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Vern Edwards

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Everything posted by Vern Edwards

  1. Invoicing

    If the oral direction added work, then I presume that it increased costs. If it increased costs, then the CO must process a written mod in order to adjust the task order value and obligate additional funds with which to pay the additional cost. If you invoiced for an amount that includes the additional cost, even though the written task order still reflects the original amount, then the invoice was necessarily and properly rejected. The "authority" is that you cannot invoice the government in an amount in excess of the current value of a task order. Read your contract. You should have known all this and made sure that the CO had started the paper work before you were ready to invoice. Think about who your customer is. It's the Government! Don't freak out. I presume that you and the CO have agreed on the additional amount. If so, just call the CO and ask how long it's going to take to process the mod. It's probably going to take a while. If you haven't agreed on the cost, then it's going to take a long while.
  2. New Info after proposal submission

    I like that phrase: "normal churn and burn of participants in a market-based economy." Very nice.
  3. New Info after proposal submission

    The following was just published. 31 Nash & Cibinic Rep. NL ¶ 59 Nash & Cibinic Report | November 2017 The Nash & Cibinic Report Competition & Award Vernon J. Edwards ¶ 59. KEY PERSONNEL SUBSTITUTIONS AFTER PROPOSAL SUBMISSION: An Unfair Rule In General Revenue Corp., Comp. Gen. Dec. B-414220.2, 2017 CPD ¶ 106, 2017 WL 2130379, the Government Accountability Office sustained a protest in part because several awardees had experienced material changes in their proposed key personnel after proposal submission, but failed to notify the agency before contract award. The Request for Proposals had required offerors to submit résumés, and several awardees had employees depart before contract award. The GAO found no evidence that the awardees had made any material misrepresentations about the availability of the key personnel. However, it found that the awardees had an “obligation” to notify the agency of the changes in the status of their key personnel when they occurred: "Our Office has explained that offerors are obligated to advise agencies of changes in proposed staffing and resources, even after submission of proposals. Pioneering Evolution, LLC, B–412016, B–412016.2, Dec. 8, 2015, 2015 CPD ¶ 385 at 9; Greenleaf Constr. Co., Inc., B–293105.18, B–293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 10; Dual, Inc., B–280719, Nov. 12, 1998, 98–2 CPD ¶ 133 at 3–6. When the agency is notified of the withdrawal of a key person, it has two options: either evaluate the proposal as submitted, where the proposal would be rejected as technically unacceptable for failing to meet a material requirement, or open discussions to permit the offeror to amend its proposal. Pioneering Evolution, LLC, supra." In Pioneering Evolution, LLC, Comp. Gen. Dec. B–412016, 2015 CPD ¶ 385, 2015 WL 9256894, which was about a task order competition, the protester, one of only two offerors, notified the agency after proposal submission that a proposed key person had taken another job and they asked to substitute another person. The agency, which had already conducted two rounds of discussion, decided that the offeror’s proposal was deficient and technically unacceptable due to the change, refused to conduct another round of discussions, and awarded the contract to the other offeror, which had a higher price. The protester argued that it should have been able to provide a substitute by means of clarification, but the GAO rejected its argument. "When a solicitation requires résumés for key personnel, these form a material requirement of the solicitation. Submission of key personnel résumés after receipt of final proposals constitutes discussions, not clarifications, because without these résumés, the proposal would omit material information required by the RFP. CACI Techs., Inc., B–411282, June 18, 2015, 2015 CPD ¶ 185 at 2 (finding that proposal missing résumés of key personnel lacked the substantive information for the agency to find the proposal acceptable). { Footnote omitted.] "Here, Pioneering notified the Navy of the withdrawal of one of its key personnel. As our Office has held, offerors are obligated to advise agencies of changes in proposed staffing and resources, even after submission of proposals. Greenleaf Constr. Co., Inc., B–293105.18, B–293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 10 (it is an offeror’s obligation to inform a procuring agency); Dual, Inc., B–280719, Nov. 12, 1998, 98–2 CPD ¶ 133 at 3–6. However, upon notice of the withdrawal, the Navy had two options: either evaluate Pioneering’s proposal as submitted, where the proposal would be rejected as technically unacceptable for failing to meet a material requirement, or reopen discussions to permit Pioneering to correct this deficiency. Paradigm Techs., Inc., B–409221.2, B–409221.3, Aug. 1, 2014, 2014 CPD ¶ 257 at 5. The Navy, having already engaged in two rounds of discussions, reasonably declined to reopen a third round of discussions. Under the circumstances here, where prior discussions were meaningful and equal, the agency’s decision not to reopen discussions is a matter within its discretion. The Boeing Co., B–409941, B–409941.2, Sept. 18, 2014, 2014 CPD ¶ 290 at 7 (agency not required to reopen discussions to address proposal weakness introduced after final proposal revisions were received and discussions had concluded). On this basis, the challenge to the agency’s evaluation is denied." Strange, Ill-Considered, And Unfair Rules Once again we are reminded of the strangeness of the rules about exchanges of information between the Government and offerors during a source selection, rules which have sprung largely from the decisions of the GAO over the course of some 50-plus years. How many times has the GAO told us, “[D]iscussions occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect….”