Special Standards of Responsibility

I am not familiar enough with the literature to make a recommendation.  However, those few sentences you found might be enough for you to start a meaningful conversation.  A special standard of responsibility is simply a must-have for an offeror to be selected, and you declare it up-front (in your solicitation) so everyone knows.  By making a matter a special standard of responsibility (and identifying it as such in your solicitation), you remove it from the comparative tradeoff evaluation -- doing so can be very useful sometimes.  Examples:  you might require that the offeror have a particular license or permit by the date of proposal submission, or you might require that the offeror have a certain experience.  These are pass-fail items.  The contracting officer has a lot of discretion here.

If you share your idea, you can get feedback here.

Here's something you can read:  https://sgp.fas.org/crs/misc/R40633.pdf

Thanks JJ for that link. That did answer a few questions that I had such as discretion in allowing contractors to rely on subs to meet special standards.

My situation is we’re constructing a tunnel on state owned land. There is a spec requiring the contractor to submit a blaster in charge certified in the state of XX and have 5 years blasting experience at least 30 days before they start blasting. What we don’t want to happen is we get to the point in the schedule where blasting should start and the contractor fails to find and furnish a blaster meeting these requirements.

So I wanted to solicit using sealed bidding with a special standard of responsibility to require the blaster in charge be certified and have 5 years’ experience now instead of waiting until 30 days before blasting starts.  

I’d have to wordsmith it but I was going to say something like:

To be determined responsible, the Offeror must meet the general standards of responsibility IAW with FAR 9.104-1 and the following special standards of responsibility.

1. Blaster in charge licensed in the state of the tunnel construction.

2. Blaster in charge has 5 years of blasting experience.

The apparent low bidder must submit documentation showing they can meet, or retain a subcontractor that can meet, the above special standards.

I can’t figure out how that’s different then an LPTA evaluation factor. Are there any kind of limits on what we can use for special responsibility standards so long as they are a go no/go?

If you are doing sealed bidding, you cannot do LPTA and you cannot have a technical proposal. However, with sealed bidding, you may require information to support a responsibility determination -- this will not be a technical proposal, but will simply be information to be used in the responsibility determination.

I do not think your approach or your text will solve your problem. Anybody can submit a document saying that they can get a blaster in the future. Don't you want to require, as a matter of responsibility, that the company already have demonstrated experienced using blasters who are certified and who have 5 years of experience along with timely availability?

In a construction contract, the contractor has to submit and continually update a schedule, all to the satisfaction of the contracting officer.  You can insist (maybe as an SCR) that blaster availability be an item on the schedule, and that it appear at least 90 days before blasting is scheduled to start.  You can remind the contractor of its obligation maybe two weeks before this 90-day deadline, and on day 89 you send a cure notice (with copy to the surety) if a blaster has not been made available.  The surety will make sure the problem is solved.

ji20874 said:

If you are doing sealed bidding, you cannot do LPTA and you cannot have a technical proposal.

You could if you do two-step sealed bidding in accordance with FAR Subpart 14.5.

I understand there is a difference between sealed bidding and LPTA. What I meant was how is the special responsibility standard, as drafted into a solicitation, different then an LPTA evaluation factor. Said another way if I were to solicit LPTA I would have what I’m calling a special standard of responsibility styled as an evaluation factor with no special responsibility standard.

I’ve seen things in negotiated procurements where the proposed personnel are required to be the actual people used during performance. Is that something that can be required? I don’t know but I’m leaning towards no.

Again this is all new to me and i'm going off 4 or 5 sentences of information that i was able to find.

I’ve not seen Sureties do a whole lot when we’ve run into issues. They’ll argue to days end to not pay for completion contracts, but my experience is a very small sample.

Sure, they (sureties) will argue when you squeeze them for money -- but that is not what we're talking about.  We're talking about simply informing the surety that the contractor is failing to comply with the contract while there is still time for a recovery.  My experience is that sureties take the contractor's contract compliance seriously.

