joel hoffman

Napolik, I don’t disagree with the Decision. And tHe evaluation criteria was judgemental : “internal resources with substantial relevant experience. “. That is different than: “where an agency rejects a proposal as technically unacceptable on the basis of a factor that is arguably responsibility related, but the finding of unacceptability is based on the offeror’s failure to submit specific documentation required by the solicitation, referral to the SBA is not required.” Sea Box, Inc., B-414742, Sept. 6, 2017.”

Well, what happens if the firm doesn't meet the minimum requirement in a tradeoff, i.e., "has no recent or relevant experience" What's the difference between that and "no recent or relevant experience" in an LPTA? Assume,in both cases that the experience requirement is reasonable and justifiable. As an example, the firm that is performing the airfield paving portion of contract for concrete aircraft parking ramp must have recent experience on concrete paving project of some magnitude and scale, involving airfield or highway paving lanes with a concrete paving train. I think that you're alluding to situation where one firm has a higher rating than another firm but isn't considered unacceptable under an experience factor. I agree that the COC referral wouldn’t be applicable in that situation. However, in either an LPTA or tradeoff, the factor would likely have criteria for minimum acceptability. If the proposer/quoter doesn’t meet the minimum, the result would be unacceptable. I’m guessing that the SBA wouldn’t override the agency where the requirement is valid and reasonable. Regardless, the topic has no relevance to the instant situation. The office that put together the solicitation didn't coordinate sections L and M. It didn't even ask for information concerning experience, which was necessary and supposedly important in the basis of award. Thus the extent of experience would be compared in the trade off. Treating experience only as an element of responsibility but not as an important discriminator would be inconsistent with the stated basis of award, which involved determining, then comparing the extent and quality of experience, not simply meeting a minimum responsibility requirement. I don’t remember seeing minimum acceptability criteria mentioned here, either. Here, the government apparently discovered its goof up after receiving quotes. It had to correct the error. Funny that industry didn't notice the error/inconsistency in section L and inquire - indicates that the firms competing don't know much about the process either. Appears that this was probably a small dollar, simplified, commercial acquisition. I wonder if those who prepared the solicitation were simply cutting and pasting from multiple other previous examples without coordinating L and M.

You can check out WIFCON listings under requirements unduly restrictive of competition, many of which involve qualifications and/or specifically experience. Some are small business set-asides. Some are trade-off. It where proposal was unacceptable. Some were LPTA. I found these under a Google Search on my iPhone. https://www.gao.gov/assets/700/693532.pdf Small business set-aside: https://www.gao.gov/assets/690/688697.pdf https://www.gao.gov/mobile/products/B-408685.18 The above Involves experience in a mentor-protégé arrangement. https://www.gao.gov/assets/690/681976.pdf. Involves a small business ID/IQ pool. http://www.wifcon.com/cgen/4112097.pdf. Small business Wife told me to “Get off WIFCON”...

Will do some searching and when I have some time.

Yes, it is a responsibility criteria. Yes, I won’t argue that the government might have to refer elimination of a small business for lack of experience to the SBA. However, I have seen Decisions which upheld the right of the government to require certain minimum amount of experience where that was determined to be a reasonable requirement. For instance, we had a small DB business set-aside for an Air Force airfield pavement project (C130 concrete pavement parking ramp). We required the firm that actually was to perform the concrete pavement construction portion of the contract (subcontract) to have recent concrete paving experience for either airfields or street/highway projects, involving paving lanes. The overall basis of award was LPTA and every factor was go-no go. The second lowest proposer was awarded the contract, although the minimum paving experience wasn’t the reason. The lowest priced team was a clear “front” for the paving subcontractor; the JV agreement was a sham; the project superintendent was going to be “on loan” to the DB prime; the sub had final say over JV decisions; the bid bond was defective, etc. They submitted an agency protest but it was denied. They could have protested that we didn’t refer the matter to the SBA but didn’t.

