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Warning To Proposal Writers (and Agency Evaluators)

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Vern Edwards

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All proposal managers and writers should read a recent GAO bid protest decision: CR/SWS LLC, GAO B-414766.2, Sept. 13, 2017. In that case the agency was buying a commercial item--integrated solid waste management services at an Air Force base.

The solicitation required offerors to submit a “technical proposal” that was to consist entirely of a “Mission Essential Contractor Services Plan” (MECSP). The proposal preparation instructions said: 

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Develop and submit a Mission-Essential Contractor Services Plan required IAW DFARS Provision 252.237-7024, Notice of Continuation of Essential Contractor Services.

That’s it. There were no supplemental instructions and no formatting or page limitations.

The solicitation said that the agency would evaluate proposals and select a contractor in a series of steps. The first step would be to evaluate the technical proposal (the Mission Essential Contractor Services Plan) for acceptability on a pass or fail basis. It said:

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Mission-Essential Contractor Services Plan

Description: The Mission-Essential Contractor Services Plan must meet the requirements established in DFARS Provision 252.237-7024, Notice of Continuation of Essential Contractor Services.

and

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This requirement is met when the offeror’s proposal contains a Mission-Essential Contractor Services Plan that meets the requirements established in DFARS Provision 252.237-7024.

Measure of Merit: This requirement is met when the offeror’s proposal contains a Mission-Essential Contractor Services Plan that meets the requirements established in DFARS Provision 252.237-7024.

 The solicitation defined acceptable and unacceptable as follows: 

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Acceptable: Proposal clearly meets the minimum requirements of the solicitation.

Unacceptable: Proposal does not clearly meet the minimum requirements of the solicitation.

 The solicitation said that only those offerors whose technical proposals (the Plan) were determined to be acceptable would move on to the next phase of the evaluation, which would entail a past performance/price tradeoff analysis and decision. The solicitation said that the agency planned to award without discussions.

Here is the text of DFARS 252.237-7024: 

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NOTICE OF CONTINUATION OF ESSENTIAL CONTRACTOR SERVICES (OCT 2010) 

      (a)  Definitions.  “Essential contractor service” and “mission-essential functions” have the meanings given in the clause at 252.237-7023, Continuation of Essential Contractor Services, in this solicitation. 

      (b)  The offeror shall provide with its offer a written plan describing how it will continue to perform the essential contractor services listed in attachment _______, Mission Essential Contractor Services, dated ________, during periods of crisis.  The offeror shall– 

              (1)  Identify provisions made for the acquisition of essential personnel and resources, if necessary, for continuity of operations for up to 30 days or until normal operations can be resumed; 

              (2)  Address in the plan, at a minimum— 

                    (i)  Challenges associated with maintaining essential contractor services during an extended event, such as a pandemic that occurs in repeated waves; 

                    (ii)  The time lapse associated with the initiation of the acquisition of essential personnel and resources and their actual availability on site; 

                    (iii)  The components, processes, and requirements for the identification, training, and preparedness of personnel who are capable of relocating to alternate facilities or performing work from home; 

                    (iv)  Any established alert and notification procedures for mobilizing identified “essential contractor service” personnel; and 

                    (v)  The approach for communicating expectations to contractor employees regarding their roles and responsibilities during a crisis. 

(End of clause)

Note that despite the capital letter at the beginning of each subparagraph, paragraph (b) is one long sentence. 

(Whether such a requirement was properly imposed in an acquisition of commercial item solid waste management services is a matter that I will not address in this blogpost.)

The agency rated both the successful offeror’s and the protester’s plans to be acceptable. The successful offeror’s plan was less than two pages long. The protester’s plan was 14 pages long. The successful offeror won based on its lower price and past performance rating of “satisfactory confidence”.

The protester, which had a higher price but a better past performance rating, complained that the successful offeror’s plan did not address all the topics required by DFARS 252.237.7024 paragraphs (b)(2)(ii) and (b)(2)(iii), “time lapses” and “training issues”. The GAO agreed, sustained the protest, and recommended that the agency either reject the successful offeror’s proposal or conduct discussions, solicit revised proposals, and make a new source selection decision. It also recommended that the agency reimburse the protester’s costs of filing and pursuing the protest.

Yes, the agency was dumb. It did not take its own proposal preparation requirement seriously or plan its evaluation carefully. But that’s not the point of this blog post. The point of this blog post is that proposal managers and writers better pay close attention when reading and complying with proposal preparation instructions. They better dissect each and every sentence and phrase and identify each and every submission requirement. Details matter.

Now, look back at DFARS 252.237.7024 paragraph (b)(2), which specifies the topics that a Mission Essential Contractor Services Plan must “address”. How many are there? At first glance, there are five, specified in subparagraphs (i) through (v). But, in fact, there are many more than five. Here is my phrase-by-phrase analysis of what DFARS 252.237.7024, paragraph (b)(2), requires offerors to “address”;

1.    challenges associated with maintaining essential contractor services during an extended event; 

2.    time lapse associated with:

2.1. the initiation of the acquisition of essential personnel

2.2. the initiation of the acquisition of essential resources

2.3. the actual availability of essential personnel on site;

2.4. the actual availability of essential resources on site; 

3.    components for:

3.1. identification of personnel who are capable of relocating to alternate facilities

3.2. identification of personnel who are capable of performing work from home

3.3. training of personnel who are capable of relocating to alternate facilities

3.4. training of personnel who are capable of performing work from home

3.5. preparedness of personnel who are capable of relocating to alternate facilities

3.6. preparedness of personnel who are capable of performing work from home

4.    processes for:

