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Selection of Factors Question


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4 hours ago, Vern Edwards said:

Good for your organization!

What does that have to do with the topic at hand?

The topic at hand is whether or not to evaluate past performance as a discriminator.

With negotiated acquisition you evaluate more than price. You can decide to pay more than the lowest priced, technically acceptable proposal for higher qualifications and/or, experience, and/or   past performance record, and/or, other qualities , etc.

With IFB, you can’t discriminate between a marginally qualified firm and a higher qualified firm.  Edit: I made that point in my very first post as to why PP can be an effective discriminator to consider.

If you decide not to evaluate past performance or bind a contractor to provide proposed key personnel or equivalent substitutes or a technical approach, etc., why bother with an RFP?  If the contractor has to offer first rights to current service contract  employees, where is the discriminator there?

Construction contracting, in particular, is a risky business. Lots of things can go wrong. The price loser (lowest price to perform the job) is the contract winner.

Since we generally want good or better performance, we evaluate past performance as a discriminator in competitive acquisitions to reduce risk of poor performance, timeliness, working relationships, etc. 

 

Edited by joel hoffman
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1 hour ago, ji20874 said:

Joel,

The original poster isn't talking about using a IFB and isn't talking about construction.  Please re-read the original posting.

Got it thanks. My first post followed and was in general agreement with formerfed’s post. I was citing some considerations why one might want to evaluate PP (for all sorts of contracts, not just construction). I made the distinction between an IFB and RFP ability to use PP as a discriminator to try to obtain better performance. My last post wasn’t confined to construction, either.

I think that quality past performance record can be important for reasons cited above. I never had a protest concerning PP evaluation. The FAR Council likely thought PP is an important consideration, by stressing PP evaluations.

Vern apparently doesn’t, from an earlier post thinking that PP evaluation “should be the “exception”.

Vern said “In fact, I've begun to think that evaluation of past performance should be the exception, not the rule.” That was a general statement- not confined to the specific topic of the original post. 

So we can have differences of opinion. 

Edited by joel hoffman
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Alright, we've come to page 2 on this topic, so let me at least post the examples I originally sought in the OP.  If nothing else this will be a deliverable, curated from page 1 of this topic:

Three example reasons to not evaluate past performance in a best value source selection.  As with all examples, do not try these at home without first thinking!

1. Inuksuk A-S, Comp.Gen.May 26, 2022, B-420527.22022 CPD P 132.  A denied protest of an RFP for USAF base contracting and maintenance services that relied on multiple reasons.

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Here, the contracting officer documented the reasons that past performance was not an appropriate evaluation factor for this solicitation, concluding:

Past performance will not be evaluated as part of this acquisition in accordance with (IAW) FAR 15.304(c)(3)(iii). This acquisition is restricted to Danish and/or Greenlandic companies IAW an agreement between the U.S. and The Kingdom of Denmark. The number of Danish/Greenlandic companies that meet these eligibility criteria and that have actual past performance experience for a base operations and maintenance contract is limited to a single company. The requirements of the Thule Base Maintenance Contract are very mature and explicit when it comes to critical utilities. The functional area experts have indicated that evaluation of the staffing plan from offerors will be sufficient to identify if the offeror can adequately execute the requirements of the contract. The infrastructure at Thule is aging and innovation to operate and maintain, given the explicit requirements is minimal. All offerors shall identify in Factor 2, Management, how they plan on retaining the current workforce. Historically, the retention ratio from one contract to the follow-on contract has been in the high 90th percentile. The latest retention ratio was ~98% in 2017 with some individuals working at Thule for decades. The retention of the incumbent workforce minimizes risk of not conducting past performance. Additionally, FAR 9.104 requires the contracting officer to determine responsibility by looking at several specific aspects of a contractor’s operation.

AR Tab 21, Source Selection Plan at 5. The contracting officer also noted that past performance was not used as an evaluation factor in the previous acquisition, and the incumbent is successfully performing. Id.

2. Inmarsat Government, Inc., Comp.Gen.May 21, 2021, B-419583 B-419583.2.  A denied protest of an RFP for DISA satellite services that relied on market research results:

Quote

The protester has provided no basis for us to question the agency’s conclusion.

3. Pathfinder Consultants, LLC, Comp.Gen.March 15, 2021, B-419509, 2021 CPD P 124.  A denied protest of a VA RFQ for commercial communication support services that relied on an argument the PP factor was not a discriminator:

Quote

The protester has provided no basis for us to question the agency’s conclusion.

