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Guardian

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  1. 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."
  2. 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.
  3. 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.
  4. 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?
  5. 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.
  6. 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?
  7. 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?
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. I am working with our customer to write evaluation criteria for a Fair Opportunity Proposals Request (FOPR) against an MA IDIQ/GWAC. I found a document online entitled "Air Force Materiel Command (AFMC) Guiding Principles For Fair Opportunity Selection Under Federal Acquisition Regulation (FAR) 16.505(b)(1)." To quote from within, "[concerning FOPRs and comparative analyses] No process is dictated by FAR 16.5. Immediate comparison of responses received is allowed without having to "independently score" proposals and then separately do comparative analysis." This is stated in comparison to the procedures required by FAR subpart 15.3. The acquisition team has agreed to use a multiphase approach, whereby phase one would incorporate a downselect. It is within this first phase that we would like to move immediately to a comparative analysis on a single non-price factor, considering also price, as opposed to first conducting an in-depth review of each proposal against the factors in the solicitation. Our attorney accepts this approach. The estimated award amount is well below the threshold for protestability. However, I am receiving push-back from above. That person says they do not understand how we can do a comparative analysis without first conducting an independent evaluation of each contractor (and document accordingly), be it through a table or however. I explained that any comparative analysis is always going to be based on having first looked at each individual proposal and assessing the factors that we say we will. I went on to explain that the time saved is realized in the documentation of phase one, meaning that we include all relevant information to justify our downselect in a single document labeled "Phase One - Comparative Analysis." I was able to find another article online entitled "How to Write a Comparative Analysis" from the Harvard College Writing Center." One suggested approach is as follows-- Organizational Scheme. Your introduction will include your frame of reference, grounds for comparison, and thesis. There are two basic ways to organize the body of your paper. In text-by-text, you discuss all of A, then all of B. In point-by-point, you alternate points about A with comparable points about B. If you think that B extends A, you'll probably use a text-by-text scheme; if you see A and B engaged in debate, a point-by-point scheme will draw attention to the conflict. Be aware, however, that the point-by- point scheme can come off as a ping-pong game. You can avoid this effect by grouping more than one point together, thereby cutting down on the number of times you alternate from A to B. But no matter which organizational scheme you choose, you need not give equal time to similarities and differences. In fact, your paper will be more interesting if you get to the heart of your argument as quickly as possible. [end citation] My question is, do any of the contributors have another suggested approach for how to write the comparative analysis barring an initial independent evaluation of each contractor in the downselect phase? [or] Does anyone have any suggestions as how I can make a more compelling case to my management? I have addressed with them and general counsel my concerns that our required templates mandated for fair opportunity selection tend to use part 15 language. The attorneys and others are consistently resorting to part 15 terms during conferences. Personally, I am a stickler for language and use of the proper terminology. I for one happen to think that is the starting point, and even though I am working with people who should know otherwise, I tend to question if they know the differences when I hear them apply the wrong terms. We also tend to overly complicate our fair opportunity selection procedures by aligning them more so with those found in part 15. Lastly, I am curious, does anyone have an opinion as to which agency seems to be the most innovative in its approach to simplified procedures and fair opportunity awards using category management? I am reading more and more that this reluctance to move away from FAR part 15 procedures, when we are not under the authority of part 15, is a widespread enough problem in Government.
  13. So far, so good. I made a decision before the meeting to take the high road. The chairperson sat in the conference room for most of the morning with a sour look on her face. She even tried to call me out for an inconsistency (something I knew I had done, but was not able to change in the handout package before our 9am kick-off). I smiled and said, "good catch; thanks for reminding me. Let's address that for a second." I did not arrive into the Government until my mid-30s. Before that, I did a number of things. I was a tutor for disabled people, a graduate research assistant at a university, a committed student and a manager/foreperson in construction-related services. I spent the better part of ten years dealing with people who, albeit highly-skilled, could be extremely difficult to manage. One of our best brick-masons, a freelancer at that point, was formerly unionized and had never shed his union mentality. He was always going to be in charge (and break at least twice an hour), but he did very good work. So I learned to apply some reverse psychology to lead this somewhat obstinate and quintessentially passive aggressive tradesman to complete projects. We even became friends to some degree, but it was touch-and-go. He was never going to be "matter-of-factly" ordered to do anything and more often than not, the particulars of any job were going to be on his terms. We had some great times together, saw some exceptional outcomes, but after several years of this, admittedly, I was exhausted. I feel like the Government is a blessing in many ways relative to this former life and the alternatives; but am not here to minimize the challenges of being an 1102. These were great experiences to have as a young man, but I am happy to be where I am now. I am affected by the summer metro shutdown in D.C. (coming to a close this Sunday, as the platforms south of Reagan National have been rebuilt). In early July we had a contractor bus driver from Texas, whose job it was that afternoon, to get us all from the Pentagon to a metro station in northern Fairfax County. We were packed on this bus like sardines in a can. I was sitting along the aisle directly behind the driver, immersed in a book. At one point, a young lady made her way to the front to inform me that we had missed our exit several miles back. We began discussing our predicament rather loudly. The traffic was significant. Being newer to the area, I immediately logged into my GPS and began guiding this driver in the right direct (she had been headed to Woodbridge). What was most concerning was that when I looked behind me, about 80% of the passengers were either on their phones texting or playing games or listening to music, seemingly indifferent or blissfully unaware that we had put ourselves about 45 minutes off course amid the rush hour traffic. There was a guy across from me in a suit with well manicured silver-hair, having a business conversation, apparently so distracted that he did not realize we were headed west instead of south. His conversation continued for another 40 minutes at least. One passenger behind me made sure to let me know that his GPS said to get off at the exit we had just passed. "Why are you telling her to go this way?" he scolded. I replied that he was more than welcome to take my spot and direct the driver himself. At that, he shrank back into the seat lining; he was not interested in being a navigator, only an armchair quarterback. People are put in positions of authority for all types of reasons. People over six feet tall are many more times likely to be hired as managers, even though there is no scientific evidence that as a group they make better or more qualified leaders. Jeff Bezos, currently the wealthiest man in America, is only about 5'7". So is Nick Saban. In fact, most of the world's wealthiest people are of average height or less. Maybe it's that people who have endured a slight disadvantage are made better by it. But, I have digressed from my main point. I had accomplished quite a bit at work recently, but that day on the bus was one of the most satisfying I had had in some time. When I looked behind me at what was a sea of technology-distracted and clueless faces, I realized that what most situations call for is someone who can rise to the task with calm and aplomb to get everyone back on the right path. Throughout the kick-off meeting, I reminded myself of JI's advice and that of Teddy Roosevelt, who said, "speak softly and carry a big stick."
  14. If 52.212-4 was IBR , then it should be evident to the contractor that it has not been tailored. Personally, I don't have a problem incorporating key clauses in full text, even if the standard practice is to IBR. The way I look at it is offerors should be reading the complete clause either way; providing them the full text ensures they don't have to look it up or risk referencing an older version. I also think it's perhaps helpful to small businesses that don't have in-house counsel. Either way is acceptable. I tend to be a fundamentalist in some respects. So then, I initially incorporated the clause in full text as the conforming contract instructed. The reviewer told me that was extraneous and to instead IBR. I don't get too hung up on those things. Again, I think either way is fine.
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