Speaking of those sentences you read, doesn't one of them require you to explicitly label special standards of responsibility as such in the solicitation?  If you explicitly label them that way, as the FAR requires, then you will have separated them from the evaluation factors.  So you need to decide -- do you want these matters handled as part of the responsibility determination, or as part of the proposal evaluation?  Take your pick, but remember that these are different.

ji20874 said:

Take your pick, but remember that these are different.

Right! let me think this through a little further and we'll see where I end up. I may be creating a potential problem out of nothing.

Best wishes!

If you talk to others in your office, be mindful that some (many?) of them will not understand the difference between evaluation and responsibility -- this may include superiors and reviewers and policy experts.  Maybe you can somehow help them understand correct and fundamental principles -- but if not, I will be happy if only you do.

dsmith101abn said:

Is there any decent read that explains special standards of responsibility? I found an old Wifcon forum, but outside the four sentences in the FAR and one sentence at DAU Acquipedia I could not find anything that expands on the framework.

I have no experience using special standards of responsibility and was looking for something to read. My agency does budget money for literature and things of this nature if there’s something not out there publicly available.

There's a tunnel project I am working on and I want to explore an idea I have but don't feel I know enough about the topic at this time.

See Chapter 4 of Formation of Government Contracts, Fourth Edition, pp. 428-434.

Don Mansfield said:

See Chapter 4 of Formation of Government Contracts, Fourth Edition, pp. 428-434.

Thanks Don. I found a 3rd edition laying around my office and found the section starting on page 422. I'll read that while i'm thinking about this, and thank you too JJ for the discussion.

@dsmith101abn

Quick thought that might relate.  Dated decision but it may lead you in the right direction.

https://www.gao.gov/products/b-228402

dsmith101abn said:

I’ve seen things in negotiated procurements where the proposed personnel are required to be the actual people used during performance. Is that something that can be required? I don’t know but I’m leaning towards no.

Yes, you can require the contractor to use the key personnel and key subtractors that were proposed and evaluated. However, we realized that that isn’t always possible.  So we stated that any proposed substitutions were subject to the KO’s approval.  The  qualifications of those originally proposed and evaluated key personnel and subcontractors would become the minimum qualifications for any proposed substitute. Intended to control instances of proposing the A team to win the contract, then subbing the B or C team. Some of the USACE has used that clause for about 30 years for construction and design-build contracts when key personnel and/or key subs were important discriminators. It could also be used where minimum qualifications of specific key personnel or a specialty sub are necessary.

We started teaching it in 1997 in the Design-Build PROSPECT course and it was adopted Corps-Wide in 2014 for design-build contracts.

Edit: It would also be appropriate where a prime uses the experience and/or past performance of a proposed sub teaming partner to qualify or provide satisfactory experience or performance record to win a contract.

joel hoffman said:

Yes, you can require the contractor to use the key personnel and key subtractors

Could i require this if i didn't evaluate a proposal IAW 15.3 but a bid IAW 14 using a special standard of responsibility?

@dsmith101abnYou should know that the GAO has long referred to special standards of responsibility as "definitive" standards or criteria of responsibility. See e.g., Shimmick Construction Co., Inc., B-420072.3, March 17, 2022. Footnote:

Quote

Definitive responsibility criteria are specific and objective standards established by an agency for use in a particular procurement to measure a bidder's ability to perform the contract. Federal Acquisition Regulation (FAR) 9.104–2. These special standards of responsibility limit the class of bidders to those meeting specified qualitative and quantitative qualifications necessary for adequate contract performance. M & M Welding & Fabricators, Inc., B–271750, July 24, 1996, 96–2 CPD ¶37 at 2.

