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7 hours ago, Vern Edwards said:

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

Thanks.

Dsmith wants the blaster in charge to have the required experience and certification “now” rather than a month prior to the blasting operations. Is “now” going to be defined as at time of providing the documentation at bid opening or defined as when otherwise providing the documentation prior to award?

I believe that dsmith’s  description of documentation showing that they CAN meet,  or CAN retain a subcontractor that can meet, the above special standards should also demonstrate that they both will (?) do(?) possess the ability (and required qualifications) to perform the work (themselves or by subcontract) and the determination by a commitment or explicit arrangement that (is in existence ?), (will be in existence at the time of award ?) to use the resources to perform the required work.

Have to carefully think about how to word the required documentation.  

 

 

 

 

Edited by joel hoffman
Added (and required qualifications)
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5 hours ago, dsmith101abn said:

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

Exactly the way Contracting Officers should think and act.  You’ve researched, analyzed, and now taking appropriate actions based on your judgement as the best choice.

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2 hours ago, formerfed said:

Exactly the way Contracting Officers should think and act.  You’ve researched, analyzed, and now taking appropriate actions based on your judgement as the best choice.

I don't know about that. The CO today is a player, not a dictator. The CO's authority comes from knowledge and expertise, not bluster and insistence.

A day ago dsmith101abn was clueless about special ("definitive") responsibility criteria. Hardly anyone who posted in response to his query knew much about the topic or its literature. Yet a couple of days later he is ready to just do it, "Right or wrong beneficial or not," come hell or high water, despite a warning from the two most distinguished government contracting experts who ever lived. Steven Feldman's discussion of the topic is 16 pages long. Definitive responsibility criteria have been mentioned in 1,642 GAO decisions.

dsmith101abn might be jumping into Dien Bien Phu, otherwise known as "Hell in a very small place."

But let's call it innovation.

I wish him the best.

 

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10 hours ago, Vern Edwards said:

 

dsmith101abn might be jumping into Dien Bien Phu, otherwise known as "Hell in a very small place."

But let's call it innovation.

I wish him the best.

 

I agree.

dsmith has a tunneling project of some sort involving rock excavation and intends to use the IFB process with public bid opening.  I’m guessing that IFB’s are the norm for d smith’s procurement methods. 

dsmith wants the contractor to show that it has a blaster in charge with the required experience and certification “now” rather than a month prior to the blasting operations. We know next to nothing about the scope of the project or when, in the schedule after award, the blasting operation would occur.

dsmith wants to use a special responsibility factor for award. This would require the contractor show (identify?) that it has an experienced and certified blaster or has a commitment or explicit arrangements for a named, experienced  blasting subcontractor with a qualified blaster in charge prior to award. In addition,  d smith would like to control substitution of a named blaster in charge or qualified subcontractor after award.

Depending upon what “now” means, dsmith might require that all bidders submit the information with their bids or might require the apparent low bidder to submit it during the responsibility determination process.

dsmith is going to have to require more than  documentation showing that the bidder CAN meet,  or CAN retain a subcontractor that can meet, the above special standards at some point prior to the award. What documentation to require will require careful thought.

For a “now” determination, I believe that the apparent successful bidder must show that it has a qualified blaster in charge to perform the work themselves or by subcontract with such a blaster in charge. It must also show the determination, by a commitment or explicit arrangement to use the quailed resources.
(Source: Formation of Government Contracts , Chapter 4 Contractor Qualifications, I. Responsibility, A. Standards of Responsibility, 1. Performance-Related Standards of Responsibility, in particular, b. Special Standards.

In my opinion it would be more practical for the apparent low bidder to be able to provide documentation after the bid opening, as part of the responsibility determination process.

At any rate, we don’t know the full scope or nature of the work, when the blaster in charge would be involved or when blasting operations will occur in the overall project schedule or the overall acquisition strategy. I expect that the contract would require submission of a blasting plan.

And since there are numerous GAO decisions, Steve Feldman’s 16 page discussion on the subject and other sources, dsmith should not rely on this Forum or me for specific a specific solution.

I worked in conjunction with Steve Feldman over the course of 10 years in Huntsville, AL. from 1997-2007. Steve was (is?) a very capable and dedicated attorney in the USACE Huntsville Engineering and Support Center, Office of Counsel. I don’t have access to his discussion on the subject but I would have consulted with him or others in the Office of Counsel for such matters when I worked there.

To the best of my knowledge, the USACE Engineering and Support Center does not use the IFB procurement method. I suspect that dsmith’s organization regularly uses that method for construction contracting.

 

 

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There is no need for a special ("definitive") standard of responsibility.

If the solicitation/contract specify that the blaster must have certain credentials, then the apparent low bidder's responsibility can be established under the general standards of responsibility. See FAR 9.104-1(e), 9.104-3(a), and 9.104-4. Blasting in tunnel construction is not an "unusual expertise." dsmith101Abn would have known that if he had read FAR carefully and done enough research.

