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Any though on adding agency local clauses to a GWAC order?

Management in my agency is saying you cannot add them, however I believe it is acceptable as long as the local clauses do not conflict with the clauses in the GWAC. Curious to hear what others say. The GWAC in question is NASA SEWP. I cannot find anything on SEWP that discusses this.

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29 minutes ago, ContractingGuy said:

Any though on adding agency local clauses to a GWAC order?

Can you do it? I don't know. I want to emphasize that. But if I had to place a bet, I'd bet that an audit of orders against any of the various GWACs would show that ordering works like TEGWAR, The Exciting Game Without Any Rules.

For more about TEGWAR, see the 1973 movie "Bang The Drum Slowly."

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See here:

https://sewpdev.servicenowservices.com/support/?id=kb_article_view&sys_kb_id=d1a0ec8bdbb49b00525bf3421f96194d

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The SEWP Contracts include the clause (Section A.1.3. PROCEDURES FOR ORDERS):

“The issuing Contracting Officer may negotiate additional Terms and Conditions for a specific order. (e.g. The ordering Agency IT security policies, procedures and requirements or leasing of SEWP equipment may be included in individual orders.) This contract shall prevail in the event of conflict with any order.”

Current clauses can be found at: https://www.sewp.nasa.gov/contract_info.shtml

Agencies with unique Terms and Conditions are encouraged to include the Ts and Cs on their Delivery Orders, after ensuring that such Ts and Cs are mutually agreeable with the SEWP Contract Holder. An example may be special delivery requirements. Note that neither Contract Holders nor Government Agencies may add unilateral Ts and Cs to a SEWP Order.

 

 

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45 minutes ago, formerfed said:

Why would you need to add local clauses?

Because delivery orders under GWACs and MACs are not traditional delivery orders under IDIQ contracts. They are really new contracts. The various divisions and individual offices within agencies that place orders under GWACs and MACs have local concerns and follow local procedures that GWACs and MACs do not address, but that those offices would ordinarily address under new contracts. So they want to add clauses to their orders that address their local concerns and procedures. And COs are sometimes unsure about the applicability of their agency FAR supps to orders placed under GWACs and MACs.

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Vern, I know all that.  Local offices do have concerns and procedures but most of them I see don’t serve any real purpose.  Every office thinks they are unique and individual people thinking in a stovepipe mode want their perspective included whether it’s physical delivery at a loading platform, background checks on employees, tracking new property, special invoicing, and on and on.  In the case of SEWP, NASA has some pretty specialized requirements.  But if their local offices can get by with the SEWP T&C’s probably most other agencies can as well.

A pet peeve of mine is the perceived need within the government that everything must be spelled out in detail and every agency is unique.  The notion is workers can’t be trusted to think on their own.  So management needs to make the process foolproof and identical for everyone.  We can’t get by with just the FAR.  DoD needs the DFARS.  Then the components needs more so we end up with things like the Navy supplement.  Then the next level down at the command and lower levels have their procedures.  So with all this, a local contracting office feels they need to include all this plus local instructions in an order.  And, in the case of SEWP, the items are commercial.  So my original question of why would you need local clauses is asked in this context.  I bet just about everything the office wants isn’t really important.

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2 hours ago, formerfed said:

A pet peeve of mine is the perceived need within the government that everything must be spelled out in detail and every agency is unique.  The notion is workers can’t be trusted to think on their own.

@formerfedI don't think everything is spelled out in detail.

Take a look at FAR 15.305, Proposal evaluation. That doesn't spell anything out in detail. That section assumes that a workforce that has received little if any education in decision-making processes knows what evaluation is and how to do it. 

Take a look at FAR 15.306(d), Exchanges with offerors after receipt of proposals𑁋the discussions rule. At first glance that might seem to spell things out in detail, but it doesn't. Agencies have struggled for decades to figure out how to conduct competitive negotiations. But instead of figuring it out they award without discussions.

Everybody thinks. But not everybody is an educated and trained thinker. Cutting and pasting is considered thinking.

But, I think you know all that.