See also Navarre Corp., B-419088.4, June 29, 2022:

Quote

Furthermore, the solicitation's instructions do not constitute a definitive responsibility criterion as the protester also suggests. Definitive responsibility criteria are specific and objective standards, established by an agency for a particular procurement, for use in measuring a bidder's ability to perform the contract. Reyna–Capital Joint Venture, B–408541, Nov. 1, 2013, 2013 CPD ¶253 at 2. These special standards limit the class of bidders to those meeting specified qualitative and quantitative qualifications necessary for adequate contract performance. Id.; NEIE Med. Waste Servs., LLC, B–412793.2, Aug. 5, 2016, 2016 CPD ¶213 at 4. Thus, definitive responsibility criteria involve a vendor's eligibility for award and not its performance obligations under the contract. ARI Phoenix, Inc., B–416878, Oct. 24, 2018, 2018 CPD ¶363 at 2–3.

Here, the language regarding vendors' financially responsibility is included in the RFQ's instructions to vendors-not in the evaluation criteria-and does not set out a specific, objective standard for measuring a vendor's ability to perform. Moreover, the RFQ does not otherwise require vendors to establish their qualifications to perform these requirements prior to award. Thus, the solicitation language in question is not a definitive responsibility criterion. As discussed above, the provision expresses, in general terms, a consideration which is encompassed by the contracting officer's subjective responsibility determination. Our Bid Protest Regulations preclude us from reviewing an affirmative responsibility determination absent a showing that the contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or regulation. See Oceaneering Int'l, Inc., B–278126, B–278126.2, Dec. 31, 1997, 98–1 CPD ¶133 at 11–12. Since these circumstances are not present here, we will not consider Navarre's claim. 4 C.F.R. § 21.5(c). As such, this allegation is dismissed.

The earliest such mention was in Harris System Termite Co., B-185659, Feb. 19, 1976.

See Feldman, 2 Government Contract Awards: Negotiation and Sealed Bidding § 18:10, Definitive responsibility criteria.

dsmith101abn said:

I understand there is a difference between sealed bidding and LPTA. What I meant was how is the special responsibility standard, as drafted into a solicitation, different then an LPTA evaluation factor.

The difference has been explained by Feldman, cited in my earlier post:

Quote

The above-quoted term [definitive responsibility criteria] refers to specific, objective, and mandatory Request for Proposals (RFP) standards established by the agency that must be documented in the offer and that measure an offeror's ability to perform the contract, as stated in certain qualitative or quantitative requirements. These criteria also are distinct from the technical evaluation criteria and the offeror's performance obligations in the proposed contract. Put another way, a definitive responsibility criterion is a precondition for award established in the RFP as part of the selection process, but that does not affect the relative rating of offerors, and that places the competing firms on notice that the class of prospective contractors is limited to those whose proposals can document the ability to meet the applicable standards. When the agency rejects an offer because the proposer has failed to meet a definitive responsibility criterion, the agency is rejecting the firm on responsibility grounds and not because the offer is unacceptable.

Footnotes omitted.

In a 1992 article entitled, "Definitive Standards of Responsibility: How To Shoot Oneself In the Foot," Professors Cibinic and Nash wrote:

Quote

We are always amazed at the great effort procuring agencies expend in making things difficult for themselves. Use of so-called “definitive standards” of contractor responsibility is one example of this “lemming instinct.” When definitive standards are used, Contracting Officers (COs) give up the wide discretion that they are accorded in making responsibility determinations under the general standards of responsibility or of comparatively evaluating competitive proposals...

*   *   *

Our advice to COs is to shun definitive standards of contractor responsibility. They only serve to limit your discretion. Any goals you can accomplish through use of definitive standards you can accomplish better with general standards. You can determine offerors to be nonresponsible if you have legitimate doubts as to their ability to meet contract requirements.

dsmith101abn said:

Could i require this if i didn't evaluate a proposal IAW 15.3 but a bid IAW 14 using a special standard of responsibility?

Yes...per my earlier post....if you read the decision a special standard of responsibility was required - a certification which the BIDDER (it was a sealed bid) did not provide at bid and could not provide in a reasonable time  prior to award was found non-responsible and the GAO agreed in the determination.  there is this footnote in the decision -

While not identified in the IFB as a special standard of responsibility, the contractor was required by the IFB to begin performance on the date of award with an approved laboratory. All parties have treated this requirement as a condition that had to be satisfied to be eligible for award; we adopt this view.

