody, and then get on with it.

Vern Edwards said:

Yes. And see Smith, "https://www.gao.gov/products/b-173677-2, Public Contract Law Journal, June 1980. (No public link available.)

See also, "To the Administrator, National Aeronautics and Space Administration," 51 Comp. Gen. 621, GAO B-173677, 1972 CPD ¶ 44 (March 31, 1972). https://www.gao.gov/products/b-173677-2

I’d like to personally thank GAO for the Decision upholding the award to North American Rockwell, which allowed my Father-in-Law to go back to work at Stennis Space Center (formerly, Mississippi Test Facility) He and many other Rockwell employees had been laid off for several years between the end of the Apollo flights and the Space Shuttle Program. 🤠

I edited my earlier post to note the context of the establishment of the Four Step Approach and the then available/prevalent methods and cited problems. It was interesting to read about technical transfusion and what amounts to technical leveling, which the FAR 15 source selection prohibited when published. The ban on technical leveling was eliminated in the 1996-1997 FAR 15 rewrite along with adding emphasis on bargaining for better performance.

Unfortunately, the contracting community that I was associated with was still hung up on the cautious approach to conducting discussions based upon the original FAR language rather than the later emphasis on more meaningful discussions and bargaining. They passed that down to the next generation of KO’s.

For instance, I had numerous KO’s tell me in private discussions as well as at public meetings that their District(s)  policies prevented them from discussing undesirable aspects of design-build proposals which otherwise met the minimum RFP requirements.

As a result there have been numerous design-build projects knowingly awarded and often built with less than satisfactory architectural or functional features.

I even had to debate my KO instructors in our USACE Design-Build Class team in order to change their instructional content because they were so ingrained with cautionary approaches to conducting discussions.

The most egregious example was a one-star headquarters command facility at an Army Installation with corrugated metal siding because it was going to be attached to an existing hangar. The Contract was awarded seven million dollars below the (unpublished) contract cost limit and the District thought they could issue user requested changes after award to revise the architecture and other functional features. But the Army pulled the extra seven million dollars to put on underfunded projects elsewhere.

This Command facility was located across the street from a brand new Taj Mahal, three or four star Army Command facility!!!! The District and it’s upper Division level offices went ballistic and blamed the USACE Program management team, including me, for their predicament.

I asked them if they brought up the architectural debacle and other functional objections during discussions and they said no, because it met the minimum RFP requirements. They knew nothing about bargaining for better performance. They would simply bombard the design-builders with government requested changes after award.

It wasn’t due to problems with the design-build method, the Program policy and guidance or the model RFP that they were using. It was due to their lack of understanding of how to use a performance oriented design-build approach. In fact, their office of counsel refused to allow them to publish the CCL and required them to state in the RFP that the price and non-price factors were of equal importance. That effectively made price the most important factor!

The USACE-wide Army MCP Program level policy was to identify the budget limit without requiring the offerors to approach the limit, plus price was significantly less important than obtaining full scope and the design and construction quality, within the identified budget limit.

The District project team had been so concerned during the RFP development that the budget was insufficient to obtain full scope that they overlooked stressing quality. They had no idea that this method could obtain both full scope and high quality within budget.

There were several other examples across the Districts during this massive Army design-build program of ugly or out of place architecture in new facilities,  for the same reason, learned during after award reviews- “We aren’t allowed to discuss less than excellent design features if they meet minimum RFP conformance.”

SHEESH!!!!

Note in the above example that the RFP did not cite or require corrugated metal siding. The USACE MILCON Program, model RFP policy was for the Project development teams to describe the architectural theme in performance terms without dictating specific design materials and details. This particular team simply said to design it to be compatible with the hangar that it was going to be attached or adjacent to.

Imagine a large Army Command headquarters facility with corrugated metal siding…

Oh - the RFP technical lead was a (young) ARCHITECT and the Project Manager was an engineer,  re-assigned to Project Management from Construction Division… This was that District Project development team’s first experience with performance based/oriented design-build. They were used to using bridging D-B (“draw-build”) with typical results of over budget awards. 

