Evaluating Professional Employee Compensation when Cost or Price is not an evaluation factor

Don Mansfield said:

What do you think agencies should do?

Evaluation of professional employee compensation is a "technical" evaluation factor. See 52.222-46(b):

Quote

The compensation levels proposed should reflect a clear understanding of work to be performed and should indicate the capability of the proposed compensation structure to obtain and keep suitably qualified personnel to meet mission objectives. The salary rates or ranges must take into account differences in skills, the complexity of various disciplines, and professional job difficulty. Additionally, proposals envisioning compensation levels lower than those of predecessor contractors for the same work will be evaluated on the basis of maintaining program continuity, uninterrupted high-quality work, and availability of required competent professional service employees. Offerors are cautioned that lowered compensation for essentially the same professional work may indicate lack of sound management judgment and lack of understanding of the requirement.

The evaluation must be done for the initial award, but, in my opinion, need not for task orders. Agencies must require submission of an employee compensation plan, as required by the provision, and evaluate the offeror's performance capability accordingly.

Vern Edwards said:

Evaluation of professional employee compensation is a "technical" evaluation factor.

I agree. However, I know of at least one contracting activity that doesn't perform the evaluation because it's listed under "Cost or Price Evaluation" in the DoD Source Selection Procedures (see 3.1.1.5). I suspect there are others.

Don Mansfield said:

I suspect there are others.

I suspect you are right.

BTW, price realism, as opposed to cost realism, is also a technical evaluation factor.

Maybe less relevant than you're looking for but I once asked a GSA Schedules CO how they evaluated 52.222-26, their office only checked that it was included with the schedule proposal. 

Personally, I'd say just evaluate it at the IDIQ level. If there's specific concerns at the task order level related to it for some reason, ask for more details as a technical factor.

Interested to know if you have seen an agency limit the number of awards on a MAC when cost is not evaluated on the initial award but is evaluated later at the task order level.  FAR 15.304(c)(1)(ii)(A)(3) "States that the Government intends to make an award to each and all qualifying offerors (see 2.101)."  When looking at 2.101 we find  "Qualifying offeror, as used in 13.106-1 and 15.304, means an offeror that is determined to be a responsible source, submits a technically acceptable proposal that conforms to the requirements of the solicitation, and the contracting officer has no reason to believe would be likely to offer other than fair and reasonable pricing (10 U.S.C. 2305(a)(3)(D))."  In other words, could a solicitation state something like "Only the the top three highest technically rated proposals will be considered as a qualified offeror"?

Dave Murree said:

Interested to know if you have seen an agency limit the number of awards on a MAC when cost is not evaluated on the initial award but is evaluated later at the task order level.  FAR 15.304(c)(1)(ii)(A)(3) "States that the Government intends to make an award to each and all qualifying offerors (see 2.101)."  When looking at 2.101 we find  "Qualifying offeror, as used in 13.106-1 and 15.304, means an offeror that is determined to be a responsible source, submits a technically acceptable proposal that conforms to the requirements of the solicitation, and the contracting officer has no reason to believe would be likely to offer other than fair and reasonable pricing (10 U.S.C. 2305(a)(3)(D))."  In other words, could a solicitation state something like "Only the the top three highest technically rated proposals will be considered as a qualified offeror"?

So, you’re basically saying that you intend to make awards of a base IDIQ contract to only three firms,  using a quality based selection (QBS) process, without regard to pricing, correct? 

FAR 15.304(c)(1) (ii) :

“In accordance with 10 U.S.C. 2305(a)(3), for DoD, NASA, and the Coast Guard—

                      (A) The contracting officer may choose not to include price or cost as an evaluation factor for award when a solicitation—

                           (1) Has an estimated value above the simplified acquisition threshold;

                           (2) Will result in multiple-award contracts (see subpart  16.5) that are for the same or similar services; and

                           (3) States that the Government intends to make an award to each and all qualifying offerors (see 2.101).”

Are you thus saying that this is for DoD, NASA or the Coast Guard and that only the top three technically rated offerors constitute “all qualifying offerors”? 

EDIT: The term “all qualified offerors” appears to me to require some criteria to determine the basis for qualification. I suppose there can be some subjective basis to determine if an offeror is “qualified” but how can  you limit “all” to a pre-determined universe of three? Was that the intent of the exception? “All” versus a pre-determined limit of three seems to arbitrarily restrict the intent of “all”.

Dave Murree said:

Interested to know if you have seen an agency limit the number of awards on a MAC when cost is not evaluated on the initial award but is evaluated later at the task order level.  FAR 15.304(c)(1)(ii)(A)(3) "States that the Government intends to make an award to each and all qualifying offerors (see 2.101)."  When looking at 2.101 we find  "Qualifying offeror, as used in 13.106-1 and 15.304, means an offeror that is determined to be a responsible source, submits a technically acceptable proposal that conforms to the requirements of the solicitation, and the contracting officer has no reason to believe would be likely to offer other than fair and reasonable pricing (10 U.S.C. 2305(a)(3)(D))."  In other words, could a solicitation state something like "Only the the top three highest technically rated proposals will be considered as a qualified offeror"?

Hi, Dave,

I have not seen that and I don't think it would fly. 

Having said that, let's say an RFP for a MAC said that award would be made to all qualifying offerors, price or cost was not an evaluation factor, and the Government intended to conduct discussions (by using FAR 52.215-1, Alt. I). Could the contracting officer establish a competitive range and eliminate all but three offerors for purposes of efficiency?

Don. Are you conflating different methods to find a way to perform a qualifications based selection QBS? The original post referred to a specific, authorized exception to the requirement to evaluate prices for DoD, NASA, and the Coast Guard but appears to limit the required universe of “all qualifiying offerors” to the top three.

Now you are referring to a “competitive range” determination, using FAR 15 but with an exception to the otherwise required evaluation of price in 15.304 (c) (1) and 15.305 (a) (1) to consider during the competitive range determination in 15.305 (c). Case law has cited the requirement to consider price in the establishment of the competitive range (when price is required to be evaluated if there is no exception).

What is your basis for an exception to evaluating price and for evaluating price before determining a competitive range or award?

And why is the pre-determined limit of the competitive range the same as the number of intended awardees?

Dave Murree said:

Interested to know if you have seen an agency limit the number of awards on a MAC when cost is not evaluated on the initial award but is evaluated later at the task order level.  FAR 15.304(c)(1)(ii)(A)(3) "States that the Government intends to make an award to each and all qualifying offerors (see 2.101)."  When looking at 2.101 we find  "Qualifying offeror, as used in 13.106-1 and 15.304, means an offeror that is determined to be a responsible source, submits a technically acceptable proposal that conforms to the requirements of the solicitation, and the contracting officer has no reason to believe would be likely to offer other than fair and reasonable pricing (10 U.S.C. 2305(a)(3)(D))."  In other words, could a solicitation state something like "Only the the top three highest technically rated proposals will be considered as a qualified offeror"?

Haven't seen it, but who knows? Try it and let's see what happens. You might get by with it. 

It's an interesting phenomenon. Congress makes a rule: "You shall evaluate price." That rule proves to be inconvenient in some circumstances, so Congress makes an exception: "Well, you don't have to evaluate price if you're going to make multiple awards and give a contract to "each and all qualifying offerors."

It isn't long long before somebody tries to stretch or bend the exception. This comes to the attention of Congress after a while, which then changes the rule or makes another. I've seen it happen many times over the course of my 47 years in this business. That's  why the FAR (48 CFR Ch. 1), which started out being 1,220 pages long, is now 1,624 pages long and still growing—an historical average rate of about 10.9 pages a year over 37 years. That does not include the FAR supps.

Maybe this is an illustration of what David Graeber described as "The Iron Law of Liberalism" in his book The Utopia of Rules:

Quote

The Iron Law of Liberalism states that any market reform, any government initiative intended to reduce red tape and promote market forces will have the ultimate effect of increasing the total number of regulations, the total amount of paperwork, and the total number of bureaucrats [and contractor-furnished support staff] the government employs.

Rules spawn more rules. Emergent behavior.

Vern Edwards said:

Rules spawn more rules.

They also spawn interpretations of rules.

I forgot that Dave said that a qualifying offeror is defined in part as one who “submits a technically acceptable proposal that conforms to the requirements of the solicitation. “ 

Dave Murree said:

When looking at 2.101 we find  "Qualifying offeror, as used in 13.106-1 and 15.304, means an offeror that is determined to be a responsible source, submits a technically acceptable proposal that conforms to the requirements of the solicitation, and the contracting officer has no reason to believe would be likely to offer other than fair and reasonable pricing (10 U.S.C. 2305(a)(3)(D))."

That directly contradicts limiting “all qualifying offerors” to “only the top three highest technically rated proposals”.

joel hoffman said:

They also spawn interpretations of rules.

Which sometimes are, in effect, new rules. Consider the GAO's interpretations of the requirement for discussions in source selection since it was first enacted as part of Public Law 87-653, on September 10, 1962, and read:

Quote

In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which time of delivery will permit, proposals shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured, and written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price, and other factors considered....

From that short statutory passage we have gotten GAO and COFC interpretations and applications in hundreds of protest decisions and have ended up (so far) with FAR 15.306 and still  more protest decisions.

Emergent behavior in a complex adaptive system.