So my thoughts -

Place in the IFB a "Special standard of responsibility"  Award will only be made to a bidder that has a certified (by what entity) blaster with 5 years of experience.  Evidence of this special standard must be provided with bid.   Failure to provide evidence of the blaster certification/experience at bid opening will be a basis for a non-responsibility determination.   

In your Special Contract Requirements put in something to the effect that -Failure to retain the certified blaster offered in the contractors bid and that was the basis for award shall be retained by the contractor through completion of all blasting required by the contract.  Failure to meet this special contract requirement shall be basis for termination for default of the contract.

Document in your solicitation/contract file WHY the special responsibility standard is necessary - borrowing from the FAR use language that - experience has demonstrated that unusual expertise is needed for adequate and safe contract performance. 

And for a read on responsibility and special responsibility that also provides some valuable footnotes with regard to special standards take a look here -

https://sgp.fas.org/crs/misc/R40633.pdf

dsmith101abn said:

Could i require this if i didn't evaluate a proposal IAW 15.3 but a bid IAW 14 using a special standard of responsibility?

dsmith101abn said:

So I wanted to solicit using sealed bidding with a special standard of responsibility to require the blaster in charge be certified and have 5 years’ experience now instead of waiting until 30 days before blasting starts.  

I’d have to wordsmith it but I was going to say something like:

To be determined responsible, the Offeror must meet the general standards of responsibility IAW with FAR 9.104-1 and the following special standards of responsibility.

1. Blaster in charge licensed in the state of the tunnel construction.

2. Blaster in charge has 5 years of blasting experience.

The apparent low bidder must submit documentation showing they can meet, or retain a subcontractor that can meet, the above special standards.

This documentation doesn’t require an apparent low bidder to commit to any specific blaster in charge or a specific subcontractor or list of subcontractors that can meet the above special standards. It’s actually pretty wishy-washy and indefinite.

As for furnishing documentation with a one step sealed bid for a public bid opening, I’m not certain that this is proper for determination of responsibility, where the basis of award is based upon price and other price related factors. And you are asking for the information from all bidders, not just the apparent successful bidder.

I suppose that one could require specific information concerning a specific blaster in charge or multiple alternates or for specific subs or alternates in step 1 of a two step sealed bid process. I’m not sure of the effectiveness of this if you would limit the prime to one specific sub prior to development of its bid price in step 2. 

However, you could also do this in one step LPTA, RFP.  Two primary distinctions between IFB and RFP are the public bid opening for IFB (or step 2 of 2 Step IFB) and that in an an RFP, the offeror can withdraw its proposal anytime before notice of award.

joel hoffman said:

As for furnishing documentation with a one step sealed bid for a public bid opening, I’m not certain that this is proper for determination of responsibility, where the basis of award is based upon price and other price related factors.

Please read the GAO decision I posted previously.  Also please read the document I referenced in my most recent post especially the footnotes related to special responsibility.   The one reference I provided and those in the footnotes are with regard to sealed bids.  A contractor must be responsible to be awarded at the lowest price.

joel hoffman said:

As for furnishing documentation with a one step sealed bid for a public bid opening, I’m not certain that this is proper for determination of responsibility, where the basis of award is based upon price and other price related factors.

There is no prohibition against requesting responsibility information to be submitted with the submission of sealed bids.

I’ve read all of the posts in this thread and most of the cited references. While I’m not going to try and shoot myself in the foot or make anything more difficult for myself, I’m going to try using a definitive or special standard or responsibility and include some requirements in the SCRs along with describing how substitutions might work.  

Right or wrong beneficial or not I’m doing it.

While my current office deals with a fairly large dollar amount of construction work, our contracting office only has 6 other COs, most with under 5 years’ experience, so I appreciate everyone’s thoughts, references and inputs.   

