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What does "technical" mean?


Vern Edwards

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I have always found the word technical, as used in the FAR System and in government solicitations, to be vague. What, exactly, constitutes "technical"? The word appears in the FAR itself 525 times. It appears in the DFARS 792 times. Neither regulation defines the word.

See, for example, DFARS 252,227-7013, Rights in Technical Data—Noncommercial Items (FEB 2014), paragraph (a)(15), describes "technical data" as follows:

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Technical data means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information.

What does "technical" mean? What distinguishes "technical data" from other kinds of data? What kind of information is of a "technical" nature? (The DFARS definition makes the classic mistake of using one of the words to be defined, technical, in the definition of the term.)

As contracts people, we should be especially concerned about the words we use and the words we are required to use.

For a fascinating case about the meaning of "technical" and a good read, see Raytheon Company v. United States, 160 Fed. Cl. 428, June 30, 2022.

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv0883-126-0

The Army and Raytheon got into a dispute about whether a vendor list constituted "technical data." The Army said yes; Raytheon said no. The parties argued vigorously. The judge resorted to the Oxford English Dictionary in her effort to determine what "technical" means. A classic case of contract interpretation. A must-read for all contracting officers, would-be contracting officers, contractors, and would-be contractors.

The decision includes a great bonus: What does "incorporation by reference" mean and how should it be done?

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I looked at one of the beginning lines in the case . . .

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This case arises out of a dispute between the parties regarding whether the information on the vendor lists constitutes “technical data" . . .

I haven't looked at the arguments yet but my immediate view is that vendor lists as technical data is nonsense.  Then I thought of the use of "technical evaluations" of offerors price proposals that we used 50 years ago.  I wouldn't view that as technical either.

I can still remember a GAO auditor from our Philadelphia region who did the old GAO pricing reviews using his term "techeval" whenever he saw me.  That was in the early 1970s.

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1 hour ago, bob7947 said:

Then I thought of the use of "technical evaluations" of offerors price proposals that we used 50 years ago. 

We still see references to "technical evaluations" and "technical factors" applied to proposals with non-technical content. In fact, such references are very common. And see the newly-revised DOD source selection procedures, page C-4:

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Technical. The term “technical,” as used herein, refers to non-price factors other than past performance.

So factors like key personnel qualifications are "technical."

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We used the term technical and techeval times refer to the non-price factors. We asked for separate technical  and price volumes.

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On 8/29/2022 at 11:19 AM, Vern Edwards said:

For a fascinating case about the meaning of "technical" and a good read, see Raytheon Company v. United States, 160 Fed. Cl. 428, June 30, 2022.

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv0883-126-0

I can admire how the judge starts with a process of elimination.  This opinion reflects parties that know the defense acquisition system well it appears, because on page 5 we start by learning technical data is not management data, which is “data not technically or financially oriented.”  There’s more to that statement than meets the eye!

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FAR 15.305 lists the following categories of proposal evaluations:  cost or price, past performance, technical, and small business subcontracting.  Within that framework, it seems to me that key personnel qualifications would be "technical."

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1 hour ago, ji20874 said:

FAR 15.305 lists the following categories of proposal evaluations:  cost or price, past performance, technical, and small business subcontracting.  Within that framework, it seems to me that key personnel qualifications would be "technical."

That would be consistent with the use prescribed by the revised DOD Source Selection Procedures.

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Wouldn't it be nice if FAR were consistent?

FAR 15.304, Evaluation factors for award, says that the following four factors must be evaluated, as prescribed:

  1. price or cost to the government,
  2. quality of the product or service (including management capability, personnel qualifications, technical excellence, and experience),
  3. past performance, and
  4. proposed small business subcontracting.

But FAR 15.305, Proposal evaluation, lists the following four categories of proposal evaluations:

  1. cost or price,
  2. past performance,
  3. technical (mentioning assessment of each offeror's ability to accomplish the technical requirements, but not mentioning the quality of the proposed product or service), and
  4. small business subcontracting.

Why don't those sections match up? They were written at the same time.

Given the way 15.304 is written, why doesn't FAR 15.305 say "quality evaluation?" instead of "technical evaluation"?

Is seems to me that regulations should be written so as to make the rules clear even to novices and to citizens seeking to compete for contracts.

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4 hours ago, Vern Edwards said:

Why don't those sections match up? They were written at the same time.

Given the way 15.304 is written, why doesn't FAR 15.305 say "quality evaluation?" instead of "technical evaluation"?

Is seems to me that regulations should be written so as to make the rules clear even to novices and to citizens seeking to compete for contracts.

I noticed upon review of FAR 15.304 that quality could mean as little as "compliance with solicitation requirements".  If it weren't for FAR 15.305's "shall" statement I show in bold text below, it seems to me that an objective checklist would be the norm, instead of the essay-writing contest.

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FAR 15.305 Proposal evaluation

(a)Proposal evaluation is an assessment of the proposal and the offeror's ability to perform the prospective contract successfully. An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation. Evaluations may be conducted using any rating method or combination of methods, including color or adjectival ratings, numerical weights, and ordinal rankings. The relative strengths, deficiencies, significant weaknesses, and risks supporting proposal evaluation shall be documented in the contract file.

* * * *

(3) Technical evaluation. When tradeoffs are performed (see 15.101-1), the source selection records shall include -

(i) An assessment of each offeror's ability to accomplish the technical requirements; and

(ii) A summary, matrix, or quantitative ranking, along with appropriate supporting narrative, of each technical proposal using the evaluation factors

As @Don Mansfield showed @dsmith101abnin a separate thread last week, there is GAO precedent (DBISP, LLC; Federal Merchants Corp., B-419893.8, B-419893.9. Oct 27, 2021) for compliance with solicitation requirements to be the "technical evaluation" factor.  The regs were just written too poorly for it to be common knowledge.

Edited by Voyager
Removed first sentence last paragraph
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1 hour ago, Voyager said:

“FAR 15.305 Proposal evaluation

(a)Proposal evaluation is an assessment of the proposal and the offeror's ability to perform the prospective contract successfully. An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation. Evaluations may be conducted using any rating method or combination of methods, including color or adjectival ratings, numerical weights, and ordinal rankings. The relative strengths, deficiencies, significant weaknesses, and risks supporting proposal evaluation shall be documented in the contract file.

* * * *

(3) Technical evaluation. When tradeoffs are performed (see 15.101-1), the source selection records shall include -

(i) An assessment of each offeror's ability to accomplish the technical requirements; and

(ii) A summary, matrix, or quantitative ranking, along with appropriate supporting narrative, of each technical proposal using the evaluation factors”

If it weren't for this, COs wouldn't even have to worry about using FAR Part 9, where the SBA's CoC program could interfere with a nonresponsibility determination. 

Voyager,  Not sure what you meant by your last statement. In a tradeoff method, these should primarily use a relative rating system  and the tradeoff analysis would use relative comparisons of strengths and/or advantages, etc. between proposers. The KO wouldn’t have to make any non-responsibility determination. This has been upheld in protest decisions.

That is separate from the failure to comply with valid solicitation requirements, which also doesn’t necessarily amount to a non-responsibility determination.

 

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3 hours ago, Voyager said:

If it weren't for FAR 15.305's "shall" statement I show in bold text below, it seems to me that an objective checklist would be the norm, instead of the essay-writing contest.

I don't understand this. Are you saying the requirement for the prescribed source selection records that applies to tradeoffs is the cause of essay-writing contests?

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