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Guardian

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  1. Beyond the question of whether it is unduly restrictive, I am not convinced as to how we would accomplish this. The sentence above could be interpreted as "the subcontractor shall not...." It just seems to me that it is written using passive language, which makes it all the less clear and enforceable. Here it is again-- DO state that a firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm. If I translate that into something I can incorporate into a solicitation, preserving as much of the language as I can, then it might read-- [A] firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm. Per the above condition, if "a firm may attend only one oral presentation," then perhaps it may also attend more than one. If it "may not," then what are our enforcement options if a firm does not comply? Currently my office requires me to sign a completed checklist after every review certifying in part that our language is consistent throughout a document. For instance, if I use Vendor, stick with Vendor throughout, Schedule Contract Holder, stick with Schedule Contract Holder, Offeror, you get the point. What do we mean by "firm" and the explicating phrase thereafter? This seems like a backhanded, passive way of tell subcontractors what they may or may not do, and it says "may," by the way, not shall. So then, it does not sound like we are too serious or convinced ourselves. This is all the stuff they teach over at the local acquisition institute; I am just following what years of classes have instructed me to do and look out for. Why not instead say "Neither Contractors nor Subcontractors shall attend more than one oral presentation"? Speaking for myself, I never direct subcontractors in my contracts, nor do I direct them in my solicitations. Is my thinking in this regard wrongful? Is it OK to direct the subcontractors via the solicitation language as to what they may and may not do? This is a important question if I am to be convinced from my current opinion. If the answer is "no," that we should not be directing subcontractors in solicitations, just as we should not be directing them in contracts, then how do we accomplish this aim? I would think the answer is obvious. We need to ensure compliance with this rule by directing our prospective contractors. But how would we practically expect them to ensure as much? They could ask their subcontractors who else they are working for; but in my opinion, that is none of their business and if I were a subcontractor, I have a pretty good idea how I would respond. So then, it seems to me that it would have to be accomplished by way of a non-compete agreement or something of the sort, meaning pretty much that but we might give it some other name so people cannot say that is what it really is. If you do not agree, then what other way could it be done? My issue is not with the nature of the circumstances, that there is little risk because there are probably enough impressive subcontractors to go around or that the odds of protest are low. My issue is that it is per se wrong to direct subcontractors through our solicitation language. My issue is that it is mistaken to see the stifling of competition as acceptable when there are better approaches that can mitigate the risks inherent when the Government meets with offerors singly as opposed to requiring simultaneous submissions.
  2. Sure, in fact, when I brainstormed about this on my ride down the interstate, this was the other workaround I arrived at, which is to say, in addition to the "open-book" tech challenge approach. Without giving the PM either of the options, I highlighted my concerns. He immediately answered with "can't we give everyone the questions up front"? Being the consummate team-player and wise CO that I am, I figured I would let him think the idea was all his. To your point about the nature of the requirement and how many subcontractors are likely available within this marketplace--by my understanding, the answer is "plenty." However, I am not the SME, nor does this lessen my discomfort about restricting which companies prospective contractors can subcontract to. So then, do we mean to say that the Government may unfavorably rate or even excluded from further consideration for an award those contractors proposing to use a subcontractor that others have also proposed? A particular subcontractor can make the difference in whether a company is selected for an award. Early in my career, company representatives would from time-to-time call to complain that manufacturers routinely provided lower pricing to their competitors, the same ones that funneled them more business. I would listen, but there is nothing unethical or illegal about this. But if we examine the rule being submitted to my office as a condition for oral presentations, I see problems. At best, it is inherently flawed, promoting neither fairness nor impartiality between offerors. What does it encourage--a race to gain the loyalties of the most preferred firms inside the beltway, quid pro quos behind an unpierced veil,, instructions contrary to acquisition's core principles? Where does this leave small businesses looking to grown and prove themselves? Restricting choice rarely helps the customer and taxpayers and I still have doubts such a condition would hold up in a protest.