? Defense Base Services, Inc., Comp. Gen. Dec. B-414591, 2017 CPD ¶ 243, 2017 WL 3263329. In General Revenue, Pioneering Evolution, and a few other decisions, the GAO has ruled (a) that an offeror must tell an agency about any change in the status of key personnel when it occurs and (b) that an agency must consider information about such changes when determining whether an offeror’s proposal is acceptable. That exchange of information apparently does not constitute discussions. However, an exchange of information about the identity of an offeror’s proposed substitute does constitute discussions. Go figure. The GAO’s rule that offerors are “obligated” to notify agencies of changes in the status of their proposed key personnel is ill-considered and unfair. It makes offerors the victims of the Government’s dilatory processes. Source selections often take a very long time. In both General Revenue and Pioneering Evolution the agencies took a year to complete their source selections. The simple facts of biology (illness, injury, incapacitation due to various causes, and death) and the common realities of business life (people retire, quit, or must be laid off or fired) make it unreasonable to expect that offerors will not experience changes in the status of their staffing over the course of such lengthy periods. The GAO requires offerors to tell agencies when there is a change, but does not require or permit agencies to provide a simple process of substitution. If, by GAO diktat, without publication in the Federal Register and an opportunity for public comment, offerors are to be required to notify agencies of changes in the status of their staffing, and if agencies must consider those changes when evaluating proposals, then the GAO’s rule should mandate an efficient substitution process. Such a process should be available to any offeror still in the competition, rather than subject to Contracting Officer discretion. A Simple Substitution Procedure Instead of the rigmarole of discussions pursuant to FAR 15.306, agencies should use a simpler process, such as the following, which could be described as follows in the proposal preparation instructions: SUBSTITUTION OF PROPOSED KEY PERSONNEL (a) If, after submission of proposals, but before contract award, an offeror learns that any of its proposed key personnel are no longer available for contract performance, the contracting officer will permit the offeror to substitute another person, provided that the Government finds that the person previously proposed would have been acceptable in accordance with the evaluation factors. (b) An offeror will not be permitted to improve the evaluation of its proposal through substitution of proposed key personnel. Depending on the substitute’s résumé, he or she will receive either the same evaluation as the person previously proposed or a lower evaluation, as appropriate in accordance with the evaluation factors for award. Under no circumstances will the substitute receive a better evaluation than the person previously proposed, regardless of the content of his or her résumé. (c) An offeror seeking to make such a substitution before award must notify the Contracting Officer in writing by submitting a brief explanation, accompanied by the substitute’s résumé prepared in accordance with Section L of this solicitation. (d) Substitutions made before contract award in accordance with this procedure shall not be considered proposal revisions. Acceptance of any such substitution by the Government shall not constitute discussions as described in FAR 15.306 and FAR 52.215-1 and shall not require the Contracting Officer to make a competitive range determination. Such substitutions shall not be considered late proposal submissions as described in FAR 52.215-1. After contract award, key personnel substitutions shall be processed in accordance with the contract Key Personnel clause. A FAR deviation? Maybe. If so, so what? FAR Subpart 1.4 includes a process for approving deviations. Withdrawing A No Longer Viable Offer In General Revenue Corp., cited above, the proposal preparation instructions concerning key personnel were as follows: “Résumés of Key Personnel proposed (3 page limit per person proposed).” (That was it. No verb.) But the model contract in the solicitation included the following “key personnel” clause: "(a) The personnel designated as key personnel in this contract are considered to be essential to the work being performed hereunder. Prior to diverting any of the specified individuals to other programs, or otherwise substituting any other personnel for specified personnel, the contractor shall notify the contracting officer reasonably in advance and shall submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on the contract effort. No diversion