I think it is important to understand that one of the first example's reasons for excluding a PP factor was that, since only one of the companies allowed to bid had any past performance, the factor's inclusion would have made the playing field unequal for industry.  The second and third ones' reasons were not challenged by their respective protestors beyond what, in the GAO's judgment, amounted to essentially a disagreement with the decisions to exclude (so that is what I quoted from them).

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1 hour ago, joel hoffman said:

I think that quality past performance record can be important for reasons cited above. I never had a protest concerning PP evaluation. The FAR Council likely thought PP is an important consideration, by stressing PP evaluations.

Vern apparently doesn’t, from an earlier post thinking that PP evaluation “should be the “exception”.

Vern said “In fact, I've begun to think that evaluation of past performance should be the exception, not the rule.” That was a general statement- not confined to the specific topic of the original post. 

Some history.

First, DOD had a contractor performance evaluation program in the 1960s and into the 1970s, but eventually dropped it on the ground that "[t]he benefits derived from the [Contractor Performance Record] were not sufficient to warrant the cost involved."

Second, in the 1980s, after the enactment of CICA, I began promoting the use of past performance as a "best value" evaluation factor in negotiated procurement. I wrote a sample past performance evaluation factor description for the Defense Logistics Agency. DLA used in a 1991 RFP for procurement hazardous waste removal, transportation, and disposal. The RFP stated only two evaluation factors, price and past performance, with price being the most important. They received six proposals and awarded the contract to the offeror with a higher price but better past performance. There was a protest to the GAO. See CORVAC, Inc., GAO B-244766, Nov. 13, 1991.

The GAO quoted part of the RFP language that I wrote and denied the protest. Here is the RFP language that I wrote:

Quote

 

“(1) The Government will evaluate the quality of the offeror's past performance. The assessment of the offeror's past performance will be used as a means of evaluating the relative capability of the offeror and the other competitors. Thus, an offeror with an exceptional record of past performance may receive a more favorable evaluation than another whose record is acceptable, even though both may have acceptable technical and management proposals...

“(3) Evaluation of past performance will be a subjective assessment based on a consideration of all relevant facts and circumstances. It will not be based on absolute standards of acceptable performance. The Government is seeking to determine whether the offeror has consistently demonstrated a commitment to customer satisfaction and timely delivery of services at fair and reasonable prices. This is a matter of judgment. Offeror's will be given an opportunity to address especially unfavorable reports of past performance, and the offeror's response—or lack thereof—will be taken into consideration....

“(4) Past performance will not be scored, but the Government's conclusions about overall quality of the offeror's past performance will be highly influential in determining the relative merits of the offeror's proposal and in selecting the offeror whose proposal is considered most advantageous to the Government.

“(5) By past performance, the Government means the offeror's record of conforming to specifications and to standards of good workmanship; the offeror's adherence to contract schedules, including the administrative aspects of performance; the offeror's reputation for reasonable and cooperative behavior and commitment to customer satisfaction; and generally, the offeror's business-like concern for the interest of the customer.”

 

Third, in December 1991, OFPP published a proposed policy letter requiring the evaluation of past performance for the purposes of contractor selection. See 56 FR 63988, Dec. 6, 1991. I don't think they had seen the CORVAC decision when they published the letter. Then, on January 11, 1993, they published the final version, OFPP Policy Letter 92-5. See 58 FR 3573. In that letter they defined "past performance information" and said:

Quote

The definition of PPI was taken, in part, from Defense Logistic Agency (DLA) Solicitation No. DLA 200-91-R-0068, March 29, 1991. DLA's actions under this solicitation were protested to the General Accounting Office (GAO). The Comptroller General upheld DLA's actions in CORVAC, Inc., B-244766, 91-2, CPD, 454. This decision and the DLA solicitation provide useful background information on the use of past performance.

Some of you may recognize the language from the CORVAC RFP in FAR 42.1501.

In 1994 I wrote a 54-page monograph for The George Washington University Law School entitled, How to Evaluate Past Performance: A Best-Value Approach, Monograph Series, 2d.

It's not that I think past performance is not important. It's that I think a bureaucratic mindset has needlessly made it overused and needlessly complicated and time-consuming. Which is what often happens to a useful idea when blockheads get hold of it. Ideas are only as good as their users.

I think FAR 15.304(c)(3)(iii) makes good sense, which COs ought to use more often.

Don't lecture me about evaluating past performance, Joel.