4.1. identification of personnel who are capable of relocating to alternate facilities

4.2. identification of personnel who are capable of performing work from home

4.3. training of personnel who are capable of relocating to alternate facilities

4.4. training of personnel who are capable of performing work from home

4.5. preparedness of personnel who are capable of relocating to alternate facilities

4.6. preparedness of personnel who are capable of performing work from home

5.    requirements for:

5.1. identification of personnel who are capable of relocating to alternate facilities

5.2. identification of personnel who are capable of performing work from home

5.3. training of personnel who are capable of relocating to alternate facilities

5.4. training of personnel who are capable of performing work from home

5.5. preparedness of personnel who are capable of relocating to alternate facilities

5.6. preparedness of personnel who are capable of performing work from home

6.    any established alert procedures for mobilizing identified “essential contractor service” personnel

7.    any established notification procedures for mobilizing identified “essential contractor service” personnel

8.    approach for:

8.1. communicating expectations to contractor employees regarding their roles during a crisis. 

8.2. communicating expectations to contractor employees regarding their responsibilities during a crisis. 

By my count there are 27 planning topics to be addressed, not just five.

(By the way, what’s in a “plan”? Some persons would think that a plan specifies who, what, when, where, and how.)

My kind of analysis might accomplish three things.

  • First, it will ensure that your proposal addresses each and every proposal preparation requirement. Agency personnel are not always aware of just what their proposal preparation instructions require of offerors. Read the convoluted instructions in some of the RFPs floating around out there. Read the sentences. There can be a lot of hidden eddies in bureaucratic stream-of-consciousness writing, as the Air Force learned in CR/SWS LLC.
  • Second, it might alert complacent agency evaluators as to what they should be looking for in all proposals. This will give you a leg up if the competition has not been as thorough as you.
  • Third, if you lose, it might give your attorney a basis for assessing whether the agency adhered to its evaluation criteria and ammunition for a protest, as it did in CR/SWS LLC. The protester was more conscientious than both its competitor and the agency, and so it won.

Did the Department of Defense really intend for offerors to plan mission-essential contractor services in great detail? Was it practical to ask offerors to do so before contract award, i.e., before they understood what performance would actually be like on the Air Force base? What did the agency really want and expect from offerors? Who knows? It did not matter. Neither the agency nor the successful offeror took the proposal preparation instructions seriously, and it cost them.

As for you agency personnel--you better think when you write proposal preparation instructions, and you better read what you’ve written when you plan your evaluations, and you better take what you’ve written seriously. And you better supplement and explain lousy boilerplate instructions like those in DFARS 252.237-7024.

I assume that the Air Force will do as the GAO recommended: conduct discussions, seek proposal revisions, and make a new source selection decision. I wonder if it will supplement and clarify DFARS 252.237-7024. I wonder how comprehensive and how long the offerors’ Mission-Essential Contractor Services Plans will be in the second go-round.

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What did the agency really want and expect from offerors?

It's pretty clear: they wanted the offerors to do the agency's job (impute meaning, define relevance, and quantify value).

But heck; I'm going to follow the AF's lead, and state the eval criteria on my next RFQ as "quotations shall be IAW with the FAR and other applicable regulations, which will be evaluated on a 2-step, pass/fail basis".    :P

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15 hours ago, here_2_help said:

All this for acquisition of a commercial item? Are you kidding me? How about no?

It does seem a excessive.  But not knowing the gory details of their acquisition, I'll assume they needed this plan (because if they didn't, the solution was obvious) and they appropriately determined that this was "Government-determined essential contractor services" (DFARS  237.7603(b)) .  So do you think the requirement for this plan was sufficient to knock this into non-commercial territory?   (Sorry, I know Vern specifically said he wasn't going to address this aspect of the issue, but still seems worth a little discussion)

 

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“Commercial item” means --

...

(6) Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions

I'm having a hard time coming up with a commercial scenario where all the requirements we levy under this clause could be considered "standard commercial terms and conditions", so in my mind, it should have been solicited as non-commercial unless someone with a lot more technical knowledge of this field could show me it was something commercial companies are frequently held to.  Of course all this is moot to this posting (which is probably why Vern declined to go into it), because the same mistakes would have likely been made regardless of commerciality.   

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16 hours ago, here_2_help said:

"integrated solid waste management services" -- i.e., trash hauling

Point well taken.  But, to play government's advocate in some military doctrine "Trash Hauling" is considered part of critical infrastructure.  See "Handbook for Military Support to Essential Services and Critical Infrastructure" (http://www.dtic.mil/doctrine/doctrine/jwfc/esci_hbk.pdf).  Solid waste management may seem mundane, but having lived in countries where it is sporadic at best, and shuts down completely in adverse weather, I've seen that it can become more than a nuisance relatively quickly.   (www.who.int/water_sanitation_health/hygiene/emergencies/solidwaste.pdf)

Sorry, probably given this more attention than it deserves.  In my mind, they probably should have just included a technical requirement (with an evaluated tech subfactor) with some of the pared down requirements of 252.237.7024 (some portions clearly would not apply like performing from home).  I think a more succinct requirement could be made to mirror contingency plans existing in a commercial requirements, and hopefully be easier to propose to and evaluate (with less likelihood of errors by the offerors/evaluators). 

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Yep. I too get very upset when the trash truck doesn't arrive on Thursday morning. So do my neighbors. That usually happens when there's a Federal holiday earlier in the week so the trucks get behind a day. They pick up Friday morning instead of Thursday morning.

I was considering sending the trash company a cure notice, but then I decided that a poor CPARS rating was sufficient.

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