Compound that with a Chief of Office of Counsel with archaic, iron-fisted policies of refusing to identify the budget limitation and insisting that price and quality are of equal importance - both contrary to the USACE Army MILCN Transformation Program policy and guidance.

Top it off with no clue how to conduct discussions to bargain for better performance- for fear of technical leveling (???)

Vern - I'd offer that a variation of the approach you proposed at the beginning of this thread is currently in use by certain pockets of the Navy for professional support services, utilizing FAR 16.505 procedures.  Interested in your thoughts.  

BLUF

• This most suitable/most advantageous source selection methodology makes it easier to proceed with a “competitive range” determination
• If one offeror is a clear technical favorite the Government has a mechanism/process to simply remove the others from consideration and negotiate with that most advantageous offeror
• If the offers are equal or close the Government keeps the flexibility to conduct a cost/technical trade-off

I believe this methodology has a lot of the benefits of the HTRFRP model while still allowing the flexibility to conduct a cost/technical tradeoff if it is warranted.  

Relevant Section M provisions below: 

M-1 BASIS OF AWARD

(a) The Government intends to award a task order to the responsible Offeror whose proposal conforms to the FOPR’s requirements and is determined to be the Most Advantageous to the Government based upon an integrated assessment of the evaluation factors described further below and a comparative assessment of the proposals.

(b) This fair opportunity selection begins with the evaluation of the Small Business Subcontracting Plan (Factor 1). An offer must be evaluated as “Acceptable” (GO) in this factor in order to be further evaluated for Key Personnel Resumes and Past Performance factors (Factors 2 and 3, respectively). Next, the evaluation team will evaluate each offeror's proposal for the past performance and the technical factor (Factors 2 and 3). Next, the evaluation team will perform a comparative analysis of proposals for each Factor 2 and 3 (rather than assigning an adjectival rating for these Factors). Each proposal will be comparatively evaluated against all other proposals in each respective factor. One proposal will be deemed Most Suitable in each factor. The Government reserves the right to determine more than one proposal as "Most Suitable" under Factors 2 and 3 where the Offeror's findings are determined to be essentially equal. “Most Suitable” means the Offeror providing the highest likelihood of success to the Government in a factor. The Offeror(s) deemed Most Suitable will subsequently be evaluated for cost realism under the cost/price factor (Factor 4). The Government will determine which Offeror is Most Advantageous, based on the results of the comparative analyses and cost realism analysis. The Most Advantageous to the Government is the Offeror found to be Most Suitable for award in at least one factor and, using the evaluated factor findings, is comparatively evaluated to be the superior Offeror. The comparative analysis is, in and of itself, a subjective assessment of the Government based on the relative importance as follows:

(c) Factor 2, Key Personnel Resumes, is the most important Factor. When combined, Factors 2 and 3 are significantly more important than Factor 4, Cost/Price. The importance of Factor 4 as an evaluation factor will increase with the degree of equality in the overall merit of competing proposals under non-cost/price (past performance and technical) factors.

(d) After the comparative assessment of each fair opportunity selection technical factor has been completed and reviewed by the PCO, information from the cost/price evaluation will be shared with the selection official for consideration in determining which offer is the Most Advantageous to the Government. The Government will then perform a combined technical and cost/price factors comparative analysis among the proposal(s) found to be Most Suitable for award to select the offer that is Most Advantageous to the Government. As required by FAR 16.505, the task order selection official will document his or her basis for award.

(e) The Government reserves the right to award to a lower cost Offeror when the proposals are considered essentially equal in terms of all non-cost factors, or when specific positives associated with a past performance and/or technically superior offer do not support the payment of the associated premium. The Government also reserves the right to award to a higher cost Offeror when the proposals are not considered essentially equal in terms of all non-cost factors, or when specific positives associated with a technically superior offer support the payment of the associated premium.

M-2 STREAMLINED EVALUATION AND AWARD PROCEDURES

(a) This task order evaluation and award will be conducted pursuant to FAR 16.505. This streamlined evaluation and award contains fewer proposal submission requirements, a reduced page limitation, and is not being conducted using the formal source selection procedures of FAR subpart 15.3.