Not knowing the details of the actual multi-phase project, I can only speculate. You said that it is not possible to define the follow on phase design effort well enough to price now. I’m guessing that the follow on design phase involves using the initial design somehow. Is the follow on work segregable or integral to the initial design and construction? If yes, then how would “some” proceed to obtain design services for those latter phases? If no, then you should not be tied to the initial A-E firm.

Jamaal, what is your point or application with respect to this particular acquisition? It appears that you are saying that the government can consider experience in the responsibility determination, separate from the technical factor, which the OP thinks experience was supposed to be evaluated . Also - the OP said that the government provided a form to fill out after the due date but didn’t say that anyone was eliminated for lack of experience.

You’re not an interested party unless you can establish that you are next in line for award or can establish that the next in line for award is deficient. You have no evidence or inkling of whether or not the next lower priced firm meets or doesn’t meet the experience or other criteria.

Jamaal, the GAO has said that the government could set a requirement for some minimum amount of experience as a technical requirement. It has also said that the government could use it as a comparative factor. Regardless of all that, where did the original solicitation say to submit any experience information? And did anyone raise the issue prior to the original response deadline? It would seem that the government would HAVE TO amend the solicitation, after receiving quotations without the necessary experience information. The original solicitation was jacked up.

It’s hard to declare quotes or proposals deficient when the government didn’t even ask for submission of experience until after the cutoff date. Maybe I missed it in Section L. To me nothing in the solicitation was coordinated. As for the OP’s chances in a protest, he doesn’t have standing if he would be second in line for award with no evidence that the next in line should be disqualified.

I meant to say that but forgot to add “for a MATOC” (for each order).

Seems like overkill for a single award ID/IQ. The government could request recertification for size questions, although each and every task order is also an overkill, in my opinion. For instance see: 13 CFR121.404(a)(2)(g);

Are you asking as the govt or a contract holder ?

I also consider it a tool to determine whether a price is “fair and reasonable”. However, the Appeals Boards have carved out a distinction by saying, in essence, that “fair and reasonable” tends to look at the upper end while “cost realism” looks to see if it is unrealistically “low” for the scope and probable effort. For cost reimbursement price or cost evaluations, cost realism analysis is usually important for various reasons, as explained in 15.4. Due to the nature of cost plus, the contractor’s primary risk is a lower fee in order to be price competitive. The government’s risk is that it will have to pay more if the contractor uses the budget without completing the effort. Accidental or deliberate lowballing is possible with an unrealistically low price. For competitive fixed price evaluations, what one can do with the results of a cost realism analysis is more restrictive. You can ask the Offeror or contractor to verify their price. If there are discussions, you can raise the issue if you think that they can’t do the work for that price, particularly if you think that it would endanger performance or result in poor relations, corner cutting, trying to make up the difference through excess claims, etc. I’ve seen defaults and even bankruptcies by awarding contracts at unrealistically low prices. Accidental lowballing is not good for either the contractor or the government. I believe that the position of the boards and courts is that a contractor may assume the risk for lowballing on a firm fixed price contract effort. However, if the government determines that a lowball price would endanger performance, it can take that into consideration in a trade off. But to declare a low price disqualifying may be a responsibility matter, with all the restrictions and other ramifications. For either CP or FP, it is important to ensure that the firm understands the scope and complexity, etc. of the effort, to avoid pricing mistakes. There is much more to the concept of cost realism but we don’t need to discuss all the details here. It is part of cost analysis for Part 15 pricing procedures when applicable - yes, normally for CP. Sometimes for FP.

Patrick, I performed price and cost analysis for many years on new construction contracts and mods, changes and claims thereto. Cost realism is a form of cost analysis but generally for a separate purpose than determining that a price is “fair and reasonable”. It doesn’t matter that cost realism is also discussed in more detail in a separate paragraph (d). That paragraph merely describes cost realism analysis in more detail. Note that “technical analysis” is also an element of and an input into the cost analysis process, where applicable. It is especially applicable to construction contracting. Its discussed in detail in a separate paragraph (e). A technical analysis is particularly useful in forward pricing negotiations. It is incorporated into the cost analysis documentation and pre-negotiations objectives. In fact, the DCAA auditors always mentioned whether or not we had performed a technical analysis for input to the audit.