or substitution shall be made by the contractor without written consent of the contracting officer; provided, that the contracting officer may ratify a diversion or substitution in writing and that ratification shall constitute the consent of the contracting officer required by this clause. The contract shall be modified to reflect the addition or deletion of key personnel. "(b) The following personnel have been identified as Key Personnel in the performance of this contract: Labor Category Name Contract Representative Project Manager" During the Q&A with prospective offerors after release of the RFP, the agency told them that they must insert the names of their proposed Contract Representative and Project Manager into the spaces in the “Name” column. Thus, by submitting résumés, an offeror would promise to employ specific persons in those positions. This did not factor into the GAO’s analysis of the case, but it should have. We have written about the often unrecognized distinction between offers (promises) and proposals as packages that include both promises and nonpromissory information. See Proposals: Offers or Offers and Information?, 12 N&CR ¶ 5 and Edwards, The Problem of Proposal-Based Competition (Aug. 6, 2017), http://www.wifcon.com/discussion/index.php?/blogs/entry/3544-the-problem-of-proposal-based-competition. It is one thing for an offeror to provide résumés for candidate key personnel simply as a matter of information, as it might in order to demonstrate its responsibility under FAR Subpart 9.1. It is another thing entirely to promise to employ specific persons in specific capacities. In the latter case, an offeror’s realization after proposal submission that it will be unable to keep a promise mandates that the offeror withdraw its offer. (Which may be done at any time in accordance with FAR 15.208(e).) Failure to withdraw an offer in such a case might well result in breach of contract if the Government unknowingly accepts the offer. The obligation of an offeror to withdraw its offer in such a case is an obligation to itself—a matter of simple common sense and self protection. Yet it confronts the offeror with the prospect of a business failure that in dealings with ordinary customers might easily be avoided. The offeror could propose to replace the original candidate with a substitute of equal stature. But in dealings with the Government, a CO would likely consider any such substitution to constitute discussions, governed by FAR 15.306. A CO who is inclined or under pressure to award on the basis of initial proposals without discussions can reject the substitution, dooming the offeror’s proposal to unacceptability. There might be a viable tactic for dealing with that prospect. An offeror that must notify a CO that one or more of its proposed key persons is no longer available should do so by submitting an explanatory cover letter and attaching the résumé of the substitute(s). Suppose that the CO responds that he or she is accepting the notification and will evaluate the proposal accordingly as unacceptable, but will not consider the substitute, because the agency is not going to conduct discussions. The offeror might respond that the CO has already conducted discussions by accepting the notification of unavailability and evaluating the proposal accordingly. Refusing to give the offeror a chance to correct the deficiency caused by the key person’s unavailability would constitute a failure to conduct meaningful discussions. If the CO still rejects the request to propose a substitute, a protest might be worthwhile. It is a matter of conjecture as to whether the U.S. Court of Federal Claims might be more open to such an argument than the GAO. Change The Rules! We have often complained about the rules governing exchanges of information between the Government and offerors during source selection. We hope that the Section 809 Panel on streamlining and codifying acquisition regulations will consider the problems associated with clarification, discussion, and proposal modification and revision and propose a simpler and more workable and effective scheme. See The Section 809 Panel Interim Report: Strong on Analysis, Short on Solutions, 31 NCRNL ¶ 41; The Department of Defense’s Section 809 Advisory Panel: Recommendations, 30 NCRNL ¶ 52. The authors of the FAR Part 15 Rewrite of 20 years ago had hoped to bring about a better communications protocol, but they failed. The Executive Branch has allowed the GAO to maintain the bizarre labyrinth of its case “law.” It is long past time for the Executive Branch to take the reins, if only there were capable acquisition leadership. VJE Westlaw. © 2017 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
  4. Moving from industry to Gov. Contracting

    I don't have any such tips, but I'll make the following points: Agency mission descriptions, job titles and descriptions and job interviews probably will not tell you what it will really be like to work in the office of the hiring agency. Every agency and every contracting office within an agency will have its own workload, "culture", and "atmosphere". You probably won't learn about those things from a job title, description, or interview. Agency mission descriptions, job titles and descriptions and job interviews may not tell you what work you'll really be doing and whether its tedious or interesting If I owed you candor, which I don't, there are some agencies and offices that I would tell to absolutely avoid. Good luck.