  3. I am the CO assigned to a requirement for services. My program office has elected to conduct oral presentations. An evaluation plan with the following language was submitted to me-- DO state that a firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm. If by this language, we mean to say that a contractor (prime) competing for an award under this solicitation may not participate both in an oral presentation for itself and as a subcontractor for a competing contractor, then I am fine with this language. However, if by this language, we mean to direct subcontractors via the solicitation and restrict them from doing business with more than one contractor, then I am not OK with this language. My assumptions are as follows: 1) The solicitation functions to direct the contractors, not their subcontractors. Yes, there are terms and conditions that trickle down to the subcontractor level, for example, ensuring that subcontractors have made adequate representations and certifications. But that is substantially different than limiting one's ability to engage in free-enterprise at its own discretion. 2) Because of the generally-accepted principles associated with the competitive process, e.g., non-disclosure , prohibitions against collusion, freedom to contract in furtherance of one's best interests, avoidance of unduly restrictive conditions, to name a few, the only practical means by which the prime contractor could assure compliance with such a mandate would be to have its subcontractor(s) sign some sort of non-compete agreement. My cursory understanding of NCAs for companies as opposed to employees is that they are often unenforceable and run contrary to the principles of free-commerce and mercantilism. When I inquired as to the primary concern giving rise this language, I was told that because the presentations will incorporate tech challenge questions, the Government is worried that these questions could be shared with contractors who have not yet presented by subcontractors working with more than one competitor, thereby providing a competitive advantage. While I understand this concern, I think there are better ways to mitigate the risks that are inherent. An easy way would be for the Government to make the tech challenge questions publicly-available with the solicitation. Not all program offices are OK with this approach. Fortunately ours is. Another solution might be to prohibit subcontractor participation in the oral presentation altogether. It is worth mentioning that the solicitation language at issue only restricts subcontractors from participating in more than one oral presentation; it does not prohibit a prime from establishing a contractor-subcontractor relationship with another firm to which one of its competitors also intends to subcontract. There are other inherent concerns associate with contractors using the same subcontractor in their oral presentations. Certain sensitive information could be exposed. However, is it not the responsibility of those contractors to take needed measures to safeguard such information, for example, by asking those with whom they engage to sign NDAs? This seems to me a logical act of self-preservation. Does anyone else find the solicitation language for oral presentations (provided above) to be unduly restrictive? I worry that inclusion of such language could trigger a pre-solicitation protest.
  4. It is good to hear this from a veteran KO, Joel. Aside from the differences of opinion on terms and processes, what has always concerned me the most is a reviewer's unwillingness to support their review comments. It never ceases to amaze me that such approaches are tolerated by those individuals' supervisors. My asking for justification is seemingly taken as an affront. I was recently told by a hiring manager that highly-skilled 1102s, which he defined as those at the post-GS-13 grade-levels, were the most difficult to hire, because the pool of qualified applicants is so light. Yet, when a practitioner is anything but apathetic, reads, applies great thought and shows concern for their work product, those same individuals are made to feel like nuisances. Others have told me there are a select few agencies where the culture is not like this. However, I think the problem is widespread enough and certainly much worse in particular offices, unfortunately because of a few individuals. I am currently leading a team, mentoring newer KOs and I tell everyone up front to challenge my assertions at will, just come at me with your best research. When someone ends their assertions by writing "plain and simple," that is a red flag for me. Many of us nowadays went to law or graduate school or were officers in the military. Does a director really think that by ending their unsupported claim with such bromides is enough to assuage a talented discerning KO's legitimate concerns? Even worse is when they conclude the conversation by saying "just do it; no more discussion."