Vern Edwards said:

Which sometimes are, in effect, new rules. Consider the GAO's interpretations of the requirement for discussions in source selection since it was first enacted as part of Public Law 87-653, on September 10, 1962, and read:

From that short statutory passage we have gotten GAO and COFC interpretations and applications in hundreds of protest decisions and have ended up (so far) with FAR 15.306 and still  more protest decisions.

Emergent behavior in a complex adaptive system.

Right on!

Quote

The RFP provided that award would be made to all “qualifying offerors,” defined as offerors that received a pass rating for administrative and responsibility matters, an acceptable rating for an IDIQ Management evaluation factor, and a substantial confidence rating for past performance.

*   *   *

The protest is denied.

[Patriot Defense Group, B-418720.3, August 5, 2020]

This seems to show that the agency can define “qualifying” for a particular procurement.  The protester apparently didn't challenge the definition of "qualifying."

Quote

The solicitation contemplated the award of 40 multiple-award, indefinite‑delivery, indefinite‑quantity (IDIQ) contracts.

*   *   *

The protest is denied.

[Strategic Services and Solutions, B-415716.38, December 4, 2019]

This seems to show that an agency can cap the number of awards.  There were several protests to this acquisition – but as far as I can tell, none of them challenged the “40” planned awards.

Granted, both of these were post-award protests, so maybe the question is still open.

I think that if an agency were to state in the solicitation that it was going to cap the number of awards, such that some "qualifying offerors" would not receive a contract, the GAO or COFC might find a post-award protest to be untimely. Not sure.

Ordinarily, I don't that there is any question that an agency can cap the number of awards. The issue is whether they can do that if the CO invokes FAR 15.304(c)(1)(ii)(A)(3).

In any case, neither of the protests cited by ji20874 appear to have been based on FAR 15.304(c)(1)(ii)(A)(3), unless I missed it.

ji20874 said:

The RFP provided that award would be made to all “qualifying offerors,” defined as offerors that received a pass rating for administrative and responsibility matters, an acceptable rating for an IDIQ Management evaluation factor, and a substantial confidence rating for past performance

The protest is denied.

[Patriot Defense Group, B-418720.3, August 5, 2020]

ji20874 said:

This seems to show that the agency can define “qualifying” for a particular procurement.  The protester apparently didn't challenge the definition of "qualifying."

I read the Patriot Defense Group protest decision. The Air Force’s definition of qualifying offer appears to be consistent with the definition of qualifying offerors in 2.101 and 15.304. 

There is a big difference between “all offerors” meeting standards of acceptability vs. limiting consideration to the top three most highly rated offerors.

I read the Strategic Services and Solutions, JV protest decision. As mentioned, it was a post award protest and did not appear to be a protest of the limit of 40 awards or of the basis of award.

joel hoffman said:

I read the Strategic Services and Solutions, JV protest decision. As mentioned, it was a post award protest and did not appear to be a protest of the limit of 40 awards or of the basis of award.

It does illustrate that an agency can apparently make up it’s own rules in a solicitation and if nobody protests the terms prior to time for receipt of proposals , they might get away with it.

Vern Edwards said:

In any case, neither of the protests cited by ji20874 appear to have been based on FAR 15.304(c)(1)(ii)(A)(3), unless I missed it.

The Patriot Defense Group decision was based on the same authority--it just wasn't implemented in the FAR at the time. From footnote #2:

Quote

The agency did not request, or otherwise evaluate, proposed costs or prices, as this procurement was conducted in accordance with Section 825 of the National Defense Authorization Act (NDAA) for Fiscal Year 2017, Class Deviation 2018-O0006. That authority, which was issued pursuant to 10 U.S.C. § 2305(a)(3)(C), provides that when issuing a solicitation that will result in multiple-award contracts issued for the same or similar services, entities subject to Title 10 of the U.S. Code may exclude price or cost as an evaluation factor for the contract awards, if the solicitation states that the government intends to make an award to each and all qualifying offerors.

What I find interesting about this case is that offerors needed to get a score of "Substantial Confidence" for past performance to be technically acceptable. The protester, who was a small business concern, was eliminated because they only received a score of "Limited Confidence". Since the past performance evaluation was essentially go/no-go, why didn't the CO refer the matter to the SBA for a CoC?

joel hoffman said:

Are you conflating different methods to find a way to perform a qualifications based selection QBS?

No, I'm only asking in the context of FAR part 15 competitive negotiation.

joel hoffman said:

What is your basis for an exception to evaluating price and for evaluating price before determining a competitive range or award?

FAR 15.304(c)(1)(ii)(A).

joel hoffman said:

And why is the pre-determined limit of the competitive range the same as the number of intended awardees?

It's not predetermined in the scenario I presented.

Don Mansfield said:

Since the past performance evaluation was essentially go/no-go, why didn't the CO refer the matter to the SBA for a CoC?

I had a similar thought, but I fault the protester's attorney for not raising that question.  That's what attorneys are for, and if you're going to protest, you might as well protest something that has a chance of winning.

Don Mansfield said:

joel hoffman said:

What is your basis for an exception to evaluating price and for evaluating price before determining a competitive range or award?

Don replied: “FAR 15.304(c)(1)(ii)(A).”

Don Mansfield said:

Having said that, let's say an RFP for a MAC said that award would be made to all qualifying offerors, price or cost was not an evaluation factor, and the Government intended to conduct discussions (by using FAR 52.215-1, Alt. I). Could the contracting officer establish a competitive range and eliminate all but three offerors for purposes of efficiency?

No, it would be contradictory to FAR 15.304(c)(1)(ii)(A) which states that award will be made to all qualifying offerors. That is a form of technically acceptable proposal from qualified offerors.  

52.215-1, Alt 1 allows the government to limit the consideration to those most highly rated proposals for the sake of efficiency. And it mentions both price and technical standpoint for a competitive range determination.

Limiting the competition  or consideration for award to an efficient number of the “most highly rated” proposals is fundamentally different,  contradictory and irrelevant to a process which requires the government to make award to ALL qualifying offerors. They are mutually exclusive processes.

_“Alternate I (Oct_1997). As prescribed in 15.209(a)(1), substitute the following paragraph (f)(4) for paragraph (f)(4) of the basic provision:

(f)(4) The Government intends to evaluate proposals and award a contract after conducting discussions with offerors whose proposals have been determined to be within the competitive range. If the Contracting Officer determines that the number of proposals that would otherwise be in the competitive range exceeds the number at which an efficient competition can be conducted, the Contracting Officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals. Therefore, the offeror's initial proposal should contain the offeror's best terms from a price and technical standpoint.”

joel hoffman said:

No, it would be inconsistent with FAR 15.304(c)(1)(ii)(A) which states that award will be made to all qualifying offerors. That is a form of technically acceptable proposal from qualified offerors.  

52.215-1, Alt 1 allows the government to limit the consideration to those most highly rated proposals for the sake of efficiency. And it mentions both price and technical standpoint for a competitive range determination.

Limiting the competition  or consideration for award to an efficient number of the “most highly rated” proposals is fundamentally different,  contradictory and irrelevant to a process which requires the government to make award to ALL qualifying offerors. They are mutually exclusive processes.

_“Alternate I (Oct_1997). As prescribed in 15.209(a)(1), substitute the following paragraph (f)(4) for paragraph (f)(4) of the basic provision:

(f)(4) The Government intends to evaluate proposals and award a contract after conducting discussions with offerors whose proposals have been determined to be within the competitive range. If the Contracting Officer determines that the number of proposals that would otherwise be in the competitive range exceeds the number at which an efficient competition can be conducted, the Contracting Officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals. Therefore, the offeror's initial proposal should contain the offeror's best terms from a price and technical standpoint.”

Ok, but if you are using FAR part 15, then the contracting officer is required to include the provision at FAR 52.215-1. This provision advises offerors that the Government reserves the right to limit the competitive range for purposes of efficiency. 

Are you saying that if the RFP states award will be made to all qualifying offerors, the Government no longer has this right?

You are making a quality based selection. I don’t know if you can limit the number of awards based upon higher ratings when you are using the authority to use QBS based upon awarding to all  “qualifying proposals”, if the criteria for qualifying proposals is that they meet the technical requirements and you assume that they can be awarded task orders at fair and reasonable prices.

Edit: Remember that the definition in FAR part 2 specifically applies to the 15.304 exception to evaluating prices. There is no provision to favor most highly rated proposals in the award of the base ID/IQ in that definition.

I think using Alt I and then limiting the competitive range for efficiency is an elegant way to cap the number of awardees.

ji20874 said:

I think using Alt I and then limiting the competitive range for efficiency is an elegant way to cap the number of awardees.

How do you justify an exception to price evaluation based upon awarding to All qualified proposals and then limit it to just three most highest rated  proposals?

joel hoffman said:

How do you justify an exception to price evaluation based upon awarding to All and then limited to just three?

Very good question.

joel hoffman said:

How do you justify an exception to price evaluation based upon awarding to All qualified proposals and then limit it to just three most highest rated  proposals?

I would justify it on the basis of efficiency. As long as the RFP advised offerors that a CO had the right to exclude them from the competitive range for purposes of efficiency, which FAR 52.215-1 does, then the CO could exercise that right. 

I also think that a protest by an interested party that was eliminated this way would be untimely. It would have to be a protest of the solicitation.

“3” = “efficiency”? Highly doubtful;  “10” or  “20” maybe; “30” perhaps; “40”, probably.