  5. nationwide IDIQ

    There have not been many (if any ) "on point" protests such as ji20874 suggested (alluded to). However, there was one that was close. See Aslco Forwarding, Inc., et al., B-277241 (1998), which dealt with a multiple award IDIQ contract. Pertinent excerpts:
  6. Privatization

    FAR-flung, have you read the book?
  7. Basic Question

    FAR 51.100 says: Emphasis added. Now read 51.101(c), which reads: Emphasis added. I don't see anything there that would include DHS Eagle. Nor do I see anything that would include a non-DLA DOD contract or GSA contract for other than items that are available through their "distribution facilities," whatever those are. But see 51.102(c)(5): I'm just reading the words in the regulation. I have no idea what is actually being done.
  8. Privatization

    Privatization, outsource and outsourcing, and contracting out are interesting terms. OMB Circular A-76, Supplement D, defines privatization as follows: According to the last two sentences of that definition, privatization clearly does not involve contracting. The terms privatize and privatization are not defined in FAR and, according to a search of the ecfr, do not appear in the FAR System. Outsource and outsourcing are not defined either in OMB A-76 or in FAR. According to a search of the ecfr, outsource does not appear in the FAR System. Outsourcing does not appear in the FAR itself, but appears in ten places within agency supplementsf. The terms contract out and contracting out are not defined in OMB A-76 or the FAR System. According to a search of the ecfr, the term contract out appears in four places in the FAR System, but not in the FAR itself. The term contracting out does not appear in the FAR System. The Government Contracts Reference Book, 4th ed., defines outsourcing as follows: However, it describes privatization as a form of outsourcing, which is inconsistent with OMB A-76.
  9. Privatization

    Let me elaborate on the book and author's thesis. The book is Constitutional Coup: Privatization's Threat to the American Republic by Jon D. Michaels (Harvard, 2017). Michaels is a professor of law at the UCLA School of Law. I learned of the book from a review by Steve Schooner of the GWU Law School that was published in the October 25 issue of The Government Contractor, (59 GC ¶ 319). Michaels' argument goes like this: The separation of powers--legislative, executive, and judicial--as provided for in the Constitution, protects us from tyranny at the hands of any single branch of government and is an essential feature of our Republic. (The separation of powers was threatened in the 20th Century by the rise of the administrative state, in which agencies made rules, enforced them, and judged accused violators. This was corrected by the Administrative Procedures Act, which required public rulemaking, provided for public comment, and provided for court review of agency adjudication, thereby establishing a separation of powers of sorts within the regime of the administrative state.) Privatization eliminates or attenuates the separation of powers by putting government functions in the hands of private parties. (Privatization gives businesses the power of rule-making, execution, and adjudication, subject only to market forces and ordinary government business regulation. Among other things, this undermines the civil service, which functions to restrain presidential appointees.) Therefore, privatization is a threat to our liberty. The author urges an end to privatization and the rebuilding of the civil service in numbers and quality. He makes very specific and extensive recommendations for rebuilding the civil service. Obviously, the arguments validity depends on the nature of privatization. What kind of activity is that? The author defines it as follows (on page 106): The author makes no mention in the book (that I have found) of OMB Circular A-76, the FAR, or the definition of inherently governmental function. This raises the question of what actions does he include in privatization? What functions does he consider to be "State responsibilities"? On page 111 her refers to what he calls "deep service contracting," which includes "the outsourcing of sensitive policy design and policy-implementing responsibilities." He also includes "military privatization," which encompasses activities such as drone piloting, detaining and interrogating prisoners, protecting government officials, and managing bases. Michaels advocates an end to privatization and the rebuilding and upgrading of the civil service, about which he makes extensive and detailed recommendations. Steve Schooner ends his review with this challenge: I'm taking him up on that, which is why I have asked members of the Wifcon Forum what they understand "privatization" to be.