  5. Since I inherited this action from another CO (who was involved in requesting the original legal review), I reached back out to one of our reviewing attorneys again this morning to obtain clarification. The attorney indicates that the work is within the general scope of the original contract, i.e., no cardinal changes are being made. My understanding of the litmus test for determining a proposed action to be "within the general scope" is whether it seems more than likely that the contracting parties could have reasonably anticipated such a change at the time of original award. Another attorney went a step further, asking "have the capabilities changed to an extent" that any of the original offerors could make the argument that they might have otherwise submitted a better proposal than the one selected for award? In our case, I believe the answers are "yes" and "no," respectively. If I ask myself as a CO, could the Government and this contractor have reasonably anticipated at the time of award, that after four-years (assuming we exercised all the options, which we did) we might need to extend for a few additional months while awarding a recompeted action? The answer is a resounding "yes;" it happens often enough in the world of federal contracting, and by the way, these are commercial items we are purchasing; we have to effectuate any changes bilaterally. Why you might ask, are we publicizing a sole source justification? For one, our agency's policy requires us to do so. The fact that we are exceeding the obligation on the original contract, usually sounds the alarm, that we need a justification. In short, the same attorneys who advised us of their opinion that this is within scope, also advised us to write and publish a justification. I know this is handled both ways among varying agencies (justification versus no justification). My question would be, what harm could it possibly do, other than cost the Government administratively for something perhaps no one in the contractor community is very much concerned about? To that, I would reply, better to publicize an SSJ to apprise everyone of our intentions, than risk a protest, which would be really costly, and if a contractor is going to protest, then let them do so now upon reading our justification I think we are both in agreement on the meaning of the term, "option." I view it as a "term of art" and the FAR is specific in its definition.
  6. Yes, bottom line, we do want to expand the contract beyond whatever options were originally included under 52.217-9 and yes, the reason is to be able to cover a period prior to the next recompete. The reviewers and I all agree we need a sole source justification (or JEFO if you like--I'm not getting too bogged down with the specifics for purposes of anonymity). We all agree that the funded extension needs to be accomplished bilaterally. The difference of opinion is simple. The reviewers are insisting we call the extension (bilateral) an option on the SSJ and on the modification itself. I said, but an option is unilateral (per the terms stipulated in the option clause) and this is anything but. Therefore, per the FAR and definition of "option" as a term of art, what they are proposing is not an option. The reviewers retorted, "options can be bilateral or unilateral." Well, I respectfully disagree.
  7. Yes, Bob, FAR clause 52.217-9 is incorporated. In addition to the proposed contract extension by mutual agreement of the parties for which there is a funding commitment, the office wants to incorporate three "short" options as safety nets in case we fall behind on our milestones in awarding the recompeted contract. I indicated that we need to modify to increase the ceiling in paragraph c of that same option clause, "...shall not exceed xx (months) (years)," as we are approaching the maximum number of months therein specified. Do you see any issues with this approach?
  8. It's a supplemental agreement within scope. What clause am I citing? Well Don Mansfield probably does not think I need to cite any clause. Is not a signature from an authorized representative of the contractor enough? Hmm, perhaps I would cite the commercial items clause, paragraph c (52.212-4(c) Changes), but isn't that superfluous? Why isn't an action based on the mutual agreement of the parties a bilateral action, you ask? It is, I agree with you; never said it was not.
  9. Per the title of this discussion, FAR section 2.101 states, "'Option' means a unilateral right in a contract by which, for a specified time, the Government may elect to purchase additional supplies or services called for by the contract, or may elect to extend the term of the contract." My office seeks to extend the term of a contract by several months on a sole source basis. Our attorney offered his legal opinion, saying he believed such an action was within scope of the original action and therefore permissible. I am doing the contract extension via a modification by the mutual agreement of the parties. When I sent my package for review, the comment was as follows, "This [contract extension] is an Option (to be labeled sequentially one number after the current option we are under." When I pointed out the above FAR citation and my understanding of an Option as a term of art, i.e., an instrument being the unilateral right of the Government, I was told that "Options can be bilateral," and to call it an Option and move on. Does anyone know of any justification for the reviewer's assertion?