But limiting consideration of award  to “3” offerors doesn’t even resemble the statutory based exception- especially when you change the method of evaluation from the definition in FAR 2.101 of qualifying offeror* to the three most highly rated offerors, using comparative rating methods and then comparing proposals. 

This is NOT a “best value” selection in the truest sense where industry defines best value as considering both price and quality and FAR 2.101 defines it as “Best value means the expected outcome of an acquisition that, in the Government's estimation, “provides the greatest overall benefit” in response to the requirement.” A qualifications based selection procedure is not within  the “Best Value Spectrum”  in 15.101. 

*”Qualifying offeror, as used in 13.106-1and 15.304, means an offeror that is determined to be a responsible source, submits a technically acceptable proposal that conforms to the requirements of the solicitation, and the contracting officer has no reason to believe would be likely to offer other than fair and reasonable pricing (10 U.S.C. 2305(a)(3)(D)).”

I don’t disagree with Don that someone can get away with it. Most contractors wouldn’t have a clue what is legal or authorized and what isn’t.

joel hoffman said:

But limiting consideration of award  to “3” offerors doesn’t even resemble the statutory based exception- especially when you change the method of evaluation from the definition in FAR 2.101 of qualifying offeror* to the three most highly rated offerors, using comparative rating methods and then comparing proposals.

I didn't propose that. I just proposed eliminating offerors for purposes of efficiency.

On 8/19/2021 at 11:08 PM, Don Mansfield said:

Hi, Dave,

I have not seen that and I don't think it would fly. 

Having said that, let's say an RFP for a MAC said that award would be made to all qualifying offerors, price or cost was not an evaluation factor, and the Government intended to conduct discussions (by using FAR 52.215-1, Alt. I). Could the contracting officer establish a competitive range and eliminate all but three offerors for purposes of efficiency?

Don - Ok. What efficiency are you expecting to gain? Please explain what efficiency you will gain by limiting to three. Awarding to only three? Not having to fully evaluate each proposal?

I’m assuming that you will evaluate at least some aspect of all proposals- correct?

If you intend to award without discussions, you can do that anyway, regardless of whether you intend to only award to three. You can evaluate past performance, for instance and eliminate all who don’t meet your acceptability criteria. Then you can evaluate another aspect and eliminate those who don’t meet the acceptability criteria - and so forth, whittling away all who aren’t “qualifying offers”. 

When and how , after receipt of technical/past performance proposals, would you establish a competitive range and eliminate all but three offerors? Seems like you will have to have a way to compare them, then rank them. If not the three most highly rated offers, how would you limit to three awards? 

Going from award to “all qualifying” offerors to the “three most highly rated” offerors appears to me to bear little resemblance to the available authority in 15.304 not to evaluate price.

Don, it just occurred to me that, by using 52.215-1, alternate 1, paragraph (f) (4) indicates that you intend to conduct discussions. Why did you suggest using alternate 1 if you are just proposing eliminating offerors for efficiency? Seems like you would be adding more complexity by advocating conducting discussions.

Don Mansfield said:

I didn't propose that. I just proposed eliminating offerors for purposes of efficiency.

Paragraph (f)(4) in the basic clause says that you intend to award without discussions but reserve the right to conduct discussions.

Both versions allow the government to establish a competitive range and limit those in the competitive range for purposes of efficiency.

My guess is that you don’t want to award to more than three. If so, it would be necessary to rate proposals using comparative evaluation criteria, compare proposals and rank them. If you are going to conduct discussions, what is the purpose of the discussions?

I don’t understand how that would be more efficient, other than only having to award three contracts

Limiting award to 3 firms isn’t compliant or consistent  with the intent or the wording of the exception to evaluating prices for ID/IQ award.

Establishing a competitive range and limiting it to three offerors means that you are going to conduct discussions with three offerors after evaluating all offers.

Paragraph (f)(4) says that you can limit the competitive range for purposes of efficiency in the competition. If you limit the competitive range to three offerors, it means you are going to conduct competition for award among the three offerors. If you intend to make three awards (it’s a MAC), what are the three firms competing for???

And why is “three firms” the greatest number in the competitive range that will permit competition(??) among them for three awards?   

See FAR 15.304 (c):

  “  (c) Competitive range.

 (1) Agencies shall evaluate all proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the competitive range. Based on the ratings of each proposal against all evaluation criteria, the contracting officer shall establish a competitive range comprised of all of the most highly rated proposals, unless the range is further reduced for purposes of efficiency pursuant to paragraph (c)(2) of this section.

            (2) After evaluating all proposals in accordance with 15.305(a) and paragraph (c)(1) of this section, the contracting officer may determine that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted. Provided the solicitation notifies offerors that the competitive range can be limited for purposes of efficiency (see 52.215-1(f)(4)), the contracting officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals (10 U.S.C.2305(b)(4) and 41 U.S.C.3703).”

I don’t understand how your proposed method to promote “efficiency” for competition during discussions among the greatest number of offerors (“three”) for three MAC awards makes sense.

On 8/22/2021 at 5:30 AM, joel hoffman said:

I don’t understand how your proposed method to promote “efficiency” for competition during discussions among the greatest number of offerors (“three”) for three MAC awards makes sense.

@joel hoffman@Don Mansfield

It doesn't.

See FAR 15.306(c)(2):

Quote

After evaluating all proposals in accordance with 15.305(a) and paragraph (c)(1) of this section, the contracting officer may determine that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted. Provided the solicitation notifies offerors that the competitive range can be limited for purposes of efficiency (see 52.215-1(f)(4)), the contracting officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals (10 U.S.C.2305(b)(4) and 41 U.S.C.3703). [Emphasis added.]

Now see FAR 15.304(c)(1)(ii):

Quote

(ii) In accordance with 10 U.S.C. 2305(a)(3), for DoD, NASA, and the Coast Guard—

                     (A) The contracting officer may choose not to include price or cost as an evaluation factor for award when a solicitation—

                          (1) Has an estimated value above the simplified acquisition threshold;

                          (2) Will result in multiple-award contracts (see subpart 16.5) that are for the same or similar services; and

                          (3) States that the Government intends to make an award to each and all qualifying offerors (see 2.101). [Emphasis added.]

Now think about it. If a CO chooses to invoke FAR 15.304(c)(1)(ii), then there is no competition. The only purpose of the "source selection" would be to invite companies to quality for an award, which, according to FAR, must be made to "each and all" qualifying offerors. Anyone using that method is not seeking efficient competition. In fact, they are not seeking competition of any kind. To invoke FAR 15.306(c)(2) in such an acquisition makes no sense to me. Indeed, one can argue that the very idea of a "competitive range" in a 15.304(c)(1)(ii) "competition" is paradoxical.

What Don has shown is that when the FAR councils added 15.304(c)(1)(ii) to the FAR they either did not see or or chose not to address the apparent disconnect between that new rule and FAR 15.306(c)(2). I just checked both the proposed rule, 83 FR 48271, Sept. 24, 2018, and the final rule, 85 FR 40068, July 2, 2020, and found no mention of the fact that a 15.304(c)(1)(ii) acquisition is not competitive.

Not only did the FAR councils miss the  disconnect between FAR 15.304(c)(1)(ii) and 15.306(c)(2), but they apparently missed the disconnect between 15.304(c)(1)(ii) and FAR 6.101. A FAR 15.304(c)(1)(ii) acquisition cannot result in full and open or any other degree of competition unless the agency announces its intention to limit the number of awards. There is no mention of "each and all" in the FAR 2.101 definition of full and open competition, and I don't think there is any provision for it in FAR Part 6, yet it is clearly permitted.

So if I wanted to apply 15.304(c)(1)(ii) and limit the number of awards I would say so in the RFP and say that a limit is necessary in order to obtain full and open competition as required by CICA and FAR 6.101. Arguably, you would be integrating and reconciling the requirement to award "to each and all" and the requirement to seek full and open competition. Prospective offerors would have to protest before the solicitation closing date or risk having a protest filed afterward ruled untimely. (It would be an interesting protest.)

Just brainstorming. Do I misunderstand FAR 15.304(c)(1(ii)? Have I missed something?

Vern Edwards said:

Now think about it. If a CO chooses to invoke FAR 15.304(c)(1)(ii), then there is no competition. The only purpose of the "source selection" would be to invite companies to quality for an award, which, according to FAR, must be made to "each and all" qualifying offerors.

As I understand it, solicitations for Federal Supply Schedules similarly invite companies to qualify for award. Would you also say that is not a competitive procedure?

@Don MansfieldThe FSS program is expressly authorized by law as an "other competitive procedure," even though offerors don't really compete with one another. See FAR 6.102(d) and 41 USC 152(3). Same for broad agency announcements. Those procedures were grandfathered in when CICA was passed.

Vern Edwards said:

@Don MansfieldThe FSS program is expressly authorized by law as an "other competitive procedure," even though offerors don't really compete with one another. See FAR 6.102(d) and 41 USC 152(3). Same for broad agency announcements. Those procedures were grandfathered in when CICA was passed.

So, if that's a competitive procedure why wouldn't using the authority at FAR 15.304(c)(1)(ii) be a competitive procedure?

Don Mansfield said:

So, if that's a competitive procedure why wouldn't using the authority at FAR 15.304(c)(1)(ii) be a competitive procedure?