  10. LPTA Question

    Not necessarily. At lot depends on what you mean by "result." Suppose that your teenage hiker has gone missing in the Columbia River Gorge. The authorities found her car parked along Hwy 30, but you don't know which trail she took into the extremely rugged terrain. The authorities called off the search after a week, but you want to hire a private party to search. You select Offeror A on the basis of its proposed search method, which you and your advisors think offers the best chance of success. The offeror will not promise to find your daughter. No one would, because no one has any idea where she might be, even whether she actually went hiking. The most any of them are willing to do is search in a particular way. (Scenario based on a real event.) You decide to negotiate a level-of-effort contract. Isn't that a case in which you would bind the offeror to its approach, but not to a result? The only contractually specified result would be completed conduct of the search in a specified way for a specified number of days. Otherwise, what will be will be.
  11. Broadly applicable. I can't think of a case in which the government would want to buy just hours. It would want to buy the performance of some kind of work. It would specify the work, and it might say how much of work the contractor is to do in terms of hours ( or days, weeks, months, or years), but it would not want only hours.
  12. See Additional Management Attention and Action Needed to Close Contracts and Reduce Audit Backlog, GAO Report 17-738, September 2017. I could not determine if the number of days were woking days or calendar days.
  13. The specification of a level of effort is no more likely to produce little or nothing of value than the specification of an end result. it is generally well known that some results are worthless. May we not not devote a level of effort to testing a promising cure for breast cancer just because we cannot be sure that the effort in question will produce one? That's a matter for critical thinking, not for doctrinaire applications of a single sentence in the FAR. And I don't need it to tell me not to say stupid stuff.
  14. Completely off base. Thank you, ji20874. The government contracts with firefighters to fight a wildfire in an effort to contain it, not to put it out. Not even heavy rain is certain to extinguish a wildfire. They will smolder for weeks or months after containment. The contractor agrees to do certain work, not to be responsible for containing the fire. No contractor would promise to contain or put out a wildfire within a firm schedule and for a firm-fixed price, because containment depends on too many independent variables, such as terrain, weather (temperature, humidity, wind, likelihood of rain, likelihood of lightening, etc.), and aerial visibility. Moreover, large wildfires are not fought by a single contractor. Well, sometimes knowledge of facts matter, in which cases a little pedantry is helpful. FFP-LOE contracts do not require a "conclusion/result" other than the expenditure of the specified level of effort. There is very little risk to the Government from an FFP-LOE contract. There is certainly no "huge risk." The reason for the $150,000 limitation is not to avoid risk, but to limit the use of contracts that do not specify an end result. Requiring activities should be required to specify an end result whenever possible. A contracting officer should be able to think critically about arguments that specification of an end result is not feasible or desirable. Approval by a CCO is a very low level of control. Thank you, ji20874, for pointing out a basic fact about T&M that many practitioners have not learned. Let me add that I hope that nobody out there is buying just hours. What you buy, at minimum, is a specified effort that is to be measured in hours. Practitioners who talk seriously about buying hours under a government contract should be sent to a re-education camp.
  15. Well, if you think fire-fighting is a form of special studies, that's fine with me. I can fit all kinds of services into your conception.
  16. DPAS

    Fara: There is not much analysis of DPAS out there. But you might want to read a 2001 Briefing Paper by Marc F. Efron and Robert T. Ebert entitled, Defense Priorities and Allocations System. It includes the following statement: Footnotes omitted. I found nothing in the regs that addresses the situation that you described. There has been very little litigation about compliance with DPAS and prosecution for noncompliance. Absent an agency directive to perform, I believe that the sub in your case may take contractual action such as stopping deliveries in light of the prime's refusal to pay them. I suspect that there is very little risk involved. However, if the agency issues a directive to perform, then the sub had better call an attorney.
