Matthew Fleharty

That book (Thinking Fast and Slow) has so much value that I take the time to re-read it each year - maybe one day I'll be able to retain all of its content.

Why? In a point scoring system where the amounts are transparent (assuming that is the technique used), wouldn't the difference/significance be readily apparent? I'd like to hear your thoughts on the issue, but humans can't read frogs' minds so I'll need your assistance to understand your point.

Appreciate the feedback and the references Vern. I don't intend to parse words here or inhibit the usage of the HTRFRP process, I'm quite excited by its prospects; however, I'm curious: should some consideration be given to the fact that those prior decisions were made in an environment where the Best Value Continuum was thought to consist of LPTA through Tradeoff? I think so, which is why I'm trying to understand the potential difference (if any) between something being a "significant factor" and something being "meaningfully considered." I'm not trying to hit the brakes here and not embrace HTRFRP or other acquisition improvements...but I know others will so I'd like to discuss the issues surrounding developments like these as much as possible so I'm prepared with credible arguments to move us forward. Apologies in advance if my relative youth or lack of experience is inhibiting the process. EDIT (adding context): I think I'm getting hung up by the following two paragraphs from the Sevatec decision (emphasis added):

I can agree with that as a permissible argument, but I don't think my previous argument is wholly without merit. The definitions of significant (from The American Heritage Dictionary) are: For definition #2, could one fashion evaluation factors whose relative importance resulted in cost or price not "having or likely to have a major effect" on the selection decision? For definition #3, I think "amount of quantity" could speak directly to the relative importance of the various evaluation factors. I will grant, however, that I need to go do some more reading on the cases where the GAO used the "significant factor" rule to fully understand their position on the issue.

Just for clarity's sake - CICA does not require price to be a significant factor, just a consideration (41 U.S. Code § 3306): Additionally, based on paragraph (c)(i), if other factors are significantly more important than cost or price, then wouldn't it follow that cost or price is not a significant factor in those circumstances?

I like this interpretation/definition. EDIT: Would the process identified in the solicitation for assessing the fairness and reasonableness of price be what influences offerors' pricing decisions? Could/should one expect different results if the promulgated technique is comparison of proposed prices received in response to the solicitation versus a more detailed analysis as used by the GSA team?

Vern, I'm just taking the information in front of me and analyzing it - I'm certainly not firm in my position, just trying to drive a discussion on the issue. I find merit in your argument that disqualification could certainly meet the test of substantial; however, I quoted the court who decided the case in reaching my conclusion which I still think conflicts with the definition you provided. Consider the juxtaposition between the two: Definition: "Considerable in importance" GAO: "Relatively low importance of price..." Can one have both "considerable" and "relatively low" at the same time? As an aside, I don't tend to try to find the most restrictive interpretation - I also find value in determining the least restrictive, but a better exercise, and what I hope we're doing through this conversation/debate, is arriving at what is the most likely interpretation.

Vern: I don't think the HTROFRP approach satisfies FAR 15.403-1(c)(1)(I)(A), particularly the requirement that "price is a substantial factor in source selection." I think the consideration of price (which is what occurred in the HTROFRP approach to satisfy the CICA requirements) and price as a substantial factor in source selection are different. The only substantial factor in source selection at play in HTROFRP is technical...I think those views are supported by the GAO's analysis regarding consideration of price on pg. 8 which states "The relatively low importance of price in an evaluation scheme that does not contemplate tradeoffs, as is the case here, is unobjectionable." Maybe I'm wrong, I'm certainly always open to hearing other opinions on issues. What are your thoughts Vern (and others)?

From a theory standpoint, I don't think one can satisfy the requirement of "adequate price competition" in a HTROFRP (highest technically rated offeror with a fair and reasonable price) environment because offerors are not competing on price, they are competing on based on technical ratings. I suspect the GSA contracting team understood this and showed considerable foresight in fashioning the fair and reasonable price evaluation methodology in the manner they did.

Would you at least agree that some clarification of the Best Value Continuum is warranted (regardless of whether or not my proposed clarification was the right way to go about it or not)?

I'm surprised that this was the first time these procedures were used (or used and challenged) because, from an academic standpoint, Lowest Price Technically Acceptable (LPTA) and Highest Rated Technical Offer (HRTO) are the two, opposite ends of the best value continuum with Tradeoff occupying the space in between. Nevertheless, after looking through educational materials currently available from DAU and other department sources, I see why: the Source Selection process that we're teaching the contracting community doesn't discuss HRTO (though I've yet to look at the CLCs). See for example: https://dap.dau.mil/acquipedia/Lists/Acquipedia Article/Attachments/3384/Best Value Continuum and Source Selection - June 30 2015.pdf https://dap.dau.mil/acquipedia/Pages/ArticleDetails.aspx?aid=5201f734-3bce-4c5f-a5a3-47551df77ea5 I think it would be valuable for the FAR Council to update FAR 15.101 "Best Value Continuum" which currently only contains sub-sections for the Tradeoff Process (15.101-1) and LPTA (15.101-2) with a HRTO section (presumably 15.101-3) so that protests/challenges to the approach are less likely and so that acquisition professionals are more aware of the approach's existence and permissibility. Thoughts?