It’s a specifically authorized qualifications based selection procedure for the basic MAC award. It provides for award to ALL qualifying offerors. How is that a competitive procedure? Competition is conducted for orders.

Don Mansfield said:

So, if that's a competitive procedure why wouldn't using the authority at FAR 15.304(c)(1)(ii) be a competitive procedure?

@Don Mansfield_Bah!_ Get your head out of the FAR, which is a sinkhole!

If offerors are not contending against one another for a prize that they cannot all win, then what kind of "competition" is there? And what kind of "competitive range" would you have? And why limit the competitive range for competitive  efficiency if there is no real competition?

You get it or you don't.

Vern Edwards said:

@Don Mansfield_Bah!_ Get your head out of the FAR, which is a sinkhole!

If offerors are not contending against one another for a prize that they cannot all win, then what kind of "competition" is there? And what kind of "competitive range" would you have? And why limit the competitive range for competitive  efficiency?

You get it or you don't.

I think there's a disconnect between your concept of competition and what passes as "full and open competition" under the FAR. The Federal Supply Schedules solicitation process does not require offerors to contend against one another for a prize that they cannot all win, yet that procedure is considered competitive under the rules. Your argument that use of FAR 15.304(c)(1)(ii) would not constitute "full and open competition" needs to account for this fact.

Don Mansfield said:

I think there's a disconnect between your concept of competition and what passes as "full and open competition" under the FAR. The Federal Supply Schedules solicitation process does not require offerors to contend against one another for a prize that they cannot all win, yet that procedure is considered competitive under the rules.

The FSS solicitation process is considered a "competitive procedure," but it does not provide for full and open competition as defined in FAR. 

See: "The Competition in Contracting Act" at https://interact.gsa.gov/blog/competition-contracting-act-cica

Vern Edwards said:

The FSS solicitation process is considered a "competitive procedure," but it does not provide for full and open competition as defined in FAR. 

See: "The Competition in Contracting Act" at https://interact.gsa.gov/blog/competition-contracting-act-cica

I don't think the blog entry supports that, but that's ok.

If the FSS solicitation process is considered a competitive procedure, then why wouldn't the use of FAR 15.304(c)(1)(ii) be considered a competitive procedure?

Don Mansfield said:

If the FSS solicitation process is considered a competitive procedure, then why wouldn't the use of FAR 15.304(c)(1)(ii) be considered a competitive procedure?

It would be if the FAR councils had added it to the list in FAR 6.102. But they didn't, which I think was a case of oversight.

But forget about that. Do you agree that the procedure described in FAR 15.304(c)(1)(ii) does not involve "competition" as defined pursuant to FAR 1.108(a)? (See the definitions of "compete" and "competition" in The American Heritage Dictionary, 5th ed.)

If you do not agree, why not?

If you do agree, then do you understand my point about the illogic of establishing a "competitive range" in an acquisition that does not involve competition?

And if "full and open competition" is about allowing all responsible offerors a chance to "compete," how does a FAR 15.304(c)(1)(ii) acquisition do that?

Don Mansfield said:

If the FSS solicitation process is considered a competitive procedure, then why wouldn't the use of FAR 15.304(c)(1)(ii) be considered a competitive procedure?

There is no initial pricing. It’s not the same as the FSS solicitation process. It is a qualifications based selection (QBS) process.

EDIT: All qualifying offerors would be offered an award under the 15.304 exception to evaluating prices.

The reason I say “would be offered an award” is only because generally the KO sends the award document to the awardee to sign first and return. Per FAR 4.1. The awardee can decline, as far as I know.

I appreciate the discussion.  Here's something to throw into the mix:  FAR subpart 15.3 is only for competitive source selections, so for me, everything done under FAR subpart 15.3 is competitive.  Nothing in FAR subpart 15.3, not a single word, pertains to non-competitive actions.

ji20874 said:

I appreciate the discussion.  Here's something to throw into the mix:  FAR subpart 15.3 is only for competitive source selections, so for me, everything done under FAR subpart 15.3 is competitive.  Nothing in FAR subpart 15.3, not a single word, pertains to non-competitive actions.

Yes, I agree, such acquisitions are legally categorized as "competitive."

Legally, an acquisition is categorized as "competitive" when the government solicits proposals and gives all responsible companies a chance to submit a proposal, which is considered "competing." This legality can give rise to a paradox—a "competitive" acquisition in which there is no competition in the ordinary sense of that word.  That was the paradox that underlay Shay Assad's November 24, 2010 and April 27, 2011 memos, "Improving Competition in Defense Procurements," https://www.acq.osd.mil/dpap/policy/policyvault/USA002080-11-DPAP.pdf, in which he told COs not to use the adequate price competition standard when they receive only one offer.

Sometimes, what is legally true is a "legal fiction," which Black's Law Dictionary, 11th ed., defines as: "a device by which a legal rule or institution is diverted from its original purpose to accomplish indirectly some other object."

Offerors in a FAR 15.304(c)(1)(ii) acquisition do not compete against each other. Thus, I have argued that Don's proposed scheme for getting around the requirement to make an award to "each and all qualifying offerors" by limiting the competitive range to three offerors for purposes of "competitive efficiency" fails a logical (and maybe a legal) sniff test, and thus might not pass muster in a protest to the GAO and the COFC.

If offerors are not competing, and if awards are to be made "to each and all" qualifying offerors, why would a CO establish a competitive range other than for the purpose of conducting discussions to allow a non-qualifying offeror become qualified? In what sense are some of the offerors "most highly" rated? What does "most highly" rated even mean in such an acquisition? Would non-qualifying offerors be among the most highly rated? In response to Joel's  inquiry and my argument, Don and ji20874 respond with a legality. Fair enough, but would it pass muster in a protest? I don't know. It strikes me as a transparent work-around, a kind of legal fiction/ It's the kind of work-around that if used too often eventually results in more rules.

(Exceptions to rules seem to prompt work-arounds to expand their application, which often result in more rules.)

I think Don has showed us another instance in which the FAR does not always make sense. In this case, FAR 15.304(c)(1)(ii)(A)(3) and FAR 15.306(c)(2) do not seem compatible. Should FAR address that issue, or should the councils wait for the protests to address it, if ever? The FAR councils implemented a statute simply by inserting it into the FAR without thinking things through, which is their job.

It's already started. Here is the question which started this part of this thread:

Quote

FAR 15.304(c)(1)(ii)(A)(3) "States that the Government intends to make an award to each and all qualifying offerors (see 2.101)."  When looking at 2.101 we find  "Qualifying offeror, as used in 13.106-1 and 15.304, means an offeror that is determined to be a responsible source, submits a technically acceptable proposal that conforms to the requirements of the solicitation, and the contracting officer has no reason to believe would be likely to offer other than fair and reasonable pricing (10 U.S.C. 2305(a)(3)(D))."  In other words, could a solicitation state something like "Only the the top three highest technically rated proposals will be considered as a qualified offeror"?

ji20874 said:

I appreciate the discussion.

I'm glad, because for me it's the only kind of discussion worth having here.

I just discovered this while trying to research the background for Section 825 of the FY 2017 National Defense Authorization Act.

Open FAR Cases as of August 23, 2021 Synopsis
Status
08/22/2018 DARC Director tasked Acquisition Strategy Team to draft proposed FAR rule. Report due 10/17/2018. Case transferred to FAR Acquisition Environmental and Contract Management Team. Report due date extended to 09/01/2021.
     2018-014
8, 13, 15, 38
(S) Increasing Task-order Level Competition
Implements section 876 of the NDAA for FY 2019 (Pub. L. 115-232). Section 876 amends 41 U.S.C. 3306(c) by providing an exception to the requirement to consider price as an evaluation factor for the award of certain indefinite-delivery, indefinite-quantity contracts and Federal Supply Schedule contracts.”

Sorry about the Formatting in my iPhone.

Here is Section 876 of the NDAA for FY 2019 (Pub. L. 115-232):

“EC. 876. INCREASING COMPETITION AT THE TASK ORDER LEVEL.
Section 3306(c) of title 41, United States Code, is amended— (1) in paragraph (1), by inserting ‘‘except as provided in paragraph (3),’’ in subparagraphs (B) and (C) after the subpara-
graph designation; and
(2) by adding at the end the following new paragraphs: ‘‘(3) EXCEPTIONS FOR CERTAIN INDEFINITE DELIVERY, INDEFI-
NITE QUANTITY MULTIPLE-AWARD CONTRACTS AND CERTAIN FED- ERAL SUPPLY SCHEDULE CONTRACTS FOR SERVICES ACQUIRED ON AN HOURLY RATE.—If an executive agency issues a solicitation for one or more contracts for services to be acquired on an hourly rate basis under the authority of sections 4103 and 4106 of this title or section 152(3) of this title and section 501(b) of title 40 and the executive agency intends to make a contract award to each qualifying offeror and the contract or contracts will feature individually competed task or delivery orders based on hourly rates—
‘‘(A) the contracting officer need not consider price as an evaluation factor for contract award; and
‘‘(B) if, pursuant to subparagraph (A), price is not considered as an evaluation factor for contract award, cost or price to the Federal Government shall be considered in conjunction with the issuance pursuant to sections 4106(c) and 152(3) of this title of any task or delivery order under any contract resulting from the solicitation. ‘‘(4) DEFINITION.—In paragraph (3), the term ‘qualifying
offeror’ means an offeror that—
‘‘(A) is determined to be a responsible source;
‘‘(B) submits a proposal that conforms to the require-
ments of the solicitation;
‘‘(C) meets all technical requirements; and ‘‘(D) is otherwise eligible for award.”