  17. @REA'n Maker: You wrote: "I view it more as 'respecting the intent', which is 100% clear...." Then you quoted FAR 16.207-3(a): That passage is not objectively clear. What does it mean to say that "work" cannot be "defined"? What does the passage mean by "work"? Process or result? Presumably, "defined" means specified or described. If you cannot specify or describe the work you want done, how can you specify a level of effort doing that work? Effort doing what, exactly? That passage is utter nonsense. Of course, individuals can ascribe any meaning they want to a passage, whether the passage is objectively clear or obscure. To me, LOE contracts are appropriate when you can specify a work process that has no inherently definite beginning or end and for which you cannot or do not want to specify a result. Observe wildlife from the highest point of Juniper Ridge in the Dark Divide of Skamania County, Washington, 24 hours a day for 14 calendar days, and report any sightings of Sasquatch. You wrote: Really? I don't agree. FFP-LOE is suitable for many kinds of services, such as wildlife observation, tracking, and control; wildland fire-fighting services; testing; non-R&D investigations; inspections and other QA tasks; observation services of various kinds; etc., etc. Your statement is based on too rigid a doctrine of professional propriety.
  18. Emphasis added. Pepe, you are one of my favorites. But, I have to ask you: What is your evidence for the truth of that assertion?
  19. I think that GAO is engaging in rulemaking in this case in the guise of deciding protests. I agree that GAO is imposing a duty on offerors that is not imposed by statute or regulation (as far as I know) by requiring that offerors disclose post-submission changes in the status of persons and other resources described in a proposal. Moreover, ironically, a CO should ignore such a disclosure, since it would constitute a proposal revision, and acceptance of that revision would constitute discussions. I also agree that GAO has no business sustaining a protest because of an omission by an offeror, rather than an act or omission by an agency. I won't say whether I think that GAO has jurisdiction, because GAO determines its own jurisdiction, and since GAO is not part of the court system agencies cannot appeal to a court if it thinks GAO exceeded its authority by going beyond its jurisdiction. (At least, I don't think they can appeal to a court.) What agencies can do is tell GAO that they won't follow GAO's recommendations. If GAO recommends that an agency make a new award decision based on an omission by the successful offeror, and if the agency decides to comply with the GAO's recommendation, the successful offeror could protest the agency's decision at the Court of Federal Claims. And this is where proposal information vs. offer comes in. If an agency wants information about "proposed" key personnel, they should be clear about why they want it. If they want information about an offeror's personnel as merely indicative of the kinds of persons that the offeror would employ, but not as a promise that particular individuals will perform, then they should make that clear. On the other hand, if they want to bind the successful offeror to ensuring the performance of specific individuals, then they should make that clear by demanding promises about key personnel and writing the resultant contract accordingly. (I don't think that would be wise in most cases, but that's a topic for another thread.) If an RFP requires information about key personnel as merely indicative of the kinds of persons that offerors would employ, but not as promises about the performance of particular persons, then the agency should evaluate key personnel accordingly, without counting on getting particular persons. If the successful offeror failed to notify the CO of a change in the status of its personnel, then the agency's award decision should stand. Agencies should know that the status of people and resources often change within companies in the course of a lengthy source selection. In such a case the unavailability of a particular individual need not change the judgment about the kinds of persons the offeror would employ. But if the RFP required an offer, a promise, about the performance of particular persons, and if an offeror learns after submission that it can no longer keep its promise in that regard, then the offeror must notify the agency and may have to withdraw its proposal. If (a) the successful offeror did not notify the agency or withdraw, and if (b) the agency relied on the offeror's promise of particular key personnel in evaluating and choosing that offeror for award, and if (c) the agency unknowingly accepted a nonconforming offer, then the contractor is in breach, and the award should not stand. The agency should T for D and make a new award decision. The key to all this, in my opinion, is for "contracting" officers to think in terms of the law of contract formation (offer and acceptance) and think clearly about proposal information vs. offers. By the way, if you, as an offeror, learn that a "proposed" key person is no longer available, notify the CO by sending the resume of the substitute and let it go at that. If the CO acknowledges the notification that revises the proposal to remove the person who is no longer available, you can argue that the CO has engaged in discussions and must consider the substitute. If the CO refuses to consider the substitute, and if the procurement is worth the cost, protest--not to the GAO, but to the Court of Federal Claims, where I speculate you'd have a real chance to win.
