Jump to content
The Wifcon Forums and Blogs

Recommended Posts

Hello,

I am looking for comments, suggestions, and opinions on the following proposed approach to source selection. The GAO it seems is supporting the general rule that in-depth OCI reviews on only the offeror chosen for contract award is not sufficient. Additionally, if you wait to do an in-depth OCI review until right before award a problem could arise that can put an acquisition team in a bad place if your best value offeror has a potential OCI issue.

I know that each organization has their own OCI policies and I am sure we are all waiting on the FAR council to approve the new OCI language. To overcome OCI concerns on a large upcoming procurement, I formulated the following idea and I wanted to see if anyone has tried something similar and could share lessons learned or if there are any ideas on how to overcome OCI concerns in a major procurement.

Goals:

  • Highlight potential OCI concerns early to help contractors determine whether or not they are able to fulfill the requirement.
  • Provide Government review team amply time to review and mitigate potential OCI concerns.
  • Enable the Government to make updates to the RFP stating mitigation plans that were accepted or rejected without sharing proprietary data. (This way if an offeror wants to protest based on one of those OCI issues they will have to protest the RFP instead of the award)
  • Reduce probability of OCI protest at time of award

Assumptions:

- Large complex source selection

- Dollar value over 100 million dollars

- Performance Based Requirement

- Large potential for OCI issues

- All offerors have to submit proposals in phase 1 to be considered for award

Proposal:

3 Phase Proposal Receipt:

Phase 1: The RFP would be released complete with the SOW, L&M, etc. Within 21 days of the release of the RFP any potential offeror would be instructed to submit the following.

- Complete OCI package

- Minimal Technical Proposal which only shows they meet the must haves of the requirement (essentially a capabilities statement).

- Evidence of an approved accounting system capable of attaining Government cost type contracts.

Phase 2:

The Government Team reviews the OCI submission, minimal technical proposal, and proof an approved accounting system. The Government team would then draft discussion topics and highlight potential OCI concerns.

The Government would send out those discussion topics to the potential offerors along with a request for a complete technical, business, and past performance proposal due in 30 days from this second request.

Phase 3:

Establish competitive range, complete meaningful discussion with competitive range contractors, and make award.

This is very high level and I am looking for comments on the concept and potential ways to improve it or why it won’t work. I am sure we all have different processes that our agencies make us do but I am looking more conceptual ideas on how to meet the goals stated above.

Thank you in advance for your comments, suggestions, and criticisms. It is very much appreciated.

Sincerely,

Ndean

Link to comment
Share on other sites

I honestly don't know much about the OCI, but this is a two phase source selection in my eyes. See FAR 36.3 for 2 Phase Design Build Selection Procedures, I know that is specific to construction, but you could use it as a starting point.

Phase 1 Give them 30 days, as opposed to 21, they submit minimal technical proposal and OCI package. From that you conduct discussions and select the most highly qualified offerors. In the Phase 1 Evaluation Criteria you state that only a certain number of offerors will be selected to proceed to Phase 2 (example, maximum of five minimum of three). Which is essentially a competitive range determination. Then you only allow those offerors in Phase 2 to submit the complete technical proposal, evaluate, hold discussions if necessary, and make award.

Only thing I'm not sure, is the OCI package better to have in Phase 1, or in Phase 2? I think I would rather evaluate OCI on only 3 to 5 offerors as opposed to 20 or more.

Link to comment
Share on other sites

ndean, in what phase do offerors submit a price proposal? Is it in Phase 1?

hutch_05, how can you use the 2 Phase Design-Build Selection procedures in FAR 36.3 as a starting point for a 3 phase (services?) source selection? The 2 Phase design-Build selection procedures are specifically authorized only for design-build construction under 10 U.S.C. 2305a or 41 U.S.C. 253m and covered in FAR 36.1 and 36.3. This was part of the Cohen-Clinger Act,(National Defense Authorization Act for Fiscal Year 1996, which incorporated the Federal Acquisition Reform Act of 1996). It is found in DIVISION D, TITLE XLI, Section 4105. These procedures dont authorize deviations or exceptions from standartd acquisition requirements for any other type of acquisitions.

Carl, the multi-step advisory process in FAR 15.202 is just that - an advisory process. It isn't an elimination process.

"( B) The agency shall evaluate all responses in accordance with the criteria stated in the notice, and shall advise each respondent in writing either that it will be invited to participate in the resultant acquisition or, based on the information submitted, that it is unlikely to be a viable competitor. The agency shall advise respondents considered not to be viable competitors of the general basis for that opinion. The agency shall inform all respondents that, notwithstanding the advice provided by the Government in response to their submissions, they may participate in the resultant acquisition."