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41 minutes ago, Vern Edwards said:

@formerfedI don't think everything is spelled out in detail.

Take a look at FAR 15.305, Proposal evaluation. That doesn't spell anything out in detail. That section assumes that a workforce that has received little if any education in decision-making processes knows what evaluation is and how to do it. 

Take a look at FAR 15.306(d), Exchanges with offerors after receipt of proposals𑁋the discussions rule. At first glance that might seem to spell things out in detail, but it doesn't. Agencies have struggled for decades to figure out how to conduct competitive negotiations. But instead of figuring it out they award without discussions.

Everybody thinks. But not everybody is an educated and trained thinker. Cutting and pasting is considered thinking.

But, I think you know all that.

I wholeheartedly agree with you.

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1 hour ago, Vern Edwards said:

@formerfedI don't think everything is spelled out in detail.

Take a look at FAR 15.305, Proposal evaluation. That doesn't spell anything out in detail. That section assumes that a workforce that has received little if any education in decision-making processes knows what evaluation is and how to do it. 

Take a look at FAR 15.306(d), Exchanges with offerors after receipt of proposals𑁋the discussions rule. At first glance that might seem to spell things out in detail, but it doesn't. Agencies have struggled for decades to figure out how to conduct competitive negotiations. But instead of figuring it out they award without discussions.

Ok, most everything 😀 

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On 10/25/2022 at 3:59 PM, Vern Edwards said:

Take a look at FAR 15.306(d), Exchanges with offerors after receipt of proposals𑁋the discussions rule. At first glance that might seem to spell things out in detail, but it doesn't. Agencies have struggled for decades to figure out how to conduct competitive negotiations. But instead of figuring it out they award without discussions.

I believe that there is also some background to your factual point here. It goes back to the FAR 15.6 coverage of source selections in the pre-“FAR 15 Rewrite” version of Part 15. Prior to 30 Sep 1997 (FAC 97-2). 

I think that many legacy KO’s and other senior acquisition officials were stuck on the old “do not” rules after the Rewrite.  Unless one read the entire FAC 97-2 or other sources discussing the objectives and detailed background for the update or received specific training, they might not appreciate or understand the significance of the revised coverage.

I think that many of the legacy acquisition officials didn’t train new or subsequent contracting and acquisition personnel and perhaps didn’t update their SOPs and policies.

So, institutional regs and SOP’s are often handed down…

“That’s the way we’ve always done it here” (24 years later).

In particular in the “Pre-FAR 15 Rewrite” coverage in FAR 15.610, as of January. - August 1997:

-The “Stone Age” rule for establishing a competitive range for discussions. “Do Not limit the competitive range”(include all offers with a reasonable chance of award and “when in doubt, the proposal should be included”). This often meant to lawyers and KO’s to include everybody for fear of protests.

- Beginning the 15.610 coverage on discussions with offerors after establishing the competitive range with a list of when discussions aren’t necessary (or “how to avoid discussions”) 

- Limited, conservative  coverage of topics to be included for discussions.

—No mention of discussing any weaknesses or objectionable aspects of the proposal that otherwise meet the minimum solicitation requirements.

Then there were the DONT’s, such as

-The prohibition on “technical leveling”,  which struck fear into the hearts of people, including many KO’s and the lawyers and limited the breadth of topics for discussions. Weaknesses? Bargaining for better performance when proposal meets the minimum acceptable requirements? No and No ! 

-Conducting only one round of discussions  and requesting “Best and Final Offers”

-Discouraging subsequent discussions or requesting what we referred to as “Best and Really Final Offers” (BARFO’s).

Our office studied the rewrite and background/objectives and soon adapted our thinking and acting to the Rewrite, at least while I was assigned to that District.

I was a source selection practitioner for construction, D-B JOC, installation and facility O&M contracts and a few service contracts.

I was a Design-Build proponent for USACE, an ACO and was a course developer and instructor for the USACE Design-Build course (all aspects and phases of the life-cycle of a design-build project) taught to our agency and many other DoD and Non DoD students and agencies. 