But it concerns Title 41…no mention of Title 10. The existing FAR coverage implemented Section 825 of the FY 2017 National Defense Authorization Act in Title 10.

On 8/23/2021 at 9:32 PM, Vern Edwards said:

But forget about that. Do you agree that the procedure described in FAR 15.304(c)(1)(ii) does not involve "competition" as defined pursuant to FAR 1.108(a)? (See the definitions of "compete" and "competition" in The American Heritage Dictionary, 5th ed.)

Yes.

On 8/23/2021 at 9:32 PM, Vern Edwards said:

If you do agree, then do you understand my point about the illogic of establishing a "competitive range" in an acquisition that does not involve competition?

Yes.

On 8/23/2021 at 9:32 PM, Vern Edwards said:

And if "full and open competition" is about allowing all responsible offerors a chance to "compete," how does a FAR 15.304(c)(1)(ii) acquisition do that?

It doesn't.

Yet, despite the application of logic, I think the implication in the FAR is that use of FAR 15.304(c)(1)(ii) would still be a competitive procedure. Wouldn't you agree?

Don Mansfield said:

Yet, despite the application of logic, I think the implication in the FAR is that use of FAR 15.304(c)(1)(ii) would still be a competitive procedure. Wouldn't you agree?

@Don MansfieldYes, as a matter of law, I agree, despite the fact that there really wouldn't be any competition among offerors.

So, what, if any, are the possible implications with respect to FAR 15.306(c), especially 15.306(c)(2)?

@Don Mansfield  @Vern Edwards

As this thread progresses I wanted to provide a thought.   If I read correctly subtly your discussion is related to a procurement done under the guiding principles of FAR Part 15.  As such all should pay attention to this fact in following the continuing discussion.

I say this as when it comes to a procurement conducted pursuant to FAR Part 13, where no guiding principles of FAR Part 15 are incorporated, or in other words specifically FAR Part 13 is used is there not a different track of thinking that would have to be applied as to whether there is an "out" on the Government intentions to make an award to each and all qualifying offerors?  Or in other words such things as competitive range does not apply.

My question is raised considering the threshold for commercial item acquisition is significant where SAP can be used.

Vern Edwards said:

So, what, if any, are the possible implications with respect to FAR 15.306(c), especially 15.306(c)(2)?

That's the question I raised to @Dave Murree, stated differently. 

If an agency used the authority at FAR 15.304(c)(1)(ii) and the solicitation included FAR 52.215-1, I think offerors are on notice that they could be eliminated for purposes of efficiency notwithstanding the solicitation stating that award would be made to all qualifying offerors. I think you would have to interpret the solicitation in a way that gives meaning to all terms and conditions.

I think that in a 15.304(c)(1)(ii) acquisition there is no competition and no competitive range. I thin you have to award to "each and all."

Good discussion. Let's keep our eyes open for the first protest.

Don Mansfield said:

That's the question I raised to @Dave Murree, stated differently. 

If an agency used the authority at FAR 15.304(c)(1)(ii) and the solicitation included FAR 52.215-1, I think offerors are on notice that they could be eliminated for purposes of efficiency notwithstanding the solicitation stating that award would be made to all qualifying offerors. I think you would have to interpret the solicitation in a way that gives meaning to all terms and conditions.

The basis of award is the basis of award. You can’t legitimately eliminate a qualifying offeror. Of course we are talking about what is legitimate here. The law dictates the procedures in order to use the exception to evaluating price for selection of awardees for an ID/IQ. Instead compete price at the order level. The law is implemented in FAR 15.304 and 2.101 (defines a qualifying offeror). 

You say ok, but if someone doesn’t protest the conflicting terms of a solicitation prior to receipt of proposals, the government is free and clear to get away with it.

So why do we even discuss and debate the principles of acquisition in the WIFCON Forum?

It’s clear what the law and FAR intended in order not to evaluate (compete) price for an award of the initial ID/IQ. You have to modify or edit conflicting language. For instance there should be no mention of price - it’s clearly mentioned in 52.215-1. Likewise, there is no “competitive range, comprised of the most highly rated offerors”. Edit it out! There is no provision for a pre-determined number of awardees.

Why advocate or pick and choose what laws and FAR portions you want to comply with? Just advocate what you want to and hope nobody (timely) protests (and knows enough in order to timely protest)?

To me that is wrong and it is contrary to the purpose of the WIFCON Forum.

EDIT: We should not suggest to readers that the government can and/or should issue solicitations with patent ambiguities, knowingly conflicting, deviating or otherwise incorrect terms/language/procedures, then hope that nobody knows enough to timely protest the solicitation. I’m not necessarily referring to Vern’s last post above.

By the way, I haven’t been successful in researching the background for the legislation in the FY 2017 Defense Authorization Act that enacted the exception to evaluating price for initial award and why award must be made to “all qualifying offerors” rather than the most qualified offerors (assuming that you have no reason to believe they would be likely to offer other than fair and reasonable pricing during task order competitions).

From my source selection experience, the “most qualified” offerors were sometimes way too expensive to be affordable or within the available funding. I would be hesitant to use a true Qualifications Based Selection process limited to the most highly rated or most highly qualified offerors without regard to price. Perhaps that’s why the legislation required award to “all qualifying offerors”, instead of the most highly rated, qualified offerors.

@Vern Edwards@Don MansfieldAfter reading the thread to this point here is how I think awarding to 3 contractors might work.

A CO would need to via the acquisition planning process make a determination that preference for multiple award applies.  In making that determination the CO would also determine, based on FAR 16.504(c)(ii)(A), how many contracts are to be awarded.

Moving to the solicitation phase competition then occurs because the exception of FAR 15.304 is simply to the fact that the competition is not on cost or price but a competition on qualifying offeror standards/factors.  I say this having read this GAO decision (https://www.gao.gov/products/b-418720.11 )  where 86 offers were received yet only 46 awards were made which to me suggests that there was competition – winners and losers.

Further with reference to the aforementioned GAO decision, with qualifying offeror evaluation factors stated in a solicitation some could or would be pass/fail and acceptable/not acceptable however included would be a qualitative factor (such as past performance).   It would then be consistent with the ideal of establishing a competitive range that the X number of most highly qualified firms could be comprised of those with the best qualitative ratings (again best past performance).  

With the competitive range established and pursuant to acquisition planning and the statement in the solicitation that only 3 contracts will be awarded the CO would then award to 3 contractors, those out of the competitive range that had the highest qualitative rating (past performance).

How is this any different than picking only 3 contractors for award out a competitive range when price/cost is also considered?

@joel hoffman As to the mention of cost or price in 52.215-1 I do not read the clause as stating that it establishes a competition based on cost/price but only that cost/price is to be provided.   The solicitation otherwise will state whether the evaluation of cost/price will or will not occur.

C Culham said:

With the competitive range established and pursuant to acquisition planning and the statement in the solicitation that only 3 contracts will be awarded the CO would then award to 3 contractors, those out of the competitive range that had the highest qualitative rating (past performance).

So the solicitation would say that award would be made to all qualifying offerors and that only 3 contracts would be awarded?

joel hoffman said:

By the way, I haven’t been successful in researching the background for the legislation in the FY 2017 Defense Authorization Act that enacted the exception to evaluating price for initial award and why award must be made to “all qualifying offerors” rather than the most qualified offerors (assuming that you have no reason to believe they would be likely to offer other than fair and reasonable pricing during task order competitions).

Actually, the statute, Pub. L. 114-328, Sec. 825, says, "each qualifying offeror." It does not say "all." The FAR councils added the "all" to FAR 15.304(c)(1)(ii). Not that that makes a difference.

Sec. 825 originated in the Senate.

I have reviewed both the proposed rule, 83 FR 48271, Sept. 24, 2018, and the final rule that changed FAR 15.304 to implement the statute, 85 FR 40068, July 2, 2020, FAC 2020-07. In both cases the FAR councils quote the statute, which says "each qualifying offeror" and then state the text of the proposed and final rules as saying, "each and all qualifying offerors." I say the addition of "all" was deliberate.

The final rule responses to comments on the proposed rule make no mention of comments about the "all."

I think the intention is clear. All means all. Based on what I have read, I do not believe that a CO may use FAR 15.306(c) to make a competitive range determination that would preclude any "qualifying offeror" from receiving a contract. I actually hope I'm wrong, because I think "each and all" is bad law and policy. But I don't think I am wrong. I think they meant it. All means all.

As for timely protests, see 4 CFR 21.2(a)(1):

Quote

(1) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation. If no closing time has been established, or if no further submissions are anticipated, any alleged solicitation improprieties must be protested within 10 days of when the alleged impropriety was known or should have been known.

Now see 4 CFR 21.2(c):

Quote

(c) GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely protest.

This is not a guiding principles matter. See FAR 1.102(d):

Quote

The role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.

Emphasis added. See also FAR 1.102-4(e):

Quote

(e) The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.

Emphasis added.

There is no "absence of direction." If there is any question about the use of competitive range decisions to eliminate qualifying offerors, it is a matter for proper statutory and regulatory interpretation, not acquisition team discretion.