  20. As ji20874 pointed out, there is nothing in the FAR about this. (Maybe in an agency supplement--I did not check.) Here is the "rule" as stated by the GAO earlier this year in General Revenue Corp., B-414220.2, 2017 CPD ¶ 106: Note that the GAO's rule does not take into consideration whether the names of key personnel are part of an offer (promise) that will become binding upon acceptance or just information for evaluation. There is no consideration of why or how the agency is going to evaluate key personnel, whether on a pass/fail or variable value basis. There is no consideration of whether the names of key personnel will be included in the resultant contract and whether there will be a key personnel clause providing for substitutions during performance with CO approval. The GAO looks at the matter strictly from the standpoint of fairness in proposal evaluation. The simple facts of biology (illness, injury, incapacitation due to various causes, and death) and the realities of business life (people quit or must be fired) make it hard or unreasonable to require contractors to employ and use specific persons throughout contract performance. A substitution process is essential. The GAO's rule is unfair, because it requires offerors to tell agencies when a substitution must be made, but does not guarantee them a process of substitution. In the protest, the agency issued the RFP in December 2015. It announced awards a year later, in December 2016. A year is a long time. It's not surprising that some key personnel might move on in that period. So what if an offeror identified someone as a key person and then, after the proposal submission, that person moved on? According to the GAO, the offeror would have to notify the CO. However, for the CO to entertain any revision, even the notice that a key person's name has to be removed because the person has become unavailable, would constitute discussions. For an offeror to notify the CO that a key person was no longer available, even if it had not promised that particular person, even though it would have to opportunity to make a substitution if the change had happened after award, would expose it to the risk that the CO would refuse to conduct discussions in order to allow it to submit a substitute. Absurd. I don't know whether this is a significant problem, but it has been a problem of sorts in some cases. So what's the solution? In light of the GAO's "rule," I propose that agencies include language such as the following in RFP Section L when they intend to require offerors to identify key personnel as merely indicative of offeror qualifications, but do not intend to require them to promise to employ those persons during contract performance: SUBSTITUTION OF PROPOSED KEY PERSONNEL (a) If, after submission of proposals, but before contract award, an offeror learns that any of its proposed key personnel are no longer available for contract performance, the contracting officer will permit the offeror to substitute another person, provided, however, that: (1) the Government finds that the person proposed would have been acceptable in accordance with the evaluation factors and (2) the person proposed is no longer available to the offeror for contract performance. (b) Depending on the substitute’s resume, he or she will receive either the same evaluation as the person proposed or a lower evaluation, as appropriate in accordance with the evaluation factors for award. However, under no circumstances will the substitute receive a better evaluation than the person proposed. An offeror will not be permitted to improve the evaluation of its proposal through key personnel substitution. (c) An offeror seeking to make such a substitution before award must notify the contracting officer in writing by submitting the substitute’s resume in accordance with Section L of this solicitation. (d) Substitutions made before contract award shall not be considered proposal revisions. Approval of any such substitution by the Government shall not constitute discussions as described in FAR 15.306(d) and FAR 52.215-1(a) and shall not require the Contracting Officer to make a competitive range determination. Such substitutions shall not be considered late proposal submissions, as described in FAR 52.215-1(c). After contract award, key personnel substitutions shall be processed in accordance with the contract Key Personnel clause. Would that be a FAR deviation? Some will think so. I will not debate it. If you think so, then don't use it, or seek approval for a FAR deviation. Innovators should do as they think best. There is another possibility. If the successful offeror must make a substitution before award, and if the proposed substitute is better than the one originally proposed, a CO might allow a late proposal modification in accordance with FAR 15.208(b)(2) and 52.215-1(c)(3)(ii)(B). Note that, as I posted previously, if proposed key personnel are part of an offer (promise), then an offeror must notify the CO and withdraw the offer in order to avoid the possibility of breach of contract. Those of you who believe in the Section 809 Panel might tell suggest to them that the current procedures in FAR 15.306, which are largely the product of GAO case law, are simply too stupid to keep in the regulation.