Over the years since 1998 up until at least 2010,  some contracting and other acquisition officials would still mention to me in class a ban on “technical leveling”.  And I heard all the way up to my last Design-Build Construction class in 2016 that “we aren’t allowed to discuss aspects of a proposal that we don’t like if it meets the minimum RFP - requirements. That was both within the class and across the Corps in at least three Districts.

And that’s just the non-price aspect of discussions. Price related aspects in solicitations and price “discussions” in competitively negotiated acquisition are even sorrier from my observations.

I won’t bore you any further with specific project examples due to lack of understanding or application of the FAR Part 15 rewrite, but there are many for both non-price and price. 

 

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11 hours ago, joel hoffman said:

I won’t bore you any further with specific project examples due to lack of understanding or application of the FAR Part 15 rewrite, but there are many for both non-price and price. 

 

On the contrary, Joel, thank you, and please go on if you have more of this...The chance to examine these examples second hand all at one sitting many years later is quite enlightening!

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13 hours ago, FAR-flung 1102 said:

On the contrary, Joel, thank you, and please go on if you have more of this...The chance to examine these examples second hand all at one sitting many years later is quite enlightening!

Unfortunately, I deleted my non-price examples when I edited my notes before posting. When I get some time, I will  describe some technical and pricing examples of lack of meaningful discussions, indicative of typical practices, well after the FAR 15 Re-write.

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In the meantime, I didn’t include this description from my notes of some of the contrast between the pre and post Rewrite versions (FAC 97-2), regarding discussions in competitively negotiated source selections:

Matter of Dynacs Engineering Company, Inc. B-284234; B-284234.2; B-284234.3 March 17, 2000):

“The prior version of the FAR* contained provisions that could be read to limit the extent to which agencies conducted ongoing discussions with an offeror. For example, agencies were prohibited from engaging in technical leveling helping an offeror to bring its proposal up to the level of other proposals through successive rounds of discussions, such as by pointing out weaknesses resulting from the offeror’s lack of diligence, competence, or inventiveness in preparing the proposal). “

*See FAR § 15.610(d), as of June 1997. I have soft bound books for the June 1997 and January 1998 editions of  the FAR.

FAC 97-2 (30 Sep 1997, effective 10 Oct 1997, mandatory on 1 Jan 1998) states, in part:

“The final rule revises Part 15, Contracting by Negotiation. The final rule infuses innovative techniques into the source selection process, simplifies the acquisition process, incorporates changes in pricing and unsolicited proposal policy, and facilitates the acquisition of best value products and services. The final rule emphasizes the use of effective and efficient acquisition methods and eliminates unnecessary burdens imposed on industry and Government. ** ”

** e.g., the narrower criteria for inclusion in the competitive range for discussions. The former criteria caused a burden on both government and industry. Especially burdensome for construction and design-build firms, who had some of their bonding capacity and their resources devoted to Bidding and Proposing other work tied up, if they decided to remain in the instant competition.

The GAO Decision that I referenced above went on to say:

“…These restrictions were eliminated by the part 15 rewrite. The current FAR does not discourage agencies from resolving a given proposal weakness or deficiency by means of multiple rounds of discussions with the offeror. See FAR § 15.306; Spectrum Science & Software, Inc., B-282373, June 22, 1999, 99-1 CPD ¶ 114 at 4. Indeed, we think that both the stated primary objective of discussions--to maximize the government’s ability to obtain the best value, based on the requirements and evaluation factors set forth in the solicitation, FAR § 5.306(d)(2)--and, more significantly, the definition of discussions--which includes bargaining, consisting of persuasion, alteration of assumptions and positions, and give and take, FAR §15.306(d)--arguably presuppose that there may be multiple discussions regarding an issue. Nothing in the regulation suggests that further discussions on an issue are impermissible simply because they may occur on separate occasions, over a period of time. We conclude that there was nothing improper in the agency’s raising the same concerns in two rounds of discussions with FDC.”

 

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@joel hoffmanSome background (not all there is) on discussions:

The history of "discussions" begins in 1961, when the Armed Services Procurement Regulation (ASPR) § 3.805-1 was revised to include a requirement for "discussions" with all offerors within a "competitive range." See 32 CFR 26 Fed. Reg. 2599, 2605, March 28, 1961:

Quote

(a) After receipt of initial proposals, written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price and other factors considered...