I blame the FAR councils for not completely integrating and reconciling the statute with FAR Subpart 15.3, and addressing the competitive range issue, which leaves the question open to manipulation by wily finaglers. Milo Minderbender lives.

Somehow, the Air Force justified 40 awardees.  It would be interesting to read the legal review, if anything was put in writing.

BTW, according to Garner's Dictionary of Legal Usage, 3d ed., "each" means "every one of the several or many things (or persons) comprised in a group." He includes "each and all" in his long list of "doublets" on pages 295-296, which are "amplification by synonym." He says that one of the explanations for doublets is "fondness that lawyers have for this stylistic quirk."

ji20874 said:

Somehow, the Air Force justified 40 awardees.  It would be interesting to read the legal review, if anything was put in writing.

@ji20874There's not enough information in that post to enable us to understand its implication for this thread.

Are you saying the Air Force conducted a 15.304(c)(1(ii) procurement and limited the number of qualifying offerors to 44? If so, did they announce their intention in the RFP? If so, did they get a protest? Was the procurement described in an earlier post. (This thread has gotten pretty long, so I might have missed it.)

We're talking about whether the number of awards under the cited authority can be limited to three as an example, and whether a competitive range approach can achieve that end.  But in real life, the Air Force already did a procurement using the cited authority and limited the number of awards upfront in the solicitation.  I mentioned the procurement and a protest (one of several) in my first posting under this thread.

ji20874 said:

We're talking about whether the number of awards under the cited authority can be limited to three as an example, and whether a competitive range approach can achieve that end.  But in real life, the Air Force already did a procurement using the cited authority and limited the number of awards upfront in the solicitation.  I mentioned the procurement and a protest (one of several) in my first posting under this thread.

Yes and I believe we discussed that the protester didn’t raise the issue in the protest, so that may be why GAO didn’t address it. They have enough to without adding to their workload.

Of course a way to limit the number of awards can be to set high minimum requirements, e.g., “substantial confidence” for past performance. That can be legitimate. Didn’t the government do that in one of your two cited protests?

There have been several suggestions or hints to just try it and see if there is a (timely) protest prior to the time established for initial proposal receipt.

The discussion also indicated that the industry may be ignorant of the law or the FAR conditions for not evaluating price for initial ID/IQ awards.

So now we’re cherry picking which acquisition laws and regulations that we want to fall on our swords over and which ones to flaunt, ignore or break. The justification is that if one doesn’t like it, they can try and they might get away with ignoring or changing it. Industry may not be aware of it or might not recognize non-compliance until after proposal submission and government evaluation.

ji20874 said:

We're talking about whether the number of awards under the cited authority can be limited to three as an example, and whether a competitive range approach can achieve that end.  But in real life, the Air Force already did a procurement using the cited authority and limited the number of awards upfront in the solicitation.  I mentioned the procurement and a protest (one of several) in my first posting under this thread.

Assuming you are referring to Strategic Services and Solutions, JV, the solicitation didn't say that award would be made to all qualifying offerors. According to the decision:

Quote

Proposals were to be evaluated based on technical experience and past performance factors. The past performance factor was comprised of the following three subfactors in descending order of importance: life-cycle software services, cybersecurity, and information technology business analysis. Award was to be made on a past performance tradeoff basis among technically acceptable offerors, using the three past performance subfactors.

That doesn't seem to comply with the statute permitting award without considering cost/price, but that's what they did.

joel hoffman said:

There have been several suggestions or hints to just try it and see if there is a (timely) protest prior to the time established for initial proposal receipt.

The discussion also indicated that the industry may be ignorant of the law or the FAR conditions for not evaluating price for initial ID/IQ awards.

So now we’re cherry picking which acquisition laws and regulations that we want to fall on our swords over and which ones to flaunt, ignore or break. The justification is that one can try and might get away with it, i.e., industry might not be aware of it or might not recognize non-compliance until after proposal submission and government evaluation.

C Culham said:

@joel hoffman As to the mention of cost or price in 52.215-1 I do not read the clause as stating that it establishes a competition based on cost/price but only that cost/price is to be provided.   The solicitation otherwise will state whether the evaluation of cost/price will or will not occur.

There is no cost/price submission (e.g., paragraph (f)(4)) in a qualifications based selection for MAC awards pursuant to the exception in 15.304. Pricing is established in the ordering process.

It’s also not a best value competition as described in paragraph (f)(1) and alluded to in (f)(4).

@Don MansfieldYeah, well, the Dalai Lama is in exile.

@ji20874I have found 20 GAO protest decisions of acquisitions conducted pursuant to PL 114-328, Sec. 825, including the ones that you mentioned. All of the decisions concerned solicitations that were issued before FAC 2020-07, which changed FAR 15.304 and which took effect on August 3, 2020. Eighteen of the 20 decisions were published before FAC 2020-07 took effect.

A preliminary Westlaw search indicates that none of the decisions mention "qualifying offeror" in the digest and none mention competitive range determinations or the conduct of discussions. Seventeen expressly state that award was made without discussions.

I am still reading the decisions, but so far I see nothing indicating that any of them will shed any light on the permissibility of eliminating "qualifying offerors" by means of exclusion from the competitive range, which, I think, is what we are talking about.

ji20874 said:

We're talking about whether the number of awards under the cited authority can be limited to three as an example, and whether a competitive range approach can achieve that end.  But in real life, the Air Force already did a procurement using the cited authority and limited the number of awards upfront in the solicitation.  I mentioned the procurement and a protest (one of several) in my first posting under this thread.

@ji20874I went through the thread and found that you mentioned only two protests (unless I missed something again😞 ), Patriot Defense Group, LLC, B-418720.3, August 5, 2020, and Strategic Services and Solutions, JV, B-215716.38, December 4, 2019. Both were about acquisitions conducted before FAC 2020-07 took effect. Neither involved a protest based on violation of FAR 15.304(c)(1)(ii) or PL 114-328, Sec. 825.

I have found and downloaded the RFPs for both and scanned them. Both state that they were being conducted pursuant to P.L. 114-328, Sec. 825. (I wonder how many offerors looked that up to see what it said.)

The Patriot case RFP mentions "qualifying offerors," but Strategic does not.

The Patriot case RFP makes no mention of a limit on the number of awards.

While the GAO says that the Strategic case RFP "contemplated the award of 40 multiple-award, indefinite-deliver indefinite-quantity (IDIQ) contracts," what the RFP actually said was this:

Quote

The Government intends to award forty(40) IDIQ contracts; however, the Government reserves the right to award more, less, or no contracts at all.

That statement is not inconsistent with the statute. Neither RFP included 52.215-1 with either of its alternates.

My conclusion is that neither of those acquisitions shed any light on the question of whether a CO could properly eliminate a "qualifying offeror" by excluding it from the competition range. I am still looking at the other decisions. ("Still collating," said Ash.)

However, as I believe you have suggested, both decisions may shed some light on the agencies' evaluation methods and on certificate of competency issues. I have focused on Don's notion of avoiding awards to "each and all" via competitive range decisions. I have looked at those other matters only in passing.

I still believe that you cannot eliminate a "qualifying offeror" by means of a competitive range determination. I also believe that a CO cannot "cap" the number of awards.

Vern

Don Mansfield said:

So the solicitation would say that award would be made to all qualifying offerors and that only 3 contracts would be awarded?

I get your point.  But I might say yes as there is a conflict with FAR 16.504(c)(ii)(A) in that for multiple award IDIQs(not supplemented by the DFARS it appears) that a CO is to determine an appropriate amount of contracts to award.   Can a CO have it both ways - All qualifying offers based on a FAR part 16 determination that "all" is 3 or some number?    

joel hoffman said:

There is no cost/price submission (e.g., paragraph (f)(4)) in a qualifications based selection for MAC awards pursuant to the exception in 15.304. Pricing is established in the ordering process.

FAR 15.304 does not say there should be no price submission just that you do not evaluate cost/price for selection.  I would suggest that you need cost/price to ascertain that  a qualifying offer likely has fair and reasonable pricing.   I will say that if the GAO were to hold to your suggestion they would be an advocate for awarding multiple award IDIQ's with no pricing in them.  Counter in my view with the intent of IDIQ's originally in my book.  Overall a moot point I guess...read my full response here.

Vern Edwards said:

I still believe that you cannot eliminate a "qualifying offeror" by means of a competitive range determination. I also believe that a CO cannot "cap" the number of awards.

I tried some thoughts where one might and failed at doing so.   As I wrangle the whole thing in my head the one truth that seems evident, and has already been said in various ways, the FAR fails at helping make sense out of if all.

C Culham said:

As I wrangle the whole thing in my head the one truth that seems evident, and has already been said in various ways, the FAR fails at helping make sense out of if all.

There it is.

C Culham said:

FAR 15.304 does not say there should be no price submission just that you do not evaluate cost/price for selection.  I would suggest that you need cost/price to ascertain that  a qualifying offer likely has fair and reasonable pricing.

If you need cost/price to ascertain that a qualifying offer[or] likely has fair and reasonable pricing [in order to determine that it is a qualifying offeror, for award] - duh-  then you have evaluated pricing for selection.

C Culham said:

I will say that if the GAO were to hold to your suggestion they would be an advocate for awarding multiple award IDIQ's with no pricing in them.