“Adequate competition” is more indicative of price reasonableness than cost realism in the case of a cost reimbursable competition. Cost realism analysis may be necessary due to pressure or tendency to understate costs in a competitive CP environment. A cost realism analysis is discussed under 15.404-1 (c) as one form of COST analysis.

How is the price for an IT support task determined/established?

Yes. By Statute, the “head of an agency shall require offerors, contractors,and subcontractors to make cost or pricing data available”, as described in the Statute, where applicable. Yes, the provision and applicable clauses are required in negotiated acquisitions by the Code of Federal Regulations However, the Christian Doctrine has been applied to the Truth in Negotiations Act., when the government omitted mandatory TINA clauses that were applicable to the type of acquisition to implement this deeply ingrained procurement policy. Thus, the implementing clauses were read into the contracts. Reference, for instance: https://www.weitzmorgan.com/2017/06/16/christian-doctrine/ At this point, I’m not sure which scenario or what requirement is under debate in this thread. A CPFF prime received one subcontractor CPFF proposal and one question seemed to be whether or not there was “adequate price competition” to assume that the price is fair and reasonable. DoD policy is that the scenario doesn’t automatically constitute adequate price competition to establish a presumption of “fair and reasonable pricing”.

For DoD: “215.371-3 Fair and reasonable price. (a) If there was “reasonable expectation… that …two or more offerors, competing independently, would submit priced offers” but only one offer is received, this circumstance does not constitute adequate price competition unless an official at a level above the contracting officer approves the determination that the price is reasonable (see FAR 15.403-1(c)(1)(ii)).” The above reflects DoD policy not to assume that adequate competition exists where multiple firms were solicited but only one responded or where multiple firms expressed an interest but only one responded.

You might want to review the 10 USC 2306(a) again. The statute states that the Contracting Officer shall require that the contractor or Offeror to submit cost or pricing data and for subs to submit C&P data as applicable. It also requires that the contractor submit it and to obtain C&P from subs or prospective subs as applicable. It requires a sub or prospective sub to submit it, where applicable. I reread my old Briefing papers on TINA and they clearly state that the prospective contractor or contracting shall submit..., shall review..., etc.

I think that this thread concerns an internal debate over hypothetical scenarios, not an actual A/E task order.

Yes, that is one of my suggestions, with the proviso that it or they will be follow on task orders, exempt from fair opportunity (based upon the description provided). If so, then state that intent in the initial task order.

You can only price what you can definitize. What do they say about my suggestions, both of which would be consistent with 16.5? Your organization would have to be totally ignorant about architect -engineer design processes, design development, design integrity if they won’t let you use the same architects and engineers of record for follow on design work that would be essentially non-severable or based off of the initial design effort. The other A-E pool members should understand that if you let everyone know that during the initial task order selection process.

Ok, so just issue the follow up task orders to the same A-E firm as an exception to fair opportunity. Mutually determine and define the scope then negotiate the design fee. If the follow on design work is within the overall scope of the instant task order, you can add the work as in-scope changes. Mutually define the additional design work and negotiate the price. if You are in the initial task order solicitation process , include your intended course of action for the phases in the task order statement of work. Edit: you probably ought to state that it is the government’s intent to... but the government reserves the right to separately contract for such design work, if it is determined to be in the best interest of the government to do so. Not being familiar with the nature of the follow on limits my recommendation somewhat.

“Some “ in Desperado’s organization appear to be hanging their hats on 17.2 and perhaps 17.207, which aren’t applicable to A-E contracts. A-E contracts use a specifically directed QBS process to select the most qualified.firm, then the parties negotiate fair and reasonable pricing to accomplish the A-E services task. I hope that my understanding is correct that that they cant definitize a price for later phases of the contract that will depend upon the initial design. If so, how would the organization contract for A-E services to design the project if there were no ID/IQ ? Also, please note 36.101(b): “(b) When a requirement in this part is inconsistent with a requirement in another part of this regulation, this part 36 shall take precedence if the acquisition of construction or architect-engineer services is involved.”