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Competing TOs under IDIQs - FAR 16 v FAR 15

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I am a CO on a multi-award ID/IQ contract with a broad statement of work where work is more specifically defined in the SOWs of individual TOs. In the past year or so since the base ID/IQ contracts were awarded, the source selection procedures for competing TOs followed the FAR 15 model. Right now, we are soliciting for a follow-on TO and giving fair opportunity to all contractors.

I have read FAR Parts 15 and 16, have read Vern Edward's "Competitive Processes in Government Contracting: The FAR Part 15 Process Model and Process Inefficiency", seeked advise from legal counsel, and have reached out to other COs for their advise on how to streamline the evaluation process using FAR 16 versus FAR 15...and it's been difficult to get anything solid.

What we plan on doing is asking each offeror to essentially answer 5 questions pertaining to their technical and staffing approaches. The evaluators are going to review the responses, document the strengths and weaknesses of the responses, and determine which offeror is the most highly qualified from a technical proposal. There will be no proposal scoring, and we're not even developing an evaluation plan.

After technical evaluations, we will then factor in pricing and determine which offeror provides the best value. We're not ready to go LPTA on the requirement yet because of the nature of the work and the associated performance risks. Also, we are making sure not to use any of the FAR 15 terms in our RFP such as "competitive range", "discussions", etc. My question really has to do with discussions. If we want to enter into negotiations with only the most highly qualified vendor, is that allowable? Can we request a revised proposal from only that one vendor? What is the proper word to describe this communication...is it "exchanges"? Does anybody have experience with doing a FAR 16 source selection and have any advise on the kind of language we need to include in the instructions to offerors explaining the evaluation methodology? I want to make sure that we clearly communicate our strategy and stick to it because I know that will save us in the end if things go haywire and an offeror protests.

Thanks in advance to all who reply. This is my first post. :)

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I am a CO on a multi-award ID/IQ contract with a broad statement of work where work is more specifically defined in the SOWs of individual TOs. In the past year or so since the base ID/IQ contracts were awarded, the source selection procedures for competing TOs followed the FAR 15 model. Right now, we are soliciting for a follow-on TO and giving fair opportunity to all contractors.

I have read FAR Parts 15 and 16, have read Vern Edward's "Competitive Processes in Government Contracting: The FAR Part 15 Process Model and Process Inefficiency", seeked advise from legal counsel, and have reached out to other COs for their advise on how to streamline the evaluation process using FAR 16 versus FAR 15...and it's been difficult to get anything solid.

What we plan on doing is asking each offeror to essentially answer 5 questions pertaining to their technical and staffing approaches. The evaluators are going to review the responses, document the strengths and weaknesses of the responses, and determine which offeror is the most highly qualified from a technical proposal. There will be no proposal scoring, and we're not even developing an evaluation plan.

After technical evaluations, we will then factor in pricing and determine which offeror provides the best value. We're not ready to go LPTA on the requirement yet because of the nature of the work and the associated performance risks. Also, we are making sure not to use any of the FAR 15 terms in our RFP such as "competitive range", "discussions", etc. My question really has to do with discussions. If we want to enter into negotiations with only the most highly qualified vendor, is that allowable? Can we request a revised proposal from only that one vendor? What is the proper word to describe this communication...is it "exchanges"? Does anybody have experience with doing a FAR 16 source selection and have any advise on the kind of language we need to include in the instructions to offerors explaining the evaluation methodology? I want to make sure that we clearly communicate our strategy and stick to it because I know that will save us in the end if things go haywire and an offeror protests.

Thanks in advance to all who reply. This is my first post. :)

Your contract is supposed to describe the process you will use in affording each contractor a fair opportunity to receive an order. Is the process you have described the one in your contract? If not, why do you think you can use this procedure?

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Guest Vern Edwards
My question really has to do with discussions. If we want to enter into negotiations with only the most highly qualified vendor, is that allowable? Can we request a revised proposal from only that one vendor? What is the proper word to describe this communication...is it "exchanges"? Does anybody have experience with doing a FAR 16 source selection and have any advise on the kind of language we need to include in the instructions to offerors explaining the evaluation methodology? I want to make sure that we clearly communicate our strategy and stick to it because I know that will save us in the end if things go haywire and an offeror protests.

