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Thoughts on new DoD Source Selection Procedures


jason_a

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What are people's thoughts on the new DoD procedures?  It is not too different from the previous version.  I did notice they added Significant Strength.

Significant Strength is an aspect of an Offeror’s proposal with appreciable merit or will exceed specified performance or capability requirements to the considerable advantage of the Government during contract performance.

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"DoD Fosters Innovation by Mandating Use of Standard Source Selection Procedures"

The procedures seem to limit the discussion of the highest technically rated offer (HTRO) with fair and reasonable price to multiple-award IDIQ contracts. Why? Nothing in the Sevatec decision limited the GAO's opinion to multiple-award IDIQ contracts. 

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Very disappointed in the HTRO section. I suppose it only says 'may be used' for award of IDIQ's, but it doesn't say 'may not' for other competitions. It also doesn't go into defining the process (shockingly - sarcasm) - very high level. 

At least the guide doesn't apply to FAR Part 16 competitions and HTRO can still be used for orders under IDIQ's. 

However, I can't help but feel somewhat defeated (not surprisingly) by the new procedures.  Just another case of innovation taking a nose dive due to policy heads in the pentagon not having the intellect, drive, and wherewithal to cause true acquisition change. 

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45 minutes ago, Witty_Username said:

But for some reason it still encourages agencies to "use these procedures for orders under multiple-award contracts" which certainly doesn't seem innovative or streamlined...

That sounds more like the opposite.  Ordering under multiple award task orders started out simple.  Then abuses and ignorance created more controls and procedures.  Allowing protests over $10 million followed.  Then there’s fair opportunity procedures and pools of 50+ contractors that must be given opportunities to compete. I won’t forget Navy Seaport contract pool with 1,870 contractors.  How is this streamlining?

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On 8/23/2022 at 12:48 PM, jason_a said:

Significant Strength is an aspect of an Offeror’s proposal with appreciable merit or will exceed specified performance or capability requirements to the considerable advantage of the Government during contract performance.

The modal verb "will," representing the future tense, is defined by at least one source as "expressing inevitable [adj., certain to happen; unavoidable] events."

The contents of proposals can portend, but never guarantee, success.  Aside from the fact that the above sentence is atrociously written, how can anything expressed in a proposal ensure a certain level of performance?  Proposals demonstrate.  That is all they do.  They guarantee nothing and may not be accurate.  This is yet another worrisome indication that those currently at the higher echelons of contracting and policy making continue to lack command of the fundamentals.

In 2016, first basemen Chris Davis signed a seven-year, $161M contract with the Baltimore Orioles.  "Crush" Davis was offered this fabulous sum of money based on his exceptional past performance, having ranked 2nd in the American League the previous season in RBIs with 117 and leading MLB in home runs (47).  Two years before that, he led the majors in home runs (53), RBIs (153) and total bases (370).  His performance after the signing of his contract in 2016 never again came remotely close to his achievements in the previous three years.  In 2020, he batted a league low .115 with one RBI and no home runs.  From 2016 through his early retirement in 2021, he recorded an unimpressive .196 overall batting average.  Baltimore owed Davis $17M for the 2022 season, not to mention, significant deferred payments through 2037.  Ergo, past performance or demonstrated qualifications can never guarantee that the awardee will exceed anything "to the considerable advantage of [the contracting party] during contract performance."

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1 hour ago, Guardian said:

The contents of proposals can portend, but never guarantee, success. 

You might want to think about that again.

Begin with this: What does "guarantee" mean? Is a guarantee anything other than a promise? If a guarantee is a promise, and if by proposal you mean offer, then why can proposals never guarantee success?

Look up guarantee in Black's Law Dictionary, 11th ed., and then in Garner's Dictionary of Legal Usage, 3d ed.

And what do you mean by "Proposals demonstrate. That is all they do."?

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On 8/23/2022 at 8:18 PM, Don Mansfield said:

"DoD Fosters Innovation by Mandating Use of Standard Source Selection Procedures"

The procedures seem to limit the discussion of the highest technically rated offer (HTRO) with fair and reasonable price to multiple-award IDIQ contracts. Why? Nothing in the Sevatec decision limited the GAO's opinion to multiple-award IDIQ contracts. 

I wrote a similar note in the margins of my copy as I was going through it - page 3 is also inconsistent with their incorporation of HTRO when it limits the best value continuum to LPTA and states "the tradeoff source selection process spans the entire remainder of the continuum."

Paragraph 1.2.2 on page 2 is also puzzling - why go through the trouble of establishing an IDIQ only to be encouraged to subject them to these cumbersome source selection procedures for orders greater than $10M?

Paragraph 2.3.2.5 doesn't do our DoD acquisition community any favors by biasing source selection teams to choose factors like "technical approach...management approach, [and] personnel qualifications." Vern has written extensively on the problems with these non-promissory "essay writing" factors here: 

Overall, my main issue is that these DoD mandatory source selection procedures have been around for the past decade, yet they have not improved DoD's source selections and acquisition outcomes. So why publish a mere update rather than a substantive rewrite (or elimination) of procedures that do not appear to have markedly improved acquisition outcomes? [rhetorical question]

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Vern, you literally had me digging through boxes in the closet to find my books.  Because of that I found my Management Concepts "Principles of Federal Appropriations Law" binder, which I was missing (completely unrelated, but so glad to have found it).  I also found my woodworker's model of Camden Yards encased in bubble wrap.  How apropos. 

6 hours ago, Vern Edwards said:

You might want to think about that again.

Begin with this: What does "guarantee" mean?

Per Black's, "guarantee" is only defined as a noun, specifically, "[o]ne to whom a guaranty is made."  So then, I looked below that to the term "guaranty," which, as a verb (as I applied the word), is defined as follows, "[t]o undertake collaterally to answer for the payment of another's debt or the performance of another's duty, liability or obligation.  As a noun, it is defined as "[a] collateral agreement for performance of another's undertaking."  

The Oxford Dictionary defines the verb form of "guarantee" as "[providing] a formal assurance or promise, especially that certain conditions shall be fulfilled related to a product, service, or transaction."  By this definition, a "proposal" (if we interpret the term to mean an "offer" subsequently met by acceptance and legal consideration) can be said to guarantee a specific level of performance or outcome.  Therefore, I think I understand the point of your question and its lesson.

6 hours ago, Vern Edwards said:

If a guarantee is a promise, and if by proposal you mean offer, then why can proposals never guarantee success?

Because without acceptance and legal consideration, we would not have a binding contract.  But if we are to consider the guaranty or guarantee as a promise in conjunction with offer and acceptance, then I would say my original assertion is incorrect, that is, the promise is in fact a guarantee by the offeror of its future success, to which the Government may rightly hold them.

6 hours ago, Vern Edwards said:

And what do you mean by "Proposals demonstrate. That is all they do."?

If I may, please allow me to frame it as follows.  I recently conducted a debriefing.  The unsuccessful offeror stated that they should have received an acceptable rating for the factor of key personnel because their proposed KP met all of the RFP's requirements for that factor.  I responded that while that may be true, they did not demonstrate as much in their submitted proposal.  We went through the KP resume in comparison to the Government's minimum qualification requirements.  I asked the contractor representative, "where herein do you demonstrate to the Government that your proposed member of key personnel meets our stated requirements?".  They confessed that although the individual they proposed had the necessarily qualifications, they now understood their mistake was in their failure to demonstrate it to the agency.  With that, I made the point that there is a clear difference between one's ability to meet the Government's stated requirements and demonstrating as much in a proposal or offer.

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