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Is there any decent read that explains special standards of responsibility? I found an old Wifcon forum, but outside the four sentences in the FAR and one sentence at DAU Acquipedia I could not find anything that expands on the framework.

I have no experience using special standards of responsibility and was looking for something to read. My agency does budget money for literature and things of this nature if there’s something not out there publicly available.

There's a tunnel project I am working on and I want to explore an idea I have but don't feel I know enough about the topic at this time. 

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I am not familiar enough with the literature to make a recommendation.  However, those few sentences you found might be enough for you to start a meaningful conversation.  A special standard of responsibility is simply a must-have for an offeror to be selected, and you declare it up-front (in your solicitation) so everyone knows.  By making a matter a special standard of responsibility (and identifying it as such in your solicitation), you remove it from the comparative tradeoff evaluation -- doing so can be very useful sometimes.  Examples:  you might require that the offeror have a particular license or permit by the date of proposal submission, or you might require that the offeror have a certain experience.  These are pass-fail items.  The contracting officer has a lot of discretion here.

If you share your idea, you can get feedback here.

Here's something you can read:  https://sgp.fas.org/crs/misc/R40633.pdf

Edited by ji20874
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Thanks JJ for that link. That did answer a few questions that I had such as discretion in allowing contractors to rely on subs to meet special standards.

My situation is we’re constructing a tunnel on state owned land. There is a spec requiring the contractor to submit a blaster in charge certified in the state of XX and have 5 years blasting experience at least 30 days before they start blasting. What we don’t want to happen is we get to the point in the schedule where blasting should start and the contractor fails to find and furnish a blaster meeting these requirements.

So I wanted to solicit using sealed bidding with a special standard of responsibility to require the blaster in charge be certified and have 5 years’ experience now instead of waiting until 30 days before blasting starts.  

I’d have to wordsmith it but I was going to say something like:

To be determined responsible, the Offeror must meet the general standards of responsibility IAW with FAR 9.104-1 and the following special standards of responsibility.

1. Blaster in charge licensed in the state of the tunnel construction.

2. Blaster in charge has 5 years of blasting experience.

The apparent low bidder must submit documentation showing they can meet, or retain a subcontractor that can meet, the above special standards.

 

I can’t figure out how that’s different then an LPTA evaluation factor. Are there any kind of limits on what we can use for special responsibility standards so long as they are a go no/go?

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If you are doing sealed bidding, you cannot do LPTA and you cannot have a technical proposal. However, with sealed bidding, you may require information to support a responsibility determination -- this will not be a technical proposal, but will simply be information to be used in the responsibility determination.

I do not think your approach or your text will solve your problem. Anybody can submit a document saying that they can get a blaster in the future. Don't you want to require, as a matter of responsibility, that the company already have demonstrated experienced using blasters who are certified and who have 5 years of experience along with timely availability?

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In a construction contract, the contractor has to submit and continually update a schedule, all to the satisfaction of the contracting officer.  You can insist (maybe as an SCR) that blaster availability be an item on the schedule, and that it appear at least 90 days before blasting is scheduled to start.  You can remind the contractor of its obligation maybe two weeks before this 90-day deadline, and on day 89 you send a cure notice (with copy to the surety) if a blaster has not been made available.  The surety will make sure the problem is solved.

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I understand there is a difference between sealed bidding and LPTA. What I meant was how is the special responsibility standard, as drafted into a solicitation, different then an LPTA evaluation factor. Said another way if I were to solicit LPTA I would have what I’m calling a special standard of responsibility styled as an evaluation factor with no special responsibility standard.

I’ve seen things in negotiated procurements where the proposed personnel are required to be the actual people used during performance. Is that something that can be required? I don’t know but I’m leaning towards no.

Again this is all new to me and i'm going off 4 or 5 sentences of information that i was able to find. 

 

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Sure, they (sureties) will argue when you squeeze them for money -- but that is not what we're talking about.  We're talking about simply informing the surety that the contractor is failing to comply with the contract while there is still time for a recovery.  My experience is that sureties take the contractor's contract compliance seriously.