Congress enacted that rule into law as part of the Truth in Negotiations Act, Pub. L. 87-653 (1962), and it was inserted into 10 USC 2304(g).

The ASPR went on to say:

Quote

(b) Whenever -negotiations are conducted with more than one offeror, no indication shall be made to any offeror of a price which must be met to obtain further consideration, since such practice constitutes an auction technique which must be avoided. No information regarding the number or identity of the offerors participating in the negotiations shall be made available to the public or to any one whose official duties do not require such knowledge. Whenever negotiations are being conducted with several offerors, while such negotiations may be conducted successively. all offerors participating in such negotiations shall be offered an equitable opportunity to submit such pricing, technical, or other revisions in their proposals as may result from the negotiations. All offerors shall be informed that after the submission of final revisions, no information will be furnished to any offeror until award has been made. Modifications of proposals received after the submission of final prices shall be considered only under the circumstances set forth in § 3.804-2(b) (relating to late proposals). 

That language was not included in the statute.

Industry began complaining about "technical leveling" in the early 1970s. See Aerospace Industries Assoc., Aerospace Technical Council, Procurement and Finance Council, Essential Technical Steps and Related Uncertainties in DOD Weapon Systems Development, Phase IV Final Report (December 1970), Section 8.0, Technical Transfusion and Leveling, pp. 52-58, esp. p. 58:

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It is the general opinion of industry that current procurement practices and procedures do not offer adequate protection to a contractor's unique ideas and concepts which are still proprietary. 

And see Section 8.5, Summary Recommendations:

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DOD policies and practices should be revised to eliminate technical leveling and technical transfusion prior to final contractor selection.

The early regulatory prohibitions against technical leveling were in agency source selection regulations, not the ASPR or the FPR. All of us in system development knew about technical leveling and sought scrupulously to avoid it.

It appears that NASA adopted its "Four Step" source selection procedure early in the 1970s in order to avoid technical leveling and transfusion. That procedure, which was described in NASA PROCUREMENT DIRECTIVE 70-15, precluded the discussion of deficiencies during discussions. See To The Administrator, National Aeronautics and Space Administration51 Comp. Gen. 621, B-173677, March 31, 1972. That was the first GAO decision to refer to transfusion and "leveling."

DOD adopted the "Four Step" procedure during the 1970s, but it never really caught on in that agency. Coverage of it was dropped from the DFARS in 1997, but it is still permitted. I don't think anyone uses it.

I joined the Air Force workforce in 1974 and participated in my first source selection in 1975. The CO, Mr. C. Howard Kirk, was meticulous about avoiding technical leveling and technical transfusion and adopted procedures to prevent them from happening, but those procedures did not otherwise constrain discussions. 

The first mention of technical leveling in the Federal Register came from the Dept. of Energy on January 30, 1979, 44 Fed. Reg. 6038, when it published a proposed Procurement Regulations Handbook No. 1, Internal Policy and Procedures, Source Evaluation and Selection Process:

Quote

The board will conduct written and/or oral discussions with all offerors whose proposals are in the competitive range. The extent of discussions will depend on the circumstances of the procurement and the proposals submitted. The board should be careful in its written and/or oral discussions to avoid technical transfusion or technical leveling between offerors. Discussions should be sufficiently probing and detailed to assure the board's understanding of the proposal: SEB members should employ oral discussions as a means of evaluating the abilities of personnel proposed by the offeror and their comprehensions of the offeror's proposal. 

That's all it said. That was written when DOE was young. It was created in 1977 and its contracting staff were peopled largely by former DOD personnel. I remember when Air Force personnel left to go to work there. They took their knowledge with them.