Agreed.

The "highest technically rated [ ] with a fair and reasonable price" methodology makes a lot of sense for this situation and others like it where there will be further competition at the task order level.

Just wanted to post another book that I enjoyed reading: The Development of Modern Government Contract Law: A Personal Perspective by C. Stanley Dees. The contents of the book can be found at the following link: https://lrus.wolterskluwer.com/store/products/development-modern-government-contract-law-personal-perspective-prod-10040886-0001/softcover-book-item-1-10040886-0001. Each chapter is around 15-20 pages in length and the content is from the perspective of an industry contracts attorney. I thought the book read smoothly and, while legally focused, is still an interesting read for contracting professionals.

j_dude77 The language you underlined permits more ratings than an overall or "rolled up" rating for each offeror. While you state "each factor" in your post, that is not responsive to the OP's question.

Some might argue "a mere peppercorn will suffice" though I think appropriate/adequate consideration is a matter of business judgment. You might enjoy the following literature on the subject and for further research look up terms such as "peppercorn theory of consideration": http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2867&context=wmlr

Sound advice, as usual, from Vern. If you'd like the FAR citation regarding his analysis, refer to FAR 15.405(b) which states: "The contracting officer’s primary concern is the overall price the Government will actually pay. The contracting officer’s objective is to negotiate a contract of a type and with a price providing the contractor the greatest incentive for efficient and economical performance. The negotiation of a contract type and a price are related and should be considered together with the issues of risk and uncertainty to the contractor and the Government. Therefore, the contracting officer should not become preoccupied with any single element and should balance the contract type, cost, and profit or fee negotiated to achieve a total result -- a price that is fair and reasonable to both the Government and the contractor."

Available to whom?

Vern, Just out of curiousity, where is your definition from?

Don't assume just because the term was used in an RFP that it was proper - I second Retreadfed's recommendation. Ask the drafter and reference the individual to the two definitions that the FAR actually contains while noting that the standalone term "commercially available" is not one of them.

Whynot, The FAR provides two separate definitions for each term (though the term you use of "commercially available" is used in the FAR as "commercially available off the shelf" (COTS))...see FAR 2.101 and FAR 12.103. Are you asking about the distinction between those two definitions in the FAR or someone/somewehere else's attempted distinction?

I'm not here for one either H2H (which is why I've also tried to propose ways to make the current construct work better), but that quote of mine that you reposted is not synonymous with your scenario in point 1. Read the two one after another...my example deals with them outright not holding the events - yours takes issue with the number of attendees (a point I didn't bring up). You and I are on the same page with respect to your comments in paragraph 3 - (see my first and second bullet). We've even both stated that to encourage proactive behavior by the prime, one should consider the use of incentives. So if you want to characterize me as missing the issues, go ahead, but I think our positions are more closely aligned that you're indicating.

The contract is governed by the terms and conditions which includes the FAR clauses, but Contracting Officers have a responsibility/requirement to ensure "all requirements of law, executive orders, regulations, and all other applicable procedures...have been met" (FAR 1.602-1(a)). In other words, a CO does not get to cherry pick the statutory and FAR requirements as they see fit - but clauses that are not applicable or required are not included. In the example you mention, the FAR does not require a subcontracting plan for small business concerns (see FAR 19.702(b)(1)) so the resulting clauses are not required - why would they need to be?

What does this even mean? The FAR has specific requirements for when a subcontracting plan is required and when it isn't. Are you advocating that in situations where a subcontracting plan is not required by FAR 19.702 there should be? Do you even know if the clauses I provided you previously are in the subject contract you're concerned with? What does this mean?

H2H, You seem to be putting a lot of words into my mouth. At no point did I advocate holding the prime responsible for the number of attendees or imposing a "requirement" (still have no idea what this would mean) beyond the good faith effort standard. What I took exception to were Pepe's remarks that the good faith effort was completely nebulous - I'll grant it can be, if the subcontracting plan is written poorly/broadly and contract administration is poor; however, the good faith effort standard can be made less nebulous by including specific standards and/or actions for the prime to take that are consistent with the FAR requirement to provide maximum practicable opportunity to participate in contract performance consistent with its efficient performance. How is that missing the mark? I'm trying to provide advice on how to make the current FAR construct/requirements work better rather than throwing up my hands (as it seems many would do in this case) and accepting that this is a completely futile situation...maybe I'm misguided in trying, but I'd rather try and fail than do otherwise.