Speaking of those sentences you read, doesn't one of them require you to explicitly label special standards of responsibility as such in the solicitation?  If you explicitly label them that way, as the FAR requires, then you will have separated them from the evaluation factors.  So you need to decide -- do you want these matters handled as part of the responsibility determination, or as part of the proposal evaluation?  Take your pick, but remember that these are different.

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Best wishes!

If you talk to others in your office, be mindful that some (many?) of them will not understand the difference between evaluation and responsibility -- this may include superiors and reviewers and policy experts.  Maybe you can somehow help them understand correct and fundamental principles -- but if not, I will be happy if only you do.

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4 hours ago, dsmith101abn said:

Is there any decent read that explains special standards of responsibility? I found an old Wifcon forum, but outside the four sentences in the FAR and one sentence at DAU Acquipedia I could not find anything that expands on the framework.

I have no experience using special standards of responsibility and was looking for something to read. My agency does budget money for literature and things of this nature if there’s something not out there publicly available.

There's a tunnel project I am working on and I want to explore an idea I have but don't feel I know enough about the topic at this time. 

See Chapter 4 of Formation of Government Contracts, Fourth Edition, pp. 428-434.

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47 minutes ago, Don Mansfield said:

See Chapter 4 of Formation of Government Contracts, Fourth Edition, pp. 428-434.

Thanks Don. I found a 3rd edition laying around my office and found the section starting on page 422. I'll read that while i'm thinking about this, and thank you too JJ for the discussion. 

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6 hours ago, dsmith101abn said:

I’ve seen things in negotiated procurements where the proposed personnel are required to be the actual people used during performance. Is that something that can be required? I don’t know but I’m leaning towards no.

Yes, you can require the contractor to use the key personnel and key subtractors that were proposed and evaluated. However, we realized that that isn’t always possible.  So we stated that any proposed substitutions were subject to the KO’s approval.  The  qualifications of those originally proposed and evaluated key personnel and subcontractors would become the minimum qualifications for any proposed substitute. Intended to control instances of proposing the A team to win the contract, then subbing the B or C team. Some of the USACE has used that clause for about 30 years for construction and design-build contracts when key personnel and/or key subs were important discriminators. It could also be used where minimum qualifications of specific key personnel or a specialty sub are necessary.

We started teaching it in 1997 in the Design-Build PROSPECT course and it was adopted Corps-Wide in 2014 for design-build contracts.

Edit: It would also be appropriate where a prime uses the experience and/or past performance of a proposed sub teaming partner to qualify or provide satisfactory experience or performance record to win a contract. 

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@dsmith101abnYou should know that the GAO has long referred to special standards of responsibility as "definitive" standards or criteria of responsibility. See e.g., Shimmick Construction Co., Inc., B-420072.3, March 17, 2022. Footnote:

Quote

Definitive responsibility criteria are specific and objective standards established by an agency for use in a particular procurement to measure a bidder's ability to perform the contract. Federal Acquisition Regulation (FAR) 9.104–2. These special standards of responsibility limit the class of bidders to those meeting specified qualitative and quantitative qualifications necessary for adequate contract performance. M & M Welding & Fabricators, Inc., B–271750, July 24, 1996, 96–2 CPD ¶37 at 2.

See also Navarre Corp., B-419088.4, June 29, 2022:

Quote

 

Furthermore, the solicitation's instructions do not constitute a definitive responsibility criterion as the protester also suggests. Definitive responsibility criteria are specific and objective standards, established by an agency for a particular procurement, for use in measuring a bidder's ability to perform the contract. Reyna–Capital Joint Venture, B–408541, Nov. 1, 2013, 2013 CPD ¶253 at 2. These special standards limit the class of bidders to those meeting specified qualitative and quantitative qualifications necessary for adequate contract performance. Id.; NEIE Med. Waste Servs., LLC, B–412793.2, Aug. 5, 2016, 2016 CPD ¶213 at 4. Thus, definitive responsibility criteria involve a vendor's eligibility for award and not its performance obligations under the contract. ARI Phoenix, Inc., B–416878, Oct. 24, 2018, 2018 CPD ¶363 at 2–3.