Will the order exceed $10 million? If not, then you don't have to worry about a protest. See FAR 16.505(a)(10)(i). I want an answer to that question before I spend any time on this.

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Will the order exceed $10 million? If not, then you don't have to worry about a protest. See FAR 16.505(a)(10)(i). I want an answer to that question before I spend any time on this.

However, if the contract specifies one process for providing fair opportunity, use of a different process may generate a contract claim.

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Guest Vern Edwards

Quite right. See Digital Technologies, Inc. v. U.S., 89 Fed.Cl. 711 (2009):

Although contractors under multiple award IDIQ contracts cannot protest the award of a task or delivery order, it does not follow that they cannot pursue a claim under the CDA when they think that the Government has breached its promise to give them a fair opportunity to be considered for an order. Protests and claims are very different things in terms of their objectives, the remedies available, and their effect on Government operations. Vernon J. Edwards, Postscript: Breach of Loss of the Fair Opportunity to Compete, 20 No. 12 Nash & Cibinic Report para. 59, at 2, 7 (Dec.2006); see also ABF Freight Sys., Inc. v. United States, 55 Fed.Cl. 392, 397 (2003) (dismissing three plaintiffs who had brought a bid protest, although all three had received contract awards: “The court does not see how a plaintiff asserting claims pertaining to a contract it has made with the government could be a ‘disappointed bidder’ for bid protest purposes.... Rather, such a plaintiff is a contractor asserting a claim ‘relating to a contract’ and is subject to the Contract Disputes Act jurisdiction of this court, as set forth in 41 U.S.C. § 609.”) (citing Ingersoll-Rand co. v. United States, 780 F.2d 74, 77-80 (D.C. Cir. 1985); Davis/HRGM Joint Venture v. United States, 50 Fed.Cl. 539, 545 (2001) and Cmty. Consulting Int'l, 02-2 BCA para. 31,940, 2002 WL 1788535.

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Will the order exceed $10 million? If not, then you don't have to worry about a protest. See FAR 16.505(a)(10)(i). I want an answer to that question before I spend any time on this.

Yes, the order will be more than $10 million.

Also, the ordering process is not described in great detail in the base ID/IQs so we always describe the evaluation/source selection process in great detail in the TOs...and plan to do so as well in this effort. The problem is that for the last 3 years, we state in our TOs that FAR 16 procedures apply and then go on to follow the FAR 15 procedures. We've been our worst enemy, and I'm trying to fix that. Trying to get the program office to come along has been a challenge because they seem to think that unless they get a 50 page proposal to read, they will end up with the lowest price offeror who doesn't know what they are doing.. We've finally gotten them to come around a bit, but I know the contractors will also have trouble with this change at first. I just want to make sure that I state very clearly what we intend on doing in the RFP.

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"What we plan on doing is asking each offeror to essentially answer 5 questions pertaining to their technical and staffing approaches. The evaluators are going to review the responses, document the strengths and weaknesses of the responses, and determine which offeror is the most highly qualified from a technical proposal. There will be no proposal scoring, and we're not even developing an evaluation plan"

GSA Region 3 Assisted Acquisition Services has done something similar for their Oral Presentation portion of the proposal. Can get you a POC over there who can hook you up with a CO who was involved. If interested, message me

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Guest Vern Edwards

Generally, in order to select a contractor the government needs information about two things: (1) each of the companies that want the job and (2) the offers that they make.

When selecting a contractor for a task order under a multiple-award task order contract, the government should already have information about the companies, which it should have gotten when it selected them for the contracts. It should know almost everything there is to know about them. The offer you want is: "We promise to perform the order as specified at the price agreed upon," which they should have agreed to do when they signed the underlying contract. The only additional information that it should need is about each company’s performance under task orders that it has already received, i.e., “past performance” information. The government will also need information with which to establish the order fixed price, estimated cost and fee, or ceiling price. The content of that information will depend on the pricing information already in the underlying contract. The government might need information about the labor categories and number of hours required to perform. Beside that information, what other information do you want and why do you want it?

You wrote:

What we plan on doing is asking each offeror to essentially answer 5 questions pertaining to their technical and staffing approaches.