  10. General, you offer a lot of good suggestions above for evaluation criteria one might use to conduct a downselect. My original question is focused on how to support a selection decision through documentation after the Government has determined which criteria it will use to evaluate. Our criteria for evaluation must always be stated in our solicitation. However, the way we document our evaluation and selection does not necessarily have to be included in the solicitation language. I have found that many decision authorities prefer to tell contractors a lot about how they will document their decisions. Whether this is a good idea is arguable. When was the last time anybody went on a job interview and the hiring manager and panel disclosed to the candidate exactly how they were going to document her evaluation behind the scenes? Most of the time, she'd be lucky to get a call back. In my office, we tend to take the stated criteria (for example, any of the criteria you suggested above) and apply it to each individual contractor performing a "thorough" evaluation. The evaluation team then documents each contractor relative to that criteria. We do that for each contractor, be it two or twenty-two. We then take all that information and perform a comparative analysis. Generally General, this involves comparing each contractor that will move on to Phase Two to each contractor that will not. We tend to cut and paste our individual findings for each contractor and string those statements (findings) together using comparative language. The following serves as a truncated example: Phase 1 - Individual Evaluations of Experience Contractor A Contractor A has recent experience in three contracts (within the past three years) performing work largely comparable to that described in the SOW. Contractor B Contractor B has recent experience in one contract (within the past three years) performing work largely comparable to that described in the SOW. Phase 2 - Comparative Evaluations of Experience Contractor A is superior to Contract B in the area of Experience as Contractor A has recent experience in three contracts (within the past three years) performing work largely comparable to that described in the SOW versus Contractor B, which has recent experience in one contract (within the past three years) performing work largely comparable to that described in the SOW. Granted, this is an overly general example short on specifics. But it is an example of the model my office seems to favor. The Individual Evaluations can run into double digit pages (in a Fair Opportunity selection) depending on how many offerors we are required to evaluate. The comparative evaluations, which tend to regurgitate the same information found in the Individual Evaluations can also run into double digits page-wise. The template in the PIL Boot Camp Workbook, specifically Technique 5, consolidates the above information into a single document, which it refers to as a "Comparative Evaluation." I prefer this approach on the surface, as it provides a model and rhythm for moving through evaluations of multiple offerors with a level of efficiency and less documentation. General, based on the criteria you suggested above, how would you document your evaluations? Would you not use a comparative analysis to downselect? How then might you otherwise document your downselect decision?
  11. Ibn Battuta, My dear father was a sergeant in the Army. I believe this is a term he brought back from his enlistment which my brother and I heard countless time growing up, among many of his other favorite sayings and aphorisms from the service. I am sorry, no harm or insult was intended I chuckle every time I think of that saying, which in this case, I replaced with a euphemism. As you can guess, it means focused on minor (perhaps trivial) details. I never meant to come across as vulgar, nor subject you to a lecture. This forum can get energetic and mildly sarky, as I'm sure you are aware; but it was not my goal to make you feel anything less than someone with whom I would want to share insights and take advice.
  12. I would draw your attention to FAR 1.108(a), Words and terms, which states, "Definitions in part 2 apply to the entire regulation unless specifically defined in another part, subpart, section, provision, or clause. Words or terms defined in a specific part, subpart, section, provision, or clause have that meaning when used in that part, subpart, section, provision, or clause. Undefined words retain their common dictionary meaning." Moreover, I would point you to the link JI included, specifically the cited GAO case, AlliantCorps, LLC; B-417126; B417126.3; B417126.4; February 27, 2019 (see page 31 under the GAO Guide for Comparative Evaluations). The GAO has rarely held contracting officers to a standard of "beyond reproach," or "perfection in how we document of our selection decisions." In fact, such standards are antithetical to streamlining as contemplated by FASA and initiatives such as the DHS PIL. I'm all for semantics and a good hardy debate, but rhetorical interchanges over the meaning of commonly used words border on an exercising of "picking fly feces out of pepper with boxing gloves." That is an exercise, which I for one, wish not to engage. The GAO has set a standard affording KOs generous latitude. In documenting a decision, we are to meet the minimum requirements as set forth within the solicitation's language (read AlliantCorps, LLC, above cited). Sometimes less is more. I have see instances in which our attorneys ask us to create multiple layers documenting our evaluation decisions under fair opportunity. Since they are equally worried about including something in the subsequent layer that was not in the previous one, it becomes an unnecessary and redundant exercise of cutting and pasting. We are all human. We do the best we can and if we read GAO precedent, then we know we worry far too much at the sake of efficiency and innovation. Maybe it's our agency attorneys and others giving rise to such worry. When an attorney gives his or her opinion, we should not be afraid to request the legal basis of that opinion. Sometimes I get a reply of, "that is the way we have always done it. I tend to shudder at such a response. Every selection decision is going to be tainted with at least a teaspoon of subjectivity. More often than not, the subjectivity is from the evaluation team and we as KOs do our best to minimize it. I have spent a long time thinking about the perfect evaluation criteria. To date, no one, regardless of age, experience or intellect, has been able to gift it to me. I am not confident that day will ever come. We must also bear in mind, that it is never a one-size-fits-all approach. The GAO focuses on points of protest that would make a substantive difference in the results of an evaluation, i.e., that which might tip the scales in favor of another offeror. That ought to continue to be our focus.