Here, the language regarding vendors' financially responsibility is included in the RFQ's instructions to vendors-not in the evaluation criteria-and does not set out a specific, objective standard for measuring a vendor's ability to perform. Moreover, the RFQ does not otherwise require vendors to establish their qualifications to perform these requirements prior to award. Thus, the solicitation language in question is not a definitive responsibility criterion. As discussed above, the provision expresses, in general terms, a consideration which is encompassed by the contracting officer's subjective responsibility determination. Our Bid Protest Regulations preclude us from reviewing an affirmative responsibility determination absent a showing that the contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or regulation. See Oceaneering Int'l, Inc., B–278126, B–278126.2, Dec. 31, 1997, 98–1 CPD ¶133 at 11–12. Since these circumstances are not present here, we will not consider Navarre's claim. 4 C.F.R. § 21.5(c). As such, this allegation is dismissed.

 

The earliest such mention was in Harris System Termite Co., B-185659, Feb. 19, 1976.

See Feldman, 2 Government Contract Awards: Negotiation and Sealed Bidding § 18:10, Definitive responsibility criteria.

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15 hours ago, dsmith101abn said:

I understand there is a difference between sealed bidding and LPTA. What I meant was how is the special responsibility standard, as drafted into a solicitation, different then an LPTA evaluation factor.

The difference has been explained by Feldman, cited in my earlier post:

Quote

The above-quoted term [definitive responsibility criteria] refers to specific, objective, and mandatory Request for Proposals (RFP) standards established by the agency that must be documented in the offer and that measure an offeror's ability to perform the contract, as stated in certain qualitative or quantitative requirements. These criteria also are distinct from the technical evaluation criteria and the offeror's performance obligations in the proposed contract. Put another way, a definitive responsibility criterion is a precondition for award established in the RFP as part of the selection process, but that does not affect the relative rating of offerors, and that places the competing firms on notice that the class of prospective contractors is limited to those whose proposals can document the ability to meet the applicable standards. When the agency rejects an offer because the proposer has failed to meet a definitive responsibility criterion, the agency is rejecting the firm on responsibility grounds and not because the offer is unacceptable.

Footnotes omitted.

In a 1992 article entitled, "Definitive Standards of Responsibility: How To Shoot Oneself In the Foot," Professors Cibinic and Nash wrote:

Quote

We are always amazed at the great effort procuring agencies expend in making things difficult for themselves. Use of so-called “definitive standards” of contractor responsibility is one example of this “lemming instinct.” When definitive standards are used, Contracting Officers (COs) give up the wide discretion that they are accorded in making responsibility determinations under the general standards of responsibility or of comparatively evaluating competitive proposals...

*   *   *

Our advice to COs is to shun definitive standards of contractor responsibility. They only serve to limit your discretion. Any goals you can accomplish through use of definitive standards you can accomplish better with general standards. You can determine offerors to be nonresponsible if you have legitimate doubts as to their ability to meet contract requirements.

 

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7 hours ago, dsmith101abn said:

Could i require this if i didn't evaluate a proposal IAW 15.3 but a bid IAW 14 using a special standard of responsibility? 

Yes...per my earlier post....if you read the decision a special standard of responsibility was required - a certification which the BIDDER (it was a sealed bid) did not provide at bid and could not provide in a reasonable time  prior to award was found non-responsible and the GAO agreed in the determination.  there is this footnote in the decision -

While not identified in the IFB as a special standard of responsibility, the contractor was required by the IFB to begin performance on the date of award with an approved laboratory. All parties have treated this requirement as a condition that had to be satisfied to be eligible for award; we adopt this view.