Besides, the contractor might use the boring method of tunnel construction instead of blasting.

https://www.fhwa.dot.gov/bridge/tunnel/pubs/nhi09010/tunnel_manual.pdf

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13 hours ago, Vern Edwards said:

I don't know about that. The CO today is a player, not a dictator. The CO's authority comes from knowledge and expertise, not bluster and insistence

True.  A probably overworked saying today is “contracting is a team sport.”

But I get so annoyed at COs who won’t make decisions or do things without checking first with their management, policy/review personnel, lawyer, etc. on even the most basic issues.  This is one reason why PALT or whatever one calls it is so long at so many places. The 1102 field today has become risk adverse and afraid to do things on their own.

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So as the discussion goes there are three alternatives, all three of which could be used.  So in truth it depends and a CO makes the choice based on the specifics of their agency, their particular contract need, etc.   

To this point some agencies have manuals, policies and more that dictate certain stuff but unless that stuff is incorporated into a contract specifically then there might be an issue about what or what does not really apply to a contract.   In the world of "it depends" if an agency were like FHWA one would have the ability to address the matter of a certified blaster via its required and incorporated specifications (see Section 205 in reference below) and/or address as responsibility and require satisfaction post contract award but if an agency has no such standard specification then maybe the shoe of special responsibility requirement does fit and needing it to fit "now" is a sound approach.

https://highways.dot.gov/sites/fhwa.dot.gov/files/docs/federal-lands/specs/12851/fp14.pdf   

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The issue is not whether to require certification when making a responsibility determination. The issue is whether to establish a special ("definitive") standard of responsibility. The point is that a special standard is not necessary, and is not ideal, because it gives rise to possible (and avoidable) legal complications. You can require certification under the general standards of responsibility.

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@dsmith101abn, you should find the state law that led to this spec you mention below.  Finding it would be at least academic for you, but, if this is a set-aside contract, it will really pay off practically.

On 8/23/2022 at 2:32 PM, dsmith101abn said:

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.

Using the law as a basis for a determination under general standards of responsibility, your source selection is protected from the SBA's Certificate of Competency program undermining your nonresponsibility determination.  See the following two FAR Subsections to understand what I mean.  My emphases should make this pretty self-explanatory, but again this only matters to a nonresponsible small business offeror.

Quote

19.602-1 Referral.

(a) Upon determining and documenting that an apparent successful small business offeror lacks certain elements of responsibility (including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting but for sureties see 28.101-3(f) and 28.203-1(e)), the contracting officer shall -

(1) Withhold contract award (see 19.602-3); and

(2) Refer the matter to the cognizant SBA Government Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located, in accordance with agency procedures, except that referral is not necessary if the small business concern -

  (i) Is determined to be unqualified and ineligible because it does not meet the standard in 9.104-1(g); provided, that the determination is approved by the chief of the contracting office; or

  (ii) Is suspended or debarred under Executive Order 11246 or subpart 9.4.

Quote

9.104-1 General standards.

To be determined responsible, a prospective contractor must -

(a) Have adequate financial resources to perform the contract, or the ability to obtain them (see 9.104-3(a));

(b) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;

(c) Have a satisfactory performance record (see 9.104-3(b) and subpart 42.15). A prospective contractor shall not be determined responsible or nonresponsible solely on the basis of a lack of relevant performance history, except as provided in 9.104-2;

(d) Have a satisfactory record of integrity and business ethics (for example, see subpart 42.15);

(e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors) (see 9.104-3(a));

(f) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them (see 9.104-3(a)); and

(g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations (see also inverted domestic corporation prohibition at 9.108).

For your sake, I implore you to reconsider sticking your neck out with a special ("definitive") standard if the law already covers this.  Not to mention, anybody that used to listen to the syndicated radio show, "Bob and Tom in the Morning" will enjoy hearing you say, "It's state law!"

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I appreciate everyone's feedback. Although I probably wont respond to everyone's posts I'll give some morning statements. 

I'm aware of the COC process. 

There are several state laws governing blasting such as ORS 480. 

Again i'm doing an IFB, so i'm limited to evaluating price and price related factors with bids. (not a 2-step). I could, but do not want to, use the source selection process at 15.1.

I'm familiar with the FP-14 (was on the team that updated it from the FP-03), and coming soon to a screen near you is the FP-24. 

I'm still gonna do what i said i'm gonna do, but as what i "think" will be my last question, towards the criticism of using a special standard or responsibility in my circumstance, can you, or will you, provide an example of when one might benefit from using a special standard? presumably that process is in the FAR for a reason, and i'm apparently not understanding why or when it would be appropriate to use.

 

And lastly, 

1 hour ago, formerfed said:

But I get so annoyed at COs who won’t make decisions or do things without checking first with their management, policy/review personnel, lawyer, etc. on even the most basic issues.  

 I dont like that either. Why the Army works is NCO's can make field decisions based on the best info they have at the time. 

 

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53 minutes ago, dsmith101abn said:

can you, or will you, provide an example of when one might benefit from using a special standard?