  13. JI, Innovation Technique 5, Comparative Analysis, states "Probably more suited to acquisitions with a few quotes and a few evaluation factors." The point of Phase One, a downselect, is to narrow a larger pool of offerors down to a more manageable pool, i,e, best qualified. Based on our market research, I can conjecture as to how many task order proposals we might receive. However, I cannot say with any certainty. I have to presuppose that all contractors under the socio-economic category for which we are setting our FOPR aside might submit task order proposals. It should be noted that there will be a page limit placed on their responses to Phase One. Given that we will evaluate only one non-price factor, while also considering price, we have met the second condition of the above statement, which is "Probably more suited to acquisition with...a few evaluation factors." During Phase Two, we will also apply a comparative analysis. In this subsequent phase, both criterium recommended above will be met, that is, less offerors (only the most qualified) and few evaluation criteria (we will only evaluate technical approach in Phase Two). Per the PIL's recommendation, an immediate comparative analysis seems more appropriate in Phase Two when we are guaranteed less offerors to evaluate. However, we are proposing to apply an immediate comparative analysis in both phases one and two. Given that we do not know how many offerors will submit responses to Phase One, might there be a better approach than immediate comparative analysis to incorporate into the downselect phase, Phase One? It is in the Government's best interest to apply a trade off approach for my agency's requirement. The approach described above would not work well for our requirement as it does not apply the weighing found in a tradeoff. Instead it consistently represents differences between offerors, be they marginal or wide, by a single point in every case. For example, let's say Company D's experience is only slightly better than that of Company C. However, Company C's experience is significantly better than Company A's. In both comparison, we assign only a one point difference between the two. The same shortcomings of this approach would manifest in past performance or any other non-price factor. The sequential points approach plays out with even greater imbalance when we factor in our scores for price. One company might receive a "4", whereas the next lowest priced company receives a "3". The difference in between their prices might be less than $100 or a some near inconsequential amount in a multi-million dollar acquisition. In fact, Offerors B, A and C could all be neck-in-neck on pricing, while D could be 100% more than the next lowest price. However, as you can see from the hypothetical scenario above, D is selected for an award. The net result might be that the Government ends up paying significantly more for an offeror that is only slightly better in the other factors.
  14. I understand, Don. It seems the "even swaps" method would work better using rankings as the HBR article states. I like the ranking or scaling method for this approach. However, I know a lot of contracts managers are averse to the idea of ranking. Why do you think this is? Perhaps it is equated with numeric scoring, which has become a bit of an anathema. For example, no one wants to explain to the GAO why an offeror lost to an awardee by a single point. It seems to me we rank offerors regardless as evaluators and selection authorities, if in no other way, in our minds as we are performing the evaluation. The question is whether we document it as part of the file, making it something subject to discovery. If we don't rank, then we have to document our evaluation narratively, which some might consider a more difficult exercise, leading to something less definitive and more abstract. No. Some contracts managers believe that we have to document risks and benefits as part of every evaluation, something pushed by our attorneys, as well. Are the attorneys at your agency encouraged to attend these seminars? I appreciate the innovation lab and the work it does. Unfortunately, I think the continued aversion to risk and unwillingness to adopt the techniques the lab suggests still emanate from the torso down. Some view the concept of innovation as the innovation lab having provided them with a finite list of techniques. FAR 16.5's use of the term, "broad discretion," allows for much more, i.e., the lab is but a starting point and does not preclude the application of further innovation and other techniques not therein described. A division will adopt an innovative approach, but then becomes reliant on only that one approach. Contracts managers become unwilling to flex and further adapt that approach. Program offices become lazy, recycling the same evaluation method time and again as if it is a one-size fits all approach to selection. It can be rather stressful for the thinkers and creative types in the 1102 community who do not want to be relegated to factory work. Those for whom employee retention is a concern somehow remain baffled over the attrition rates. The question for the practitioner is whether it is better around the bend.
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