 

So my thoughts -

Place in the IFB a "Special standard of responsibility"  Award will only be made to a bidder that has a certified (by what entity) blaster with 5 years of experience.  Evidence of this special standard must be provided with bid.   Failure to provide evidence of the blaster certification/experience at bid opening will be a basis for a non-responsibility determination.   

In your Special Contract Requirements put in something to the effect that -Failure to retain the certified blaster offered in the contractors bid and that was the basis for award shall be retained by the contractor through completion of all blasting required by the contract.  Failure to meet this special contract requirement shall be basis for termination for default of the contract.

Document in your solicitation/contract file WHY the special responsibility standard is necessary - borrowing from the FAR use language that - experience has demonstrated that unusual expertise is needed for adequate and safe contract performance. 

And for a read on responsibility and special responsibility that also provides some valuable footnotes with regard to special standards take a look here -

https://sgp.fas.org/crs/misc/R40633.pdf

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7 hours ago, dsmith101abn said:

Could i require this if i didn't evaluate a proposal IAW 15.3 but a bid IAW 14 using a special standard of responsibility? 

 

17 hours ago, dsmith101abn said:

So I wanted to solicit using sealed bidding with a special standard of responsibility to require the blaster in charge be certified and have 5 years’ experience now instead of waiting until 30 days before blasting starts.  

I’d have to wordsmith it but I was going to say something like:

To be determined responsible, the Offeror must meet the general standards of responsibility IAW with FAR 9.104-1 and the following special standards of responsibility.

1. Blaster in charge licensed in the state of the tunnel construction.

2. Blaster in charge has 5 years of blasting experience.

The apparent low bidder must submit documentation showing they can meet, or retain a subcontractor that can meet, the above special standards.

This documentation doesn’t require an apparent low bidder to commit to any specific blaster in charge or a specific subcontractor or list of subcontractors that can meet the above special standards. It’s actually pretty wishy-washy and indefinite. 

 

 

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As for furnishing documentation with a one step sealed bid for a public bid opening, I’m not certain that this is proper for determination of responsibility, where the basis of award is based upon price and other price related factors. And you are asking for the information from all bidders, not just the apparent successful bidder.

I suppose that one could require specific information concerning a specific blaster in charge or multiple alternates or for specific subs or alternates in step 1 of a two step sealed bid process. I’m not sure of the effectiveness of this if you would limit the prime to one specific sub prior to development of its bid price in step 2. 

However, you could also do this in one step LPTA, RFP.  Two primary distinctions between IFB and RFP are the public bid opening for IFB (or step 2 of 2 Step IFB) and that in an an RFP, the offeror can withdraw its proposal anytime before notice of award. 

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13 minutes ago, joel hoffman said:

As for furnishing documentation with a one step sealed bid for a public bid opening, I’m not certain that this is proper for determination of responsibility, where the basis of award is based upon price and other price related factors.

Please read the GAO decision I posted previously.  Also please read the document I referenced in my most recent post especially the footnotes related to special responsibility.   The one reference I provided and those in the footnotes are with regard to sealed bids.  A contractor must be responsible to be awarded at the lowest price.

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1 hour ago, joel hoffman said:

As for furnishing documentation with a one step sealed bid for a public bid opening, I’m not certain that this is proper for determination of responsibility, where the basis of award is based upon price and other price related factors.

There is no prohibition against requesting responsibility information to be submitted with the submission of sealed bids.

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I’ve read all of the posts in this thread and most of the cited references. While I’m not going to try and shoot myself in the foot or make anything more difficult for myself, I’m going to try using a definitive or special standard or responsibility and include some requirements in the SCRs along with describing how substitutions might work.  

Right or wrong beneficial or not I’m doing it.

While my current office deals with a fairly large dollar amount of construction work, our contracting office only has 6 other COs, most with under 5 years’ experience, so I appreciate everyone’s thoughts, references and inputs.   

If anyone cares to know I can post my outcome in the What Happened thread. Not a lot of posts in there so don’t know if that interests anyone.

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