(b) Because this streamlined evaluation pursuant to FAR 16.505 and this award is not using the formal source selection procedures of FAR Subpart 15.3, procedures such as a competitive range determination, pre-award notifications to Offerors excluded from a competitive range, and requesting final proposal revisions from all Offerors included within a competitive range are not required and will not be used. The identification of terminology similar to use in FAR Subpart 15.3, the Government’s questions and comments, and the Offeror’s answers and responses do not constitute discussions, clarifications, communications, or exchanges as used in FAR Subpart 15.3.

(c) Under FAR 16.505, the Government is required to afford all Offerors under the multiple-award contract a fair opportunity to submit a proposal and have that proposal fairly considered. Accordingly, the Government will evaluate each Offeror’s proposal fairly, similarly, and in accordance with the Fair Opportunity Proposal Request (FOPR) evaluation criteria. The Offeror’s initial proposal must contain the Offeror’s best terms, conditions, and cost/prices. Pre-award debriefings and pre-award notifications of exclusion prior to award are not required under FAR Subpart 16.5, and the Government may not provide them.

(d) After the Government has afforded all Offerors under the multiple-award contract a fair opportunity to submit offers and have offers fairly considered, the Government’s selection official may take or direct one or more of the following actions: (1) Award to the Offeror whose submission is evaluated to conform to the FOPR’s requirements, whose Small Business subcontracting Plan is "Acceptable" (Factor 1), whose submission is evaluated to be Most Suitable under Factor 2 or Factor 3, and whose submission is determined to be the Most Advantageous for the Government based upon a comparative evaluation of Offerors evaluated to be Most Suitable under Factor 2 and Factor 3; (2) Obtain written resolutions or submission revisions from the Offeror whose initial submission is determined to be the Most Advantageous to the Government based upon a comparative evaluation using the evaluation factors contained in this M-1 Basis for Award and would be awardable under the FOPR’s evaluation criteria but for a few easily-resolvable informalities, minor irregularities, or negative findings, the resolution of which do not remove evaluated positive findings or increase the Offeror’s total evaluated price set forth in Section B of the task order; (3) Further consider only those Offerors who are most likely to provide the Most Advantageous revised submissions to participate in one-on-one interchanges; (4) Further consider only the Offeror whose offer is determined the Most Advantageous submission to the Government based upon a comparative evaluation using the evaluation factors contained in the Basis for Award, despite any negative findings that may exist with that submission, where other Offerors do not have a reasonable prospect for award; or (5) Not award to any Offeror.

(e) Interchanges are fluid interaction(s) between the PCO and the Offerors that may address any aspect of the proposal and may or may not be documented in real time.

(1) The Government intends to make award based on the initial proposal submissions without conducting interchanges. Therefore, each offer should contain the Offeror’s best terms from both a cost/price and a technical standpoint. However, the Government reserves the right to hold interchanges using Interchange Notices (INs) if, during the evaluation, it is determined to be in the best interest of the Government. Offeror responses to INs will be considered in making the task order selection decision. Interchanges may be conducted with one, some, or all Offerors as the Government is not required to conduct interchanges with any or all Offerors responding to this FOPR.

(2) Once the Government determines the Offeror that is the Most Advantageous to meet stated requirements, the Government reserves the right to hold interchanges with only that Offeror to address any issues, if necessary, and finalize a task order with that Offeror. If the parties cannot successfully resolve outstanding issues, the Government may eliminate the Offeror determined to be Most Advantageous and perform another analysis of actors 2 and 3 to determine the Most Advantageous Offeror from among the remaining Offerors who met the GO/NO GO criteria at the sole discretion of the Government. If the Government begins interchanges with the next Most Advantageous Offeror, no further interchanges with the previous Offeror may be entertained until after task order award. This process may continue until an agreement is successfully reached and a task order is awarded.

@FARtmanI just saw your post today. Haven't read it yet. Give me a few days.