That is correct. There is no “pricing” in the base ID/IQ. The price competition and pricing is at the order level. See 15.306(c) (ii) (B)

“  (B) If the contracting officer chooses not to include price or cost as an evaluation factor for the contract award, in accordance with paragraph (c)(1)(ii)(A) of this section, the contracting officer shall consider price or cost as one of the factors in the selection decision for each order placed under the contract.”

Carl, it is a qualification based selection (QBS). It’s not a “best value selection” and isn’t within the “Best Value Continuum”.

EDIT: There doesn’t necessarily have to be “pricing” in an ID/IQ. The USACE has been awarding design-build MATOCS for at least 15-17 years. When using the Two Phase D-B selection process, Phase 2 would typically be competed for award in a pool based upon a “seed task order”, One selectee would receive the first order. But the seed task order competition pricing isn’t incorporated into the base contract award for any selectee. All pricing is generally done at the individual task order level competition. The USACE also has construction MATOCs that are awarded similarly.

Here in this thread, the government goes a step further and awards based upon qualifications.

The weirdest aspect of awarding to qualified offerors is that the government has to award to ALL qualifying offerors.

joel hoffman said:

That is correct. There is no “pricing” in the base ID/IQ. The price competition and pricing is at the order level. See 15.306(c) (ii) (B)

joel hoffman said:

The weirdest aspect of awarding to qualified offerors is that the government has to award to ALL qualifying offerors.

So how does a CO determine the caveat of fair and reasonable?  I guess at acquisition planning stage so now we have price competition before solicitation.  Lordy!

As confusing as awarding tens of contracts that will hardly get used.

joel hoffman said:

There doesn’t necessarily have to be “pricing” in an ID/IQ.

So whats the basis for determing obligation of a minimum?

On 8/26/2021 at 3:59 PM, C Culham said:

So how does a CO determine the caveat of fair and reasonable?  I guess at acquisition planning stage so now we have price competition before solicitation.  Lordy!

@C CulhamSee FAR 16.504(a). An IDIQ contract must include a minimum and a maximum quantity, which may be expressed as a dollar amount. The amounts of the minimum and the maximum may be established in any reasonable way, and need not be the product of quantity times price.

Now see PL 114-328, Sec. 825 and 10 USC 2305(a)(3)(D). The statute and FAR 15.304(c)(1)(ii) eliminate the need to establish price reasonableness at the time of contract award. Price reasonableness is determined for each task order. But in order to declare that an offeror is a "qualifying offeror," the CO must first determine that there is no reason to believe that it would be likely to offer other than fair and reasonable pricing. See the statute, 10 U.S.C. 2305(a)(3)(D), and the definition of "qualifying offeror" in FAR 2.101.

Note that FAR FAR 15.304(c)(1)(ii)(A)(2) applies the new rule to contracts for services. It makes sense to eliminate advance pricing for IIDIQ contracts for services under which each task order will specify a different effort. This also eliminates the need to establish hourly labor rates for future pricing purposes.

If only the law and the FAR has been written to require award to a reasonable number of offerors, instead of to "each and all qualifying offerors."

See for example: https://www.taftlaw.com/news-events/law-bulletins/new-rule-changes-evaluation-factor-requirements-for-multiple-award-contracts

@Vern Edwards Thanks I do get it but am hung up on the "would be likely".

C Culham said:

I do get it but am hung up on the "would be likely".

@C CulhamDon't be hung up. Do what I do. When a reg doesn't makes sense to me—there's no official explanation and no case law interpretation—I decide what I want it to mean, what works in my circumstances. Then I construct an argument that supports my interpretation and "ride, boldly ride" seeking for El Dorado.

Would be likely = I think so, because they didn't give me any reason to think otherwise.

Easy, peasy.

Vern Edwards said:

I decide what I want it to mean, what works in my circumstances

No argument but an honest question.  Do you think FAR 1.102(d) fits in such situations where the FAR is conflicted?

I think it does.

C Culham said:

Do you think FAR 1.102(d) fits in such situations where the FAR is conflicted? I think it does.

I don't. When FAR appears to be conflicted, I think the resolution is a matter of statutory and regulatory interpretation, subject to the canons of interpretation. 

See Scalia and Garner, Reading Law: The Interpretation of Legal Texts (2012), § 27, Harmonious-Reading Canon; § 28, General/Specific Canon; and § 29, Irreconcilability Canon.

If an agency thinks the FAR is ambiguous or conflicted and decides to proceed based on FAR 1.102(d), treating the matter as one of discretion, and if the agency's action is challenged in court, the court will interpret the regulation in accordance with the canons. It will not treat the matter as one of discretion granted by FAR 1.102(d) or 1.102-4(e).

BTW, the Court of Appeals for the Federal Circuit cited Reading Law in an opinion it issued this week, a link to which was posted on the Wifcon home page. It has been cited in 1,222 Federal court cases overall and in 618 appellate court cases.

C Culham said:

No argument but an honest question.  Do you think FAR 1.102(d) fits in such situations where the FAR is conflicted?

I think it does.

Yes, it does. The intent is clear. it is specifically addressed in both the law at 10 USC 2305(a)(3) (C) and in The FAR at 15.304 (c) that award will be made to each/all qualifying offeror(s); a qualifying offeror means “an offeror that—

(i) is determined to be a responsible source;

(ii) submits a proposal that conforms to the requirements of the solicitation; and

(iii) the contracting officer has no reason to believe would likely offer other than fair and reasonable pricing”;

“conforms to”, in plain language, means that it meets the requirements. It does not mean “exceeds” the requirements or is “on of the most highly rated offerors”.

It is also clearly stated in the law and in FAR that this is for the same or similar services where the government won’t evaluate price for award of the ID/IQ and the Federal Government shall consider cost or price in conjunction with the issuance pursuant to section 2304c(b) of this title of a task or delivery order under any contract resulting from the solicitation.

I noticed that the law is a bit ambiguous as to whether this exemption might apply to a delivery order contract: 

“(C )If the head of an agency issues a solicitation for multiple task or delivery order contracts under section 2304a(d)(1)(B) of this title for the same or similar services and intends to make a contract award to each qualifying offeror—…

FAR 1.102(d):

“(d) The role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer's needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.”

Thus, the conditions necessary for discretion under 1.102(d)  to award only to a limited number of qualifying offerors are not present. You need to eliminate conflicting language and procedures in the solicitation. 

Note: I’m writing this during the time that Vern has responded. I haven’t read his response yet.

joel hoffman said:

Yes, it does.

@joel hoffmanIf by "Yes, it does" you mean that it becomes a matter of agency discretion pursuant to FAR 1.102(d), then I disagree with you, as should be apparent from my last post.

joel hoffman said:

I noticed that the law is a bit ambiguous as to whether this exemption might apply to a delivery order contract

The statute is not ambiguous about its application to delivery order contracts.

Technically, Vern is correct because the correct, authorized procedures ARE addressed in both FAR and the law.  So I read 1.102 (d) to say that there is NO permissible authority to use procedures that are conflicting with the stated exception.

Note: I wrote this after reading Vern’s previous response while And while Vern posted his response to me above.

Vern Edwards said:

@joel hoffmanIf by "Yes, it does" you mean that it becomes a matter of agency discretion pursuant to FAR 1.102(d), then I disagree with you, as should be apparent from my last post.

The statute is not ambiguous about its application to delivery order contracts.

To clarify, I meant that, conversely, it means that, per FAR 1.102(d), that it DOES NOT become a matter of agency discretion. 

The Statute at 10 USC 2305(a)(3) (C) does both refer to delivery order or task order contracts  but limits the exception to “for the same or similar services”. It doesn’t mention “or property”, as stated in its reference to 10 USC 2304(a) (d)(1)(B):

“(B) if the solicitation states that the head of the agency has the option to do so, to award separate task or delivery order contracts for the same or similar services or property to two or more sources.”

Please forgive me if my reference numbers are incorrect. I have to keep flipping between screens on an iPhone and scroll up and down and it’s darned difficult to decipher the paragraph numbering system.

Vern Edwards said:

The statute is not ambiguous about its application to delivery order contracts.

Vern, please clarify. You said earlier that the exception to evaluating price or cost for the award of MATOCs is only applicable to MATOCS “for the same or similar services”. Maybe my assumption that  delivery order contracts are for [non real] property is incorrect.

FAR 2.101 definition: “delivery order means an order for supplies placed against an established contract or with Government sources.”

@joel hoffmanHere is what I said:

Quote

Note that FAR FAR 15.304(c)(1)(ii)(A)(2) applies the new rule to contracts for services. It makes sense to eliminate advance pricing for IIDIQ contracts for services under which each task order will specify a different effort. This also eliminates the need to establish hourly labor rates for future pricing purposes.

I did not say exclusively to contracts for services, but that is probably what I meant at the time, because I was quoting from FAR 15.304, and in FAR services are generally distinguished from supplies.

But here is the statute, PL 114-328, Sec. 825, 

Quote

(C) If the head of an agency issues a solicitation for multiple task or delivery order contracts under section 2304a(d)(1)(B) of this title for the same or similar services and intends to make a contract award to each qualifying offeror...

Why assume that "same or similar services" in the statute refers to services as used in the FAR? (FAR does not define "services," only "service contracts.") Congress does not always adhere to FAR terminology (e.g., "property" instead of "supplies").

What if, reading Sec. 825 as a whole pursuant to the Whole-Text Canon, and applying the Harmonious-Reading Canon, a court were to interpret "same or similar services" as including the "service" of delivering property (supplies) on order?