If anyone cares to know I can post my outcome in the What Happened thread. Not a lot of posts in there so don’t know if that interests anyone.

dsmith101abn said:

Right or wrong beneficial or not I’m doing it.

😈 Oh yeeeessss.

Vern Edwards said:

There is no prohibition against requesting responsibility information to be submitted with the submission of sealed bids.

Thanks.

Dsmith wants the blaster in charge to have the required experience and certification “now” rather than a month prior to the blasting operations. Is “now” going to be defined as at time of providing the documentation at bid opening or defined as when otherwise providing the documentation prior to award?

I believe that dsmith’s  description of documentation showing that they CAN meet,  or CAN retain a subcontractor that can meet, the above special standards should also demonstrate that they both will (?) do(?) possess the ability (and required qualifications) to perform the work (themselves or by subcontract) and the determination by a commitment or explicit arrangement that (is in existence ?), (will be in existence at the time of award ?) to use the resources to perform the required work.

Have to carefully think about how to word the required documentation.

dsmith101abn said:

I’ve read all of the posts in this thread and most of the cited references. While I’m not going to try and shoot myself in the foot or make anything more difficult for myself, I’m going to try using a definitive or special standard or responsibility and include some requirements in the SCRs along with describing how substitutions might work.  

Right or wrong beneficial or not I’m doing it

Exactly the way Contracting Officers should think and act.  You’ve researched, analyzed, and now taking appropriate actions based on your judgement as the best choice.

formerfed said:

Exactly the way Contracting Officers should think and act.  You’ve researched, analyzed, and now taking appropriate actions based on your judgement as the best choice.

I don't know about that. The CO today is a player, not a dictator. The CO's authority comes from knowledge and expertise, not bluster and insistence.

A day ago dsmith101abn was clueless about special ("definitive") responsibility criteria. Hardly anyone who posted in response to his query knew much about the topic or its literature. Yet a couple of days later he is ready to just do it, "Right or wrong beneficial or not," come hell or high water, despite a warning from the two most distinguished government contracting experts who ever lived. Steven Feldman's discussion of the topic is 16 pages long. Definitive responsibility criteria have been mentioned in 1,642 GAO decisions.

dsmith101abn might be jumping into Dien Bien Phu, otherwise known as "Hell in a very small place."

But let's call it innovation.

I wish him the best.

Vern Edwards said:

dsmith101abn might be jumping into Dien Bien Phu, otherwise known as "Hell in a very small place."

But let's call it innovation.

I wish him the best.

I agree.

dsmith has a tunneling project of some sort involving rock excavation and intends to use the IFB process with public bid opening.  I’m guessing that IFB’s are the norm for d smith’s procurement methods. 

dsmith wants the contractor to show that it has a blaster in charge with the required experience and certification “now” rather than a month prior to the blasting operations. We know next to nothing about the scope of the project or when, in the schedule after award, the blasting operation would occur.

dsmith wants to use a special responsibility factor for award. This would require the contractor show (identify?) that it has an experienced and certified blaster or has a commitment or explicit arrangements for a named, experienced  blasting subcontractor with a qualified blaster in charge prior to award. In addition,  d smith would like to control substitution of a named blaster in charge or qualified subcontractor after award.

Depending upon what “now” means, dsmith might require that all bidders submit the information with their bids or might require the apparent low bidder to submit it during the responsibility determination process.

dsmith is going to have to require more than  documentation showing that the bidder CAN meet,  or CAN retain a subcontractor that can meet, the above special standards at some point prior to the award. What documentation to require will require careful thought.

For a “now” determination, I believe that the apparent successful bidder must show that it has a qualified blaster in charge to perform the work themselves or by subcontract with such a blaster in charge. It must also show the determination, by a commitment or explicit arrangement to use the quailed resources.
(Source: Formation of Government Contracts , Chapter 4 Contractor Qualifications, I. Responsibility, A. Standards of Responsibility, 1. Performance-Related Standards of Responsibility, in particular, b. Special Standards.