  21. What do you mean by "proposal/offer"? Did the offeror promise to provide Mercedes, clearly and unequivocally?
  22. Two questions: 1. You say that the source selection will be a tradeoff. How will the government evaluate the cars? Will it look to see only whether a proposed car meets the spec or will it evaluate the cars on other value-adding attributes, as well? 2. What will the contract say? Will it retain the spec in the solicitation or will it specify the car by make and model?
  23. As has previously been stated, FAR is silent on the matter. We have to think about this like contracting practitioners, not just as bureaucrats. Think contracts. Think offer and acceptance. What information did the agency ask for in its RFP? Did the agency ask the offerors to describe the key personnel that they are offering (promising) to employ under the contract or did it ask the offerors merely to describe the key personnel that they currently employ or that they plan to employ under the contract? Do you see the distinction? One description is prospectively contractually binding, while the other is not. If the agency asked offerors to describe the key personnel that they are offering (promising), and if after the submission of offers an offeror finds that it is no longer able to offer (promise) one or more of those persons, then it had better notify the agency and ask for the opportunity to revise its proposal. If it doesn't, and if the agency accepts its offer, then it will breach the contract on Day One. If denied the opportunity to revise its proposal, then the offeror had better withdraw its offer. If the agency asked offerors merely to describe the personnel that they intend or plan to employ, but did not ask them to make promises in that regard, then there should be no inherent legal obligation for offerors to notify the agency of changes in key personnel since proposal submission, unless the RFP instructed them to do so. I'm not sure what the GAO's stance is in this regard. The case cited by napolik had to do with task order proposals under a MATOC, which may involve different implications than proposals for new contracts. Agencies must think things through. Why do they want information about key personnel? Do they want promises about what persons offerors will employ or do they want indications of the general quality of offeror employees? It would be stupid to ask for promises, unless the acquisition is for R&D and the agency is going to make its pick primarily on the basis of the relative merits of offerors' principal investigators. In that case, offerors should and might obtain prospectively binding offers for subcontracts with prospective principal investigators in order to bind them to work under the contract. Otherwise, employees come and go and they die, and an offeror would be stupid to promise someone on the basis of simple employer/employee relations. Allowing an offeror to revise its proposal in the event of a change in key personnel would entail discussions, not clarifications. Once notified of a change, the agency must think about how to evaluate the proposal, whether to conduct discussions, and whether to include the offeror in the competitive range. Agencies should think about the possibility of key personnel changes between proposal submission and award and decide in advance what such changes would mean, if anything, in terms of offer and acceptance and how they would handle them.
  24. 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: 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: and The solicitation defined acceptable and unacceptable as follows: 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: 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.
  25. Where/ How to start learning?

    In order to identify "necessary" (but not mandatory) flowdown clauses, you have to read the clauses in your company's contract and determine what it require or potentially requires your company to do or refrain from doing. Then you have to think about what work you have hired a subcontractor to do and think about how if at all the clause in your contract might require something of your company that is being done by a subcontractor. For instance, suppose that your contract includes a changes clause giving the customer the right to unilaterally modify the work specification, and suppose that some of the work is being done by a sub. Now suppose that the customer issues a change order modifying the specification for the work that is being done by the sub. If you don't have a changes clause in the subcontract, you may not be able to issue a change order to the sub, passing on the change order from the customer. What if the sub refuses to go along? How can you comply? So you must include a changes clause in the subcontract to ensure that you can order the sub to comply. What if your customer can terminate your contract for convenience and you don't have a clause allowing you to terminate your subs? Thus, in order to identify necessary clauses you have to read and analyze your contract clauses, think about what they obligate or contingently obligate you to do or refrain from doing, and include clauses in subcontracts that allow you to pass on those obligations and contingent obligations to your subs. You need a lot of legal and technical know-how and experience to even understand the clauses in your company's contract, much less determine what obligations and contingent obligations you might need to pass on to your subs. That's not the kind of work that I would assign to a newbie, even for training purposes. It's not an easy thing. You need some prep study and time on the job before you can do reliable work at that kind of analysis. Baby steps.
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