The ASPR and its successor, the Defense Acquisition Regulation, never did mention technical leveling. The first mention of technical level in the CFR was in the 1983 edition of the Federal Procurement Regulation, Title 41 of the CFR, which said:

Quote

(c) The contracting officer and other Government personnel shall not engage in the following: (1) Technical leveling (i.e., helping any offeror to bring its proposal up to the level of other proposals through successive rounds of discussion by pointing out weaknesses resulting from the offeror's lack of diligence, competence, or inventiveness in preparing the proposal)...

That language apparently came from a 1972 GAO decision, cited above, To The Administrator...

Quote

OBVIOUSLY, DISCLOSURE TO OTHER PROPOSERS OF ONE PROPOSER'S INNOVATIVE OR INGENIOUS SOLUTION TO A PROBLEM IS UNFAIR. WE AGREE THAT SUCH ‘TRANSFUSION‘ SHOULD BE AVOIDED. IT IS ALSO UNFAIR, WE THINK, TO HELP ONE PROPOSER THROUGH SUCCESSIVE ROUNDS OF DISCUSSIONS TO BRING HIS ORIGINAL INADEQUATE PROPOSAL UP TO THE LEVEL OF OTHER ADEQUATE PROPOSALS BY POINTING OUT THOSE WEAKNESSES WHICH WERE THE RESULT OF HIS OWN LACK OF DILIGENCE, COMPETENCE, OR INVENTIVENESS IN PREPARING HIS PROPOSAL. 

That's the language that appeared in the very first version of FAR 15.610(d)(1):

Quote

(d) The contracting officer and other Government personnel involved shall not engage in—

(d)(1) Technical leveling (i.e., helping an offeror to bring its proposal up to the level of other proposals through successive rounds of discussion, such as by pointing out weaknesses resulting from the offeror's lack of diligence, competence, or inventiveness in preparing the proposal)...

Trouble with technical level began with the enactment of CICA in 1984. Agencies whose personnel knew very little about competitive negotiated procurement (source selection) began using it. Most had not been involved in systems acquisition and did not understand what technical leveling was really about. The concept generally did not apply to non-technical acquisitions. But FAR did not explain clearly.

The FAR Part 15 Rewrite was published in order to eliminate a problem that had been caused when work was assigned to people who had not been educated in the concepts and principles that were involved in that work and didn't know what they were doing. The GAO never sustained a protest in which an agency was found to have engaged in technical leveling. To the best of my knowledge the only protest tribunal that has ever sustained a protest of technical leveling was the now-defunct GSBCA, when it had protest authority over IT acquisitions. See  Tidewater Consultants, Inc., GSBCA 8069-P, 85-2 BCA ¶18387, September 4, 1985:

Quote

 

That leaves us with the question of technical leveling. This is not something new. Rather, it is a concept that has grown out of the lack of any specific guidance in 10 U.S.C. § 2304(g) (1982) for the conduct of competitive negotiations. This statute requires that “written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price and other factors considered.” Id. The basic requirement is that these discussions be conducted fairly. All offerors must receive equal consideration, and none may be helped to the detriment of the others. It was only after several years of experience with the statute after its adoption in 1962 that there came the realization that successive rounds of negotiations could dilute competition or create unfairness because the Government was, in effect, assisting weaker offerors in revising their technical proposals under the guise of conducting meaningful discussions. A. Gallagher, The Law of Federal Negotiated Contract Formation 209–10 (1981). The concept of prohibited technical leveling was first set out in 51 Comp.Gen. 621, 622 (1972), J. Cibinic & R. Nash, Formation of Government Contracts 384–85 (1982), and it has since been adopted and followed in the regulations, i.e., FAR 15.610(d)(1), finding 32. In fact, the language in FAR 15.610(d)(1) is taken from 54 Comp.Gen. 60, 63–64 (1974).

If the facts in this case do not present a clear case of prohibited technical leveling, then the concept does not exist. 

 

The Rewrite was designed to open up discussions, but it did not succeed in doing so, because it did not solve a problem that has been with us since 1947:

How does one negotiate in a competitive arena?