In my opinion it would be more practical for the apparent low bidder to be able to provide documentation after the bid opening, as part of the responsibility determination process.

At any rate, we don’t know the full scope or nature of the work, when the blaster in charge would be involved or when blasting operations will occur in the overall project schedule or the overall acquisition strategy. I expect that the contract would require submission of a blasting plan.

And since there are numerous GAO decisions, Steve Feldman’s 16 page discussion on the subject and other sources, dsmith should not rely on this Forum or me for specific a specific solution.

I worked in conjunction with Steve Feldman over the course of 10 years in Huntsville, AL. from 1997-2007. Steve was (is?) a very capable and dedicated attorney in the USACE Huntsville Engineering and Support Center, Office of Counsel. I don’t have access to his discussion on the subject but I would have consulted with him or others in the Office of Counsel for such matters when I worked there.

To the best of my knowledge, the USACE Engineering and Support Center does not use the IFB procurement method. I suspect that dsmith’s organization regularly uses that method for construction contracting.

There is no need for a special ("definitive") standard of responsibility.

If the solicitation/contract specify that the blaster must have certain credentials, then the apparent low bidder's responsibility can be established under the general standards of responsibility. See FAR 9.104-1(e), 9.104-3(a), and 9.104-4. Blasting in tunnel construction is not an "unusual expertise." dsmith101Abn would have known that if he had read FAR carefully and done enough research.

Besides, the contractor might use the boring method of tunnel construction instead of blasting.

https://www.fhwa.dot.gov/bridge/tunnel/pubs/nhi09010/tunnel_manual.pdf

Vern Edwards said:

I don't know about that. The CO today is a player, not a dictator. The CO's authority comes from knowledge and expertise, not bluster and insistence

True.  A probably overworked saying today is “contracting is a team sport.”

But I get so annoyed at COs who won’t make decisions or do things without checking first with their management, policy/review personnel, lawyer, etc. on even the most basic issues.  This is one reason why PALT or whatever one calls it is so long at so many places. The 1102 field today has become risk adverse and afraid to do things on their own.

So as the discussion goes there are three alternatives, all three of which could be used.  So in truth it depends and a CO makes the choice based on the specifics of their agency, their particular contract need, etc.   

To this point some agencies have manuals, policies and more that dictate certain stuff but unless that stuff is incorporated into a contract specifically then there might be an issue about what or what does not really apply to a contract.   In the world of "it depends" if an agency were like FHWA one would have the ability to address the matter of a certified blaster via its required and incorporated specifications (see Section 205 in reference below) and/or address as responsibility and require satisfaction post contract award but if an agency has no such standard specification then maybe the shoe of special responsibility requirement does fit and needing it to fit "now" is a sound approach.

https://highways.dot.gov/sites/fhwa.dot.gov/files/docs/federal-lands/specs/12851/fp14.pdf

The issue is not whether to require certification when making a responsibility determination. The issue is whether to establish a special ("definitive") standard of responsibility. The point is that a special standard is not necessary, and is not ideal, because it gives rise to possible (and avoidable) legal complications. You can require certification under the general standards of responsibility.

Or you could sidestep the responsibility issue, and potential CoC complications, by requiring the certification as part of the offer.

https://www.gao.gov/products/b-419893.8%2Cb-419893.9

@dsmith101abn, you should find the state law that led to this spec you mention below.  Finding it would be at least academic for you, but, if this is a set-aside contract, it will really pay off practically.

On 8/23/2022 at 2:32 PM, dsmith101abn said:

My situation is we’re constructing a tunnel on state owned land. There is a spec requiring the contractor to submit a blaster in charge certified in the state of XX and have 5 years blasting experience at least 30 days before they start blasting.

Using the law as a basis for a determination under general standards of responsibility, your source selection is protected from the SBA's Certificate of Competency program undermining your nonresponsibility determination.  See the following two FAR Subsections to understand what I mean.  My emphases should make this pretty self-explanatory, but again this only matters to a nonresponsible small business offeror.