In retrospect, as the IHS CO for the solicitation that the GAO decision I specifically posted is with regard to and based on the whole of the process in dealing with the protest and its subsequent ruling and wording my approach would have been to make the lab certification a special standard of responsibility.  I too understand COC and have considered same in making this statement with acknowledgement that the instant solicitation that the protest discusses was a full and open sealed bid.  A special standard in my view gives something very specific to base a determination of responsibility on leaving SBA little wiggle room. 

For the specific matter in this thread I believe the FAR gives the latitude to make  both the certificate and the matter of experience a special standard (with emphasis)  bearing......

9.104-2 (a) When it is necessary for a particular acquisition or class of acquisitions, the contracting officer shall develop, with the assistance of appropriate specialists, special standards of responsibility. Special standards may be particularly desirable when experience has demonstrated that unusual expertise or specialized facilities are needed for adequate contract performance. The special standards shall be set forth in the solicitation (and so identified) and shall apply to all offerors.

I think the last emphasis is key.   Shall apply to all is important in the scheme of things as general standards by their very nature and application do not necessary apply to "all". 

Hope I have helped no matter the approach you and your team decide to take.  .  Best of luck moving forward.

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59 minutes ago, C Culham said:

Hope I have helped no matter the approach you and your team decide to take.  .  Best of luck moving forward.

Thanks Carl.

I especially appreciate the leeway comment. When I had my first kid i was overwhelmed by parent advice, some of people who had young kids, some older kids, some had kids 40 years ago and some with never having kids. To this advice I would say good idea, turn around and do whatever the F i wanted. I appreciate the idea that not one way is correct and the other is wrong and there are options. I feel HQ might be out of touch with the field here! or I'm an idiot, that's a possibility.

That's not to downplay the value of the feedback I've received on this form. It is much appreciated.  hopefully nobody's offended.

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3 hours ago, dsmith101abn said:

I'm still gonna do what i said i'm gonna do, but as what I "think" will be my last question, towards the criticism of using a special standard or responsibility in my circumstance, can you, or will you, provide an example of when one might benefit from using a special standard? presumably that process is in the FAR for a reason, and i'm apparently not understanding why or when it would be appropriate to use.

No. It's not worth the bother given that you're firmly committed to a course of action.

The provision for special responsibility criteria has been in the procurement regs since before I entered the workforce in 1974. The wording of the provision in the 1970 ASPR, 32 CFR § 1.903-3, was very similar to FAR 1.104-2:

Quote

§ 1.903-3 Special standards. When the situation warrants, contracting officers shall develop with the assistance of technical personnel or other specialists, special standards of responsibility to be applicable to a particular procurement or class of procurements. Such special standards may be particularly desirable where a history of unsatisfactory performance has demonstrated the need for insuring the existence of unusual expertise or specialized facilities necessary for adequate contract performance. The resulting standards shall form a part of the solicitation and shall be applicable to all bidders or offerors.

For those readers who don't think they already know enough about something they don't really understand, see Kidd and Franing, Effectiveness of Definitive Responsibility Criteria in Sealed Bidding for Heavy Construction Projects (2019), Naval Postgraduate School (98 pp).

https://upload.wikimedia.org/wikipedia/commons/b/b1/EFFECTIVENESS_OF_DEFINITIVE_RESPONSIBILITY_CRITERIA_IN_SEALED_BIDDING_FOR_HEAVY_CONSTRUCTION_PROJECTS_(IA_effectivenessofd1094563468).pdf

The abstract:

Quote

This project examines the performance outcomes of procurements using definitive responsibility criteria (DRC) as special standards of responsibility consistent with FAR 9.104-2 to determine if the DRC are worthwhile. Contractor Performance Assessment Reporting System (CPARS) reports were compared for heavy construction projects procured via invitations for bids (IFB) that included DRC and that did not include DRC. The project also includes non-statistical examples of outcomes with data grounded in Government Accountability Office protest decisions and SBA certificate of competency decisions.

The project concludes that DRC did not improve performance outcomes for the contracts examined, but the statistical significance of the findings are not sufficient to predict future outcomes when DRC are included in solicitations. The project also offers several practical recommendations for agencies contemplating use of DRC and recommends further research.

The authors concluded that the use of DRC is a mixed bag.

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  • 1 month later...
On 8/25/2022 at 8:58 AM, joel hoffman said:

dsmith wants the contractor to show that it has a blaster in charge with the required experience and certification “now” rather than a month prior to the blasting operations. We know next to nothing about the scope of the project or when, in the schedule after award, the blasting operation would occur.

In related acquisition news, not necessarily about contractor responsibility: anyone interested in the GAO's opinion on whether a FAR Part 15 procurement can use a pass/fail evaluation criterion pre-award or is better off using a post-award requirement should read this case: B-420543; B-420543.2, Insight Technology Solutions, Inc. (gao.gov)

Quote

An agency’s otherwise legitimate requirements regarding an offeror’s demonstrated ability to meet contract requirements may not generally be applied at a point in time prior to when such qualifications become relevant.

Just found a pertinent opinion and though I'd share.  Didn't mean to reopen the thread or anything.

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