This kind of thing is a matter for lawyers to argue and judges to decide in accordance with the canons of interpretation. A CO reading FAR 15.304(c)(1)(ii) and trying to decide whether it could be applied to acquisitions for delivery-order contracts should make an interpretation and justify it. If the CO thinks the FAR is ambiguous, and so cannot decide, they should ask for a legal opinion as to its proper interpretation. The CO should not say that the FAR is ambiguous or conflicting and then assert that FAR 1.102(d) grants them the discretion to decide as they see fit.

Make sense?

joel hoffman said:

“(C )If the head of an agency issues a solicitation for multiple task or delivery order contracts under section 2304a(d)(1)(B) of this title for the same or similar services and intends to make a contract award to each qualifying offeror—…

10 USC 2305(a)(3) (C) may be poorly worded. 

Vern Edwards said:

Here is what I said:

I did not say exclusively to contracts for services, but that is probably what I meant at the time, because I was quoting from FAR 15.304, and in FAR services are generally distinguished from supplies.

But here is the statute, PL 114-328, Sec. 825, 

Why assume that "same or similar services" in the statute refers to services as used in the FAR? (FAR does not define "services," only "service contracts.") What if, reading Sec. 825 as a whole pursuant to the Whole-Text Canon, and applying the Harmonious-Reading Canon, a court were to interpret "same or similar services" as including the "service" of delivering property (supplies) on order?

This kind of thing is a matter for lawyers to argue and judges to decide in accordance with the canons of interpretation. A CO reading FAR 15.304(c)(1)(ii) and trying to decide whether it could be applied to acquisitions for delivery-order contracts should make an interpretation and justify it. If the CO thinks the FAR is ambiguous, and so cannot decide, they should ask for a legal opinion as to its proper interpretation. The CO should not say that the FAR is ambiguous or conflicting and then assert that FAR 1.102(d) grants them the discretion to decide as they see fit.

Make sense?

It made sense to me that it appears to be ambiguous and I think from your post that you might agree that it is ambiguous.

The reference at 10 USC 2304a(d)(1)(b) allows multiple contract awards for  delivery order or service contracts “for the same or similar services or property”. 

The exception at 10 USC 2305(a)(3) (C) applies specifically to contracts for “the same or similar services”.

joel hoffman said:

It made sense to me that it appears to be ambiguous and I think you might agree that it is ambiguous.

I do not think it's intrinsically ambiguous. It seems ambiguous only in light of what we know from extrinsic texts, i.e., the FAR.

Look, the statute expressly says:

Quote

If the head of an agency issues a solicitation for multiple task or delivery order contracts under section 2304a(d)(1)(B) of this title for the same or similar services and intends to make a contract award to each qualifying offeror—

“(i) cost or price to the Federal Government need not, at the Government’s discretion, be considered under clause (ii) of subparagraph (A) as an evaluation factor for the contract award...

The statute refers to "delivery order contracts" six times. In order to insist that under FAR the exception applies only to task order contracts (services) and not to delivery order contracts (supplies) you have to ignore part of the plain language of the statute, all on the basis of only one word.

Good luck with that kind of argument, but feel free to insist.

[I wrote this post while Vern wrote his immediate preceding post and doesn’t respond or refer to it]

Heck, during my participation on the DBIA** Federal Contracting Practices committee for the past several years, we are often asked to review and comment on proposed legislation. The proponents of such legislation and the legislative committee staffers often don’t really understand the full context or ramifications of what they are writing. In some cases, the final legislation backfired on the original proponents’ intent due to numerous, often conflicting reviewer responses or opinions.

I asked some of our DBIA committee members as well as the DBIA staffer if we reviewed the proposed legislation to allow an exemption to the requirements to evaluate cost and pricing and to include pricing in the MATOC award where it isn’t practical and/or competitive establishment of pricing at the task order level is more appropriate.

The DBIA and the Design-Build industry promote, where appropriate, as a “best practice”,  the concept of “Qualification Based Selection” of the most highly qualified DB team or teams (no pricing and little or no preliminary design) as distinguished from “Best Value selection (where they refer to the term “best value” as meaning selection based upon both technical/qualifications and price).

The legislation as enacted doesn’t fit their concept of QBS and none of us remember if we reviewed and provided feedback on it.  

**DBIA is the Design-Build institute of America. Membership includes personnel from public: State, local and Federal government agencies, private owners, A/E firms, construction contractors, specialty subcontractors and suppliers,  integrated design-build firms, college students and various Universities.

Vern Edwards said:

I do not think it's intrinsically ambiguous. It seems ambiguous only in light of what we know from extrinsic texts, i.e., the FAR.

Look, the statute expressly says:

The statute refers to "delivery order contracts" six times. In order to insist that under FAR the exception applies only to task order contracts (services) and not to delivery order contracts (supplies) you have to ignore part of the plain language of the statute, all on the basis of only one word.

Good luck with that kind of argument, but feel free to insist.

I thought it applied to both until your earlier mention in this thread that it was for services. Then,  I noticed where one section at 10 USC 2304 mentioned awarding multiple delivery order or task order contracts for both “the same or similar services or property”  and then the other at 10 USC 2305 limited the exception  to contracts for “the same or similar services”.

It makes sense that it could work for supplies and makes even more sense to use the exception for supplies. Why establish (maximum) prices in an ID/IQ for supplies that may include long term pricing for numerous items and where pricing is volatile/fluid?

EDIT: I have long felt that locking in maximum prices for supplies at the contract level is somewhat problematic. A contractor has to establish competitive prices but cover itself for long or even short term term pricing under ever changing market conditions.

The government buyer’s perspective may only be that those published prices  must be “fair and reasonable” or they might have some visibility of the sales prices of some past purchases, not knowing the specific circumstance of the earlier purchases. They might have no other familiarity with current pricing. That is evident to me from many posts in the WIFCOM Forum.

joel hoffman said:

It makes sense that it could work for supplies and makes even more sense to use the exception for supplies. Why establish (maximum) prices in an ID/IQ for supplies that may include long term pricing for numerous items and where pricing is volatile/fluid?

I can think of many instances in which it  makes no sense to evaluate price (as opposed to estimated cost) in complex acquisitions. What we really need is a change to the requirement in FAR 15.304(c)(1)(i) to evaluate price in "every" source selection. We need freedom to use qualifications-based contractor selection, with one-on-one negotiation of contract terms, including price, with the prospective selectee.

There are many kinds of acquisitions in which head-to-head price competition is absurd.

The idea of seeking price competition in every competitive negotiated acquisition through solicitation of competitively-priced proposals is an outdated 19th Century holdover. Even the new FAR 15.304(c)(1)(ii) exception presumes such price competition for task orders. It is a needlessly costly procedure.

Vern Edwards said:

I can think of many instances in which it  makes no sense to evaluate price (as opposed to estimated cost) in complex acquisitions. What we really need is a change to the requirement in FAR 15.304(c)(1)(i) to evaluate price in "every" source selection. We need freedom to use qualifications-based contractor selection, with one-on-one negotiation of contract terms, including price, with the prospective selectee.

There are many kinds of acquisitions in which head-to-head price competition is absurd.

The idea of seeking price competition in every competitive negotiated acquisition through solicitation of competitively-priced proposals is an outdated 19th Century holdover. Even the new FAR 15.304(c)(1)(ii) exception presumes such price competition for task orders. It is a needlessly costly procedure.

I agree with you, except I don’t have a problem with price competition in a MATOC fair opportunity task order competition. I have little faith in the competency of the Federal work force to effectively negotiate or bargain for good prices or for better performance.

Many KO’s are not subject area experts for various acquisitions-especially for engineering, construction or, in particular,  for design-build processes, unique differences between design-bid-build and D-B and for the technical design aspects of a proposal.

Heck, many car dealers are now eliminating negotiable pricing (“no haggle pricing”, etc.  prices). Furniture markups are ridiculously high and there are perpetual, almost meaningless  “sales”.

I’ve noted before in the Forum where a Korean, fellow construction contract administrator told me to just “use your imagination” when I would ask any questions about our Korean contractors’ change order proposal pricing.

He said that Americans are “too trusting” and reluctant to negotiate prices. He said Koreans don’t accept any prices at face value and “negotiate for everything, including a loaf of bread”.

I’m convinced that many KO’s have little knowledge or perspective about even “bargaining” and “bargaining for better performance” which is now mentioned and emphasized in FAR 15.306(d), (d)(2) and (d)(4) as part of the 1996-1997 FAR 15 rewrite. I’ve been told by numerous KO’s that we can’t discuss objectionable or undesirable aspects of an offeror’s proposal if they meet the minimum requirements because it is “technical transfusion” (not usually) or “technical leveling” (no longer specifically prohibited). Those are both legacy terms from FAR Part 15 prior to 1997, where discussion regarding discussion emphasized the “do nots” rather than the “do’s”. Younger KO’s are learning out dated legacy practices by others.

My D-B contracting teaching counterparts do not mention or emphasize bargaining and teach avoiding getting into much price discussions. Geez!

Just my opinion.

…And based upon observation, bolstered by a recent class on the traits and characteristics of the different generations of Americans, there seems now to be a preference to text or otherwise communicate by other than oral face to face or even telephonic means. Letter writing is becoming rare. 

Just my opinion.

Vern Edwards said:

I don't

Thank you