Quote

19.602-1 Referral.

(a) Upon determining and documenting that an apparent successful small business offeror lacks certain elements of responsibility (including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting but for sureties see 28.101-3(f) and 28.203-1(e)), the contracting officer shall -

(1) Withhold contract award (see 19.602-3); and

(2) Refer the matter to the cognizant SBA Government Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located, in accordance with agency procedures, except that referral is not necessary if the small business concern -

  (i) Is determined to be unqualified and ineligible because it does not meet the standard in 9.104-1(g); provided, that the determination is approved by the chief of the contracting office; or

  (ii) Is suspended or debarred under Executive Order 11246 or subpart 9.4.

Quote

9.104-1 General standards.

To be determined responsible, a prospective contractor must -

(a) Have adequate financial resources to perform the contract, or the ability to obtain them (see 9.104-3(a));

(b) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;

(c) Have a satisfactory performance record (see 9.104-3(b) and subpart 42.15). A prospective contractor shall not be determined responsible or nonresponsible solely on the basis of a lack of relevant performance history, except as provided in 9.104-2;

(d) Have a satisfactory record of integrity and business ethics (for example, see subpart 42.15);

(e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors) (see 9.104-3(a));

(f) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them (see 9.104-3(a)); and

(g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations (see also inverted domestic corporation prohibition at 9.108).

For your sake, I implore you to reconsider sticking your neck out with a special ("definitive") standard if the law already covers this.  Not to mention, anybody that used to listen to the syndicated radio show, "Bob and Tom in the Morning" will enjoy hearing you say, "It's state law!"

I appreciate everyone's feedback. Although I probably wont respond to everyone's posts I'll give some morning statements. 

I'm aware of the COC process. 

There are several state laws governing blasting such as ORS 480. 

Again i'm doing an IFB, so i'm limited to evaluating price and price related factors with bids. (not a 2-step). I could, but do not want to, use the source selection process at 15.1.

I'm familiar with the FP-14 (was on the team that updated it from the FP-03), and coming soon to a screen near you is the FP-24. 

I'm still gonna do what i said i'm gonna do, but as what i "think" will be my last question, towards the criticism of using a special standard or responsibility in my circumstance, can you, or will you, provide an example of when one might benefit from using a special standard? presumably that process is in the FAR for a reason, and i'm apparently not understanding why or when it would be appropriate to use.

And lastly, 

formerfed said:

But I get so annoyed at COs who won’t make decisions or do things without checking first with their management, policy/review personnel, lawyer, etc. on even the most basic issues.

 I dont like that either. Why the Army works is NCO's can make field decisions based on the best info they have at the time.

dsmith101abn said:

can you, or will you, provide an example of when one might benefit from using a special standard?

In retrospect, as the IHS CO for the solicitation that the GAO decision I specifically posted is with regard to and based on the whole of the process in dealing with the protest and its subsequent ruling and wording my approach would have been to make the lab certification a special standard of responsibility.  I too understand COC and have considered same in making this statement with acknowledgement that the instant solicitation that the protest discusses was a full and open sealed bid.  A special standard in my view gives something very specific to base a determination of responsibility on leaving SBA little wiggle room. 

For the specific matter in this thread I believe the FAR gives the latitude to make  both the certificate and the matter of experience a special standard (with emphasis)  bearing......

9.104-2 (a) When it is necessary for a particular acquisition or class of acquisitions, the contracting officer shall develop, with the assistance of appropriate specialists, special standards of responsibility. Special standards may be particularly desirable when experience has demonstrated that unusual expertise or specialized facilities are needed for adequate contract performance. The special standards shall be set forth in the solicitation (and so identified) and shall apply to all offerors.

I think the last emphasis is key.   Shall apply to all is important in the scheme of things as general standards by their very nature and application do not necessary apply to "all". 