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58 minutes ago, Vern Edwards said:

@joel hoffmanSome background (not all there is) on discussions:

The history of "discussions" begins in 1961, when the Armed Services Procurement Regulation (ASPR) § 3.805-1 was revised to include a requirement for "discussions" with all offerors within a "competitive range." See 32 CFR 26 Fed. Reg. 2599, 2605, March 28, 1961:

Congress enacted that rule into law as part of the Truth in Negotiations Act, Pub. L. 87-653 (1962), and it was inserted into 10 USC 2304(g).

The ASPR went on to say:

That language was not included in the statute.

Industry began complaining about "technical leveling" in the early 1970s. See Aerospace Industries Assoc., Aerospace Technical Council, Procurement and Finance Council, Essential Technical Steps and Related Uncertainties in DOD Weapon Systems Development, Phase IV Final Report (December 1970), Section 8.0, Technical Transfusion and Leveling, pp. 52-58, esp. p. 58:

And see Section 8.5, Summary Recommendations:

The early regulatory prohibitions against technical leveling were in agency source selection regulations, not the ASPR or the FPR. All of us in system development knew about technical leveling and sought scrupulously to avoid it.

It appears that NASA adopted its "Four Step" source selection procedure early in the 1970s in order to avoid technical leveling and transfusion. That procedure, which was described in NASA PROCUREMENT DIRECTIVE 70-15, precluded the discussion of deficiencies during discussions. See To The Administrator, National Aeronautics and Space Administration51 Comp. Gen. 621, B-173677, March 31, 1972. That was the first GAO decision to refer to transfusion and "leveling."

DOD adopted the "Four Step" procedure during the 1970s, but it never really caught on in that agency. Coverage of it was dropped from the DFARS in 1997, but it is still permitted. I don't think anyone uses it.

I joined the Air Force workforce in 1974 and participated in my first source selection in 1975. The CO, Mr. C. Howard Kirk, was meticulous about avoiding technical leveling and technical transfusion and adopted procedures to prevent them from happening, but those procedures did not otherwise constrain discussions. 

The first mention of technical leveling in the Federal Register came from the Dept. of Energy on January 30, 1979, 44 Fed. Reg. 6038, when it published a proposed Procurement Regulations Handbook No. 1, Internal Policy and Procedures, Source Evaluation and Selection Process:

That's all it said. That was written when DOE was young. It was created in 1977 and its contracting staff were peopled largely by former DOD personnel. I remember when Air Force personnel left to go to work there. They took their knowledge with them.

The ASPR and its successor, the Defense Acquisition Regulation, never did mention technical leveling. The first mention of technical level in the CFR was in the 1983 edition of the Federal Procurement Regulation, Title 41 of the CFR, which said:

That language apparently came from a 1972 GAO decision, cited above, To The Administrator...

That's the language that appeared in the very first version of FAR 15.610(d)(1):

Trouble with technical level began with the enactment of CICA in 1984. Agencies whose personnel knew very little about competitive negotiated procurement (source selection) began using it. Most had not been involved in systems acquisition and did not understand what technical leveling was really about. The concept generally did not apply to non-technical acquisitions. But FAR did not explain clearly.

The FAR Part 15 Rewrite was published in order to eliminate a problem that had been caused when work was assigned to people who had not been educated in the concepts and principles that were involved in that work and didn't know what they were doing. The GAO never sustained a protest in which an agency was found to have engaged in technical leveling. To the best of my knowledge the only protest tribunal that has ever sustained a protest of technical leveling was the now-defunct GSBCA, when it had protest authority over IT acquisitions. See  Tidewater Consultants, Inc., GSBCA 8069-P, 85-2 BCA ¶18387, September 4, 1985:

The Rewrite was designed to open up discussions, but it did not succeed in doing so, because it did not solve a problem that has been with us since 1947:

How does one negotiate in a competitive arena?

Thanks, Vern! When I get an opportunity to rewrite my examples concerning hesitation to or complete lack of taking the opportunity to discuss technical aspects or pricing in some design-build and construction source selections, I’ll try to partially address your question:  “How does one negotiate in a competitive arena?”