Link to comment
Share on other sites

I honestly don't know much about the OCI, but this is a two phase source selection in my eyes. See FAR 36.3 for 2 Phase Design Build Selection Procedures, I know that is specific to construction, but you could use it as a starting point. Phase 1 Give them 30 days, as opposed to 21, they submit minimal technical proposal and OCI package. From that you conduct discussions and select the most highly qualified offerors. In the Phase 1 Evaluation Criteria you state that only a certain number of offerors will be selected to proceed to Phase 2 (example, maximum of five minimum of three). Which is essentially a competitive range determination. Then you only allow those offerors in Phase 2 to submit the complete technical proposal, evaluate, hold discussions if necessary, and make award.

hutch, in addition to what I said above, the agency must evaluate all proposals in accordance with 15.305(a), and, if discussions are to be conducted, establish the competitive range. If you are comparing your proposed "phase 1" process to phase 1 of a 2 phase D-B process, neither process is a "competitive range determination."

A competitive range determination follows an evaluation of both non-price and price proposals under FAR 15.305 (a).

In 2 phase DB, the government conducts Phase 1 in accordance with FAR 36.303-1. In DB phase 1, the government only evaluates DB qualification proposals to select "the most highly qualified offerors", not to exceed a pre-determined/stated maximum number. This is a "short-listing" process, not a "competitive range" determination. According to a GAO decision which I don't have access to on TDY, the agency may communicate with firms to seek minor corrections to phase 1 D-B proposals. However, in Phase 1, the government doesn't necessarily have to follow the Part 15 procedures for discussions.. We are only evaluating qualifications - no design - no price. After short-listing, the government requests phase-two D-B proposals, including technical and price proposals from .only those short-listed firms.

Per FAR 36.303-2, The government prepares and conducts a DB phase 2 in accordance with FAR Part 15. If discussions are necessary, the government "establishes a competitive range comprised of all of the most highly rated proposals, unless the range is further reduced for purposes of efficiency, pursuant to paragraph (c )(2) of that section. This is the same process as for other Part 15 competitive negotiations.

Bottom line is that there is a clear distinction between Phase 1 for D-B and a competitive range determination. In phase 1 of a D-B acquisition, the "short-list" consists of a pre-determined maximum number of "the most highly qualified offerors" to request technical and cost proposals from in phase 2. A "competitive range determination" is for the purpose of determining who to conduct discussions with after evaluating both non-price and price proposals. The competitive range consists of "all of the most highly rated proposals", unless that number is reduced for efficiency.

Link to comment
Share on other sites

Carl, ndean didnt explain when he/she would request price proposals. However - you identified a better approach in my estimation.

Why can't ndean simply use the multi-step advisory process in FAR 15.202, using a presolicitation notice "complete with the SOW, L&M, etc." ?

If so, ndean could request that interested firms submit the following.within 21 days of the Notice:

- Complete OCI package

- Minimal Technical Proposal which only shows they meet the must haves of the requirement (essentially a capabilities statement).

- Evidence of an approved accounting system capable of attaining Government cost type contracts.

The Government would evaluate the information and then advise each firm if it thinks they meet the minimum requirements and also whether or not they would be considered to be a viable competitor (Just follow the steps in 15.202).

Of course, anyone could still propose in response to the subsequent RFP including firms who didnt initially respond. If one literally follows the instructions in 15.502, we aren't supposed to ask for the same information in the subsequent solicitation. However, if any other firms respond only to the RFP and not to the pre-solicitation notice, the government would have to have enough info to determine if there is an organizational conflict of interest, .So, I would recommend ignoring the literal restriction on asking for the same info in the solicitation, if it concerns OCI matters.

I don't think it would kill the firms that responded initially to re-submit the information...

What do you think?

Link to comment
Share on other sites

Every once in awhile, I see people in this forum mention that, hey let's just use a 2 phase method like that in FAR 36.3. It's just not that simple.

The 2 phase D-B process was implemented for Federal Design-Build acquisitions as a result of righteous complaints by the U.S. design and construction industry to Congress over ruinously expensive design-build acquisition procedures being used by the Corps of Engineers, the GSA, NASA, NAVFAC, etc. Those gripes concerned 1) unmanageable and unreimbursed costs and resources to propose on design-build acquisitions and 2) the related risk of not knowing how many other firms were bidding/proposing for a D-B contract.

For IFB's the 2 step sealed bid method in FAR 14.5 was being used. For RFP's, the DoD was using the one step D-B proposal method under 10 USC 2862. Both of those methods required extensive effort and cost to prepare design submittals. In those methods, firms have little or no knowledge of how many other firms they are competing against or their chances of winning the contract until after investing relatively high, unreimbursed proposal development costs and resources.

It took almost 5 years of work by industry groups and government to get Congress to agree and implement the 2 Phase D-B method in FAR 36.3 (early 2002 - end of 2006). Unfortunately, there are many in government who are concerned that, in using the 2 phase D-B method, we are "limiting competition". There are many in government that have no clue or empathy for industry's point of view. There are many who feel that "it means more work" for the government to conduct 2 separate proposal evaluations..