Hope I have helped no matter the approach you and your team decide to take.  .  Best of luck moving forward.

C Culham said:

Hope I have helped no matter the approach you and your team decide to take.  .  Best of luck moving forward.

Thanks Carl.

I especially appreciate the leeway comment. When I had my first kid i was overwhelmed by parent advice, some of people who had young kids, some older kids, some had kids 40 years ago and some with never having kids. To this advice I would say good idea, turn around and do whatever the F i wanted. I appreciate the idea that not one way is correct and the other is wrong and there are options. I feel HQ might be out of touch with the field here! or I'm an idiot, that's a possibility.

That's not to downplay the value of the feedback I've received on this form. It is much appreciated.  hopefully nobody's offended.

dsmith101abn said:

I'm still gonna do what i said i'm gonna do, but as what I "think" will be my last question, towards the criticism of using a special standard or responsibility in my circumstance, can you, or will you, provide an example of when one might benefit from using a special standard? presumably that process is in the FAR for a reason, and i'm apparently not understanding why or when it would be appropriate to use.

No. It's not worth the bother given that you're firmly committed to a course of action.

The provision for special responsibility criteria has been in the procurement regs since before I entered the workforce in 1974. The wording of the provision in the 1970 ASPR, 32 CFR § 1.903-3, was very similar to FAR 1.104-2:

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§ 1.903-3 Special standards. When the situation warrants, contracting officers shall develop with the assistance of technical personnel or other specialists, special standards of responsibility to be applicable to a particular procurement or class of procurements. Such special standards may be particularly desirable where a history of unsatisfactory performance has demonstrated the need for insuring the existence of unusual expertise or specialized facilities necessary for adequate contract performance. The resulting standards shall form a part of the solicitation and shall be applicable to all bidders or offerors.

For those readers who don't think they already know enough about something they don't really understand, see Kidd and Franing, Effectiveness of Definitive Responsibility Criteria in Sealed Bidding for Heavy Construction Projects (2019), Naval Postgraduate School (98 pp).

https://upload.wikimedia.org/wikipedia/commons/b/b1/EFFECTIVENESS_OF_DEFINITIVE_RESPONSIBILITY_CRITERIA_IN_SEALED_BIDDING_FOR_HEAVY_CONSTRUCTION_PROJECTS_(IA_effectivenessofd1094563468).pdf

The abstract:

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This project examines the performance outcomes of procurements using definitive responsibility criteria (DRC) as special standards of responsibility consistent with FAR 9.104-2 to determine if the DRC are worthwhile. Contractor Performance Assessment Reporting System (CPARS) reports were compared for heavy construction projects procured via invitations for bids (IFB) that included DRC and that did not include DRC. The project also includes non-statistical examples of outcomes with data grounded in Government Accountability Office protest decisions and SBA certificate of competency decisions.

The project concludes that DRC did not improve performance outcomes for the contracts examined, but the statistical significance of the findings are not sufficient to predict future outcomes when DRC are included in solicitations. The project also offers several practical recommendations for agencies contemplating use of DRC and recommends further research.

The authors concluded that the use of DRC is a mixed bag.

On 8/25/2022 at 8:58 AM, joel hoffman said:

dsmith wants the contractor to show that it has a blaster in charge with the required experience and certification “now” rather than a month prior to the blasting operations. We know next to nothing about the scope of the project or when, in the schedule after award, the blasting operation would occur.

In related acquisition news, not necessarily about contractor responsibility: anyone interested in the GAO's opinion on whether a FAR Part 15 procurement can use a pass/fail evaluation criterion pre-award or is better off using a post-award requirement should read this case: B-420543; B-420543.2, Insight Technology Solutions, Inc. (gao.gov)

Quote

An agency’s otherwise legitimate requirements regarding an offeror’s demonstrated ability to meet contract requirements may not generally be applied at a point in time prior to when such qualifications become relevant.

Just found a pertinent opinion and though I'd share.  Didn't mean to reopen the thread or anything.