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On 10/29/2022 at 11:41 AM, Vern Edwards said:

That leaves us with the question of technical leveling. This is not something new. Rather, it is a concept that has grown out of the lack of any specific guidance in 10 U.S.C. § 2304(g) (1982) for the conduct of competitive negotiations. This statute requires that “written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price and other factors considered.” Id. The basic requirement is that these discussions be conducted fairly. All offerors must receive equal consideration, and none may be helped to the detriment of the others. It was only after several years of experience with the statute after its adoption in 1962 that there came the realization that successive rounds of negotiations could dilute competition or create unfairness because the Government was, in effect, assisting weaker offerors in revising their technical proposals under the guise of conducting meaningful discussions. A. Gallagher, The Law of Federal Negotiated Contract Formation 209–10 (1981). The concept of prohibited technical leveling was first set out in 51 Comp.Gen. 621, 622 (1972), J. Cibinic & R. Nash, Formation of Government Contracts 384–85 (1982), and it has since been adopted and followed in the regulations, i.e., FAR 15.610(d)(1), finding 32. In fact, the language in FAR 15.610(d)(1) is taken from 54 Comp.Gen. 60, 63–64 (1974).

If the facts in this case do not present a clear case of prohibited technical leveling, then the concept does not exist. 

 

On 10/29/2022 at 11:41 AM, Vern Edwards said:

[FAR 15.610(d)(1)] Technical leveling (i.e., helping an offeror to bring its proposal up to the level of other proposals through successive rounds of discussion, such as by pointing out weaknesses resulting from the offeror's lack of diligence, competence, or inventiveness in preparing the proposal)...

 The FAR 15 re-write did remove the restriction for having more than one round of discussions and revisions to offers. However, for us that didn’t result in technical leveling.

The FAR re-write allowed us to eliminate all but the most highly rated and competitive offers before and during discussions. That is a huge contrast with the previous requirement to include all offers with a reasonable chance of award and “when in doubt include the offer”, that I spoke of in an earlier post.

The re-write also provides an opportunity for the KO to further limit the competitive range for purposes of efficiency, in the event there are many highly rated offers.

The re-write allows us to eliminate an offer after discussions if it is or becomes no longer competitive.

I had such an experience before the re-write where a firm in the CR wasn’t really competitive in a large USAF DB project to rebuild Homestead AFB after Hurricane Andrew. The company president asked me during discussions if they had a good chance of award.  He said we’d tied up their bonding capacity and they needed to pursue another big project rebuilding local schools if they weren’t in line for award.  I replied that I wasn’t allowed to answer his question. But, I said, if it was me- I’d pursue the school work. He thanked me profusely. They withdrew the next day, thankfully without comment! I eventually confessed to my friend, who was the KO/SSA. He laughed!  Whew! 

We found that there were a few instances where we were able to obtain acceptable non-price proposals but there were still problems with pricing within the budget or construction cost limitation. in those cases we needed to examine in further depth what was driving higher than anticipated costs. In an attempt not to get into long discourse here, I won’t expand on that right now. But we were able to discover and examine cost drivers and to make adjustments to or clarify the requirements to mitigate and reduce prices.

For design-build projects, in particular for projects with extensive performance based design criteria*, we specified a design and construction cost limitation for award, which reduced or eliminated the need for more than one round of discussions and revised offers.

The re-write also retained the ban on technical transfusion, meaning the disclosure of any offeror's technical ideas or approaches, which results in the improvement of a competing proposal.

We did inform offerors that if they deviated from a solicitation requirement as a suggested betterment, it was a deficiency and that the only way it could be accepted would be to amend the solicitation to allow all offerors to include the aspect in their revised proposals.

On 10/29/2022 at 6:43 PM, joel hoffman said:

Thanks, Vern! When I get an opportunity to rewrite my examples concerning hesitation to or complete lack of taking the opportunity to discuss technical aspects or pricing in some design-build and construction source selections, I’ll try to partially address your question:  “How does one negotiate in a competitive arena?”

It’s on my do list. I have three or four specific examples of failing to discuss objectionable aspects of proposals even though they met the minimum performance design criteria . I have a couple examples where the KO didn’t have a clue how to discuss excess pricing or how to bargain for better performance where millions of dollars were left on the table.

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