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2 hours ago, joel hoffman said:

So we can have differences of opinion

Vern, who is lecturing you? Not me. I quoted your statement: “In fact, I've begun to think that evaluation of past performance should be the exception, not the rule.” That was a general statement- not confined to the specific topic of the original post.

In my opinion, a quality past performance record “can be important for the reasons I explained above”.  

I never had a protest concerning PP evaluation in any of the 90 or so source selections that I was directly involved on.

The Air Force extensively uses a Past Performance/Price format for their construction and perhaps other types of contract source selections. I don’t necessarily agree with their method, which doesn’t distinguish extent of experience from quality of past performance but it seems to work for them. 

I said that we can have differences of opinion. That’s not lecturing you.

 

 

 

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@joel hoffman

What do you understand the difference of opinion to be?

My opinion is that past performance can be important, but is not always important, and that you should not evaluate something just because you can, but because you have a reason specific to the acquisition at hand. In an earlier post I suggested some reasons why it might not be appropriate in a particular case.

I will go further and say that I agree with Carl that in many if not most acquisitions (think about the number and variety of acquisitions) evaluation of past performance serves no real purpose. I have long taught students that when it comes to past performance most companies are in what I call "the muddled middle." Evaluating past performance when there is little likelihood that it will be a significant discriminator adds needless time and cost to acquisition.

So is it your opinion that agencies should evaluate past performance in every acquisition?

Is that the difference of opinion? If not, what is the difference?

 

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2 hours ago, Vern Edwards said:

So is it your opinion that agencies should evaluate past performance in every acquisition?

No. 

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2 hours ago, Vern Edwards said:

What do you understand the difference of opinion to be?

 

5 hours ago, joel hoffman said:

Vern said “In fact, I've begun to think that evaluation of past performance should be the exception, not the rule.” That was a general statement- not confined to the specific topic of the original post. 

I understand that to be a difference in opinion. I don’t agree with that quoted thought, opinion, or whatever you want to call it. That’s all. 

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2 hours ago, Vern Edwards said:

My opinion is that past performance can be important, but is not always important, and that you should not evaluate something just because you can, but because you have a reason specific to the acquisition at hand.

I don’t necessarily disagree with this. 

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2 hours ago, joel hoffman said:

I understand that to be a difference in opinion. I don’t agree with that quoted thought, opinion, or whatever you want to call it. That’s all. 

It was my description of my state of thought. It described what I have begun to think, but not finally concluded. It's not something you should agree with or disagree with, unless you think I'm mistaken about my own state of mind.

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@Vern Edwards

I would like to know if you will qualify your suggestion that inclusion of a past performance factor be the exception rather than the rule.  Do you still agree it should remain the rule in all set-aside contracts?  You’ve already alluded to as much in your post on page 1 of this topic (“In the late 1980s I aggressively promoted the evaluation of past performance in source selection, primarily as a way around the SBA's certificate of competency program”), and you’ve written of this before.  I now see the genesis of that writing in CORVAC, Inc., GAO B-244766, Nov. 13, 1991, and can contrast it to Clegg Indus., Inc., B-242204.3, Aug. 14, 1991.  Clegg used an “experience” factor, and that term inadvertently tripped the Government into FAR Part 9 territory, thus necessitating a CoC.  CORVAC distinguished past performance from experience and as a result GAO ruled “the matter is one of technical acceptability, not responsibility.”

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9 hours ago, Vern Edwards said:

Well, now you can join the conversation about when it would not be appropriate to evaluate past performance in source selection.

Any ideas?

I don’t have any specific current examples.

In theory, say there is a known universe of eligible proposers after good market research, extensive pre-solicitation and one-on-one meetings;  the government is familiar with and satisfied with the various firms’/teams’ recent and current performance; and past performance evaluation factor wouldn’t be a significant discriminator between firms.

The last two Systems contracts at Pueblo, Colorado and Blue Grass, Kentucky for the Chemical Weapons Demilitarization Program would probably have been good candidates, based upon the above criteria. Those two Systems contracts for design, construct, systemization, pilot operations, full scale operations and decommissioning were awarded in the early 2000’s and are still on-going.

There were only two or three teams, composed of the only firms in the business, that were going to compete for the two Systems contracts.

The Program Office was familiar with all of them. We had numerous one-on-one pre-solicitation meetings to become familiar with the interested teams, to help frame the performance requirements and scope of work, etc. All of the firms were involved in the earlier on-going or completed phases and plants.

I don’t remember if we included a PP factor. A Contracting Directorate at Rock Island Arsenal (they change names every few years, so I don’t remember the organization’s name) was the PCO Office for the Chem Demil Program. 

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