I have no idea what that means or why you want that information. (What is an “approach”?) But you then wrote:

The evaluators are going to review the responses, document the strengths and weaknesses of the responses, and determine which offeror is the most highly qualified from a technical proposal.

A company’s qualifications are usually a matter of its attributes as a business. One would think that all of the companies that you gave contracts to were qualified to do any of the work encompassed by the statement of work. Is that not true? (See FAR 16.504( c)(1)(ii)(A).) I suppose that the five questions constitute an essay test, the answers to which you will use to decide which company is “most highly qualified,” and that the answers will not constitute binding promises that you will incorporate into the task order. And you are not going to score the answers, only determine which are good ones (strengths) and bad ones (weaknesses).

You say that you are not going to use any FAR Part 15 terms in your RFP, but you then use “RFP,” “offeror,” and “revised proposals” and ask about “discussions,” which are Part 15 terms if ever there were any. And just what do you plan to discuss — the answers to the essay questions? Are you going to tell them which answers were wrong (weaknesses) and then give them a chance to change their answers? What’s the point in that? Why don’t you just ask for the pricing information you need and base your selection on what you already know about the firms, without asking for any “offers”?

In any case, you asked:

My question really has to do with discussions. If we want to enter into negotiations with only the most highly qualified vendor, is that allowable? Can we request a revised proposal from only that one vendor? What is the proper word to describe this communication...is it "exchanges"?

Rather than answer those questions, I’ll suggest the following alternative, which complies with FAR 16.505(B)(1)(iv):

In view of the fact that the prospective order will exceed $5 million and assuming that you haven’t given contracts to more than 10 companies, send each of them an email notifying them of the competition, telling them that the evaluation factors are qualifications and price and that those are equally important. Send each of them a copy of the prospective task order. Then set up a conference call with each of them at which you and people from your program office ask for their views on the order and discuss how they would go about doing it. Record the calls. When the calls are concluded, ask for any information that you want in writing to be sent to you by email along with whatever information you need to price the order. Then pick one based on qualifications (as judged by what you already know about them and the conference calls) and price. Document the decision and the basis for it and provide any debriefing as requested.

Plan to take about two or three weeks for this, from first email to the contractors through decision, no more. You will need additional time for order preparation and processing.

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We are planning to use the GSA "OASIS" Contract for a Non-Personal Professional Services, total value approximately $8 Million, base and 2 options. We would like to use your recommended process to select a contractor. Can you expand a little on the process, so we can understand it better. What do you mean when you say to "ask them for their views on the order"? We are very willing to try to avoid FAR Part 15 procedures, and to use Part 16 properly. We just aren't sure what properly is! BTW - I love the WIWFCON forum, and peruse it often.

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Mary Sue,

First you must comply with the OASIS ordering guide: http://www.gsa.gov/portal/mediaId/201815/fileName/OASIS_SB_Ordering_Guide_v2_December_4_2014.action . Beyond that you can set it up almost anyway you want and Vern Offers a good short method in post #8. He can explain to you what he means by views. I don't want to steal his fun.

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Realizing the original posts were years ago - any info on what "views" means in the context above? I assumed it was used within it's lexical context. Now I'm curious about the potential stipulative definition.

I looked in the FAR, Black's Law Dictionary 2nd Edition, and DAU Glossary of Acronyms & Terms to no avail.

I assume it has an organic meaning; an ​opinion, ​belief, or ​idea - a way of ​thinking about something

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Guest Vern Edwards

"Views", as I used that word in post #8, more than three years ago, might be: insights, perspectives, concerns, beliefs, opinions, doubts, expectations, determinations, intentions, hopes, fears, sentiments, convictions, assessments...

To ask a contractor for its "views" about an order is to ask them for whatever you want to know about their thinking that will help you evaluate their prospects for success in the performance of that order.

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I liked the previous response more in that it highlighted the importance of imagination and creativity. The profession could benefit from a staff with various analytical degrees in history, art, English, political science, etc. The current preference for business management related coursework generally produces artistically challenged poor thinkers and writers.

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Guest Vern Edwards

I think the problem is societal and goes beyond requirements for and choices of college degrees.

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