The 2 phase design-build process was never intended to be used for all types of acquisitions.. It was developed for the specific problems of the design and construction industry.

At any rate, I did offer an alternative way to implement ndean's "three phase process"

SORRY ABOUT THE SOAPBOX!

Link to comment
Share on other sites

Joel, I can tell you are passionate about this, but I think you overreacted a touch here, nevertheless I am still curious and have a question. But first Just want to clarify a few things:

1. my point is that her "proposed" 3 phase approach looked more like 2 phases to me. Because I didn't consider evaluation of the proposals a phase.

2. selecting individuals to go from Phase 1 to Phase 2 is not in the very "literal" sense a competitive range determination. I understand and comprehend all the points and differences you lectured above.

3. Thank you for the history behind the 2 Phase Design-Build Source Selection. My point was for ndean to familiarize herself with 2 Phase D/B procedures, then to tailor her own 2 Phase acquisition of services. Not to follow FAR 36.3 exactly (even though there is not much to follow in that section), as that is obviously for construction.

Now for my question. What in the FAR or supplements tells me that I cannot use a 2-Phase or 4-Phase or 10-Phase Solicitation process? As long as it is clearly stated upfront in the solicitation, does not unduly restrict competition, and follows either FAR 14 or FAR 15, what keeps me from using a multi-phase solicitation approach for supplies or services?

Link to comment
Share on other sites

.

Now for my question. What in the FAR or supplements tells me that I cannot use a 2-Phase or 4-Phase or 10-Phase Solicitation process? As long as it is clearly stated upfront in the solicitation, does not unduly restrict competition, and follows either FAR 14 or FAR 15, what keeps me from using a multi-phase solicitation approach for supplies or services?

Hutch, The specific 2 multi-phase procedures that I can think of in Parts 14 and 15 are the multi-step advisory process in FAR 15.202 and the 2 step sealed bid method in FAR 14.5. But note that the multi-step advisory process still allows those firms not considered quaified or technically competitive to submit proposals in the subsequent source selection. One can go through the necessary legal steps to limit competition to less than full and open and I suppopse one can pre-qualify firms to participate, such as in 236.272 for construction. One can use the various GSA or other government-wide schedules to narrow down firms.

You said you are refering to Parts 14 or 15.

Once in a source selection, price must also be considered as a factor. CICA requires (I have a case in my hotel room in California but I'm in Washington State today) that price be a meaningful factor in every source selection. FAR 15.304 ( c)(1) requires that price be evaluated factor in every source selection. So, unless using some approved pre-qualification procedure, I believe that price must be submitted, evaluated and considered in the selection decision or in a decision to eliminate firms and continue to negotiate with or request further proposals from the remaining firms, using a competitive range procedure.

There are some restrictions, plus case law on qualifications factors that are in effect Responsibility factors but I'm not an expert in that area. I certainly woul;d think that one could use the multi-step advisory process to request and evaluate Organizational Conflict of Interest info for specific supply or services acquisitions.

I have to go to work but will think further on this...

Link to comment
Share on other sites

In thinking a little bit more, if there can be a 2 step IFB process in FAR 14, why couldnt there be a 2 step RFP process under Part 15,? There isn't one that I know of other than the multi-step advisory process. The competitive negotiations statutory language doesnt mention other phased procedures, to my recollection. The multi-step advisory process would seem to work for OCI issues - at least for those who respond to the presolicitation notice.

Link to comment
Share on other sites

Not saying it makes sense, but if it did, I could do a competitive negotiation with 4 Phases (if I could come up with something that make sense) under Part 15. It doesn't have to be the multi-step advisory process.

FAR 15.100 - Source Selection Processes and Techniques - "This subpart describes some of the acquisition processes and techniques that may be used to design competitive acquisition strategies suitable for the specific circumstances of the acquisition". It defines SOME of the processes, but not ALL of the processes.

Then look at FAR 1.102-4(d) - In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.

Just because there is not a FAR 15.10 for the 10 phase source selection process and procedures, I am not kept from issuing a 10 phase solicitation. If I believe it is in the best interests of the Government.

I think that ndean was thinking creatively and within the FAR guidelines here in developing her 3 Phase Source Selection Process. Whether the multi-step advisory process or a 2/3/4/5 phase process, with thoughts on eval criteria and proposal submission requirements, are things that could possibly help out.

The problem with ndean's 3 Phases is I didn't see her eliminating any offerors, or selecting the most highly qualified offerors to proceed to the next Phase, so why have the offerors submit in phases when you are going to look at all of the information anyway? Seems to just draw out the pain rather than resolve it. Hence my 2 Phase suggestion and looking at the construction example at FAR 36.3. However, maybe the multistep advisory process is better...

Link to comment
Share on other sites

ndean, I don't know if you edited your original post to make it clearer, but it now appears to me that you aren't short-listing or pre-qualifying proposers prior to phase 3 receipt of full proposals and price. OK.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...