Evaluations under FAR 8.4

[anonco]

I am in the process of drafting a solicitation for services, and I intend to solicit under FAR 8.4. The estimated value is $8 million over 5 years. My agency handbook requires the use of "strengths, weaknesses, significant weaknesses, and deficiencies" in the evaluation plan. I have always been taught that if it looks and smells like FAR 15, you will be held to FAR 15 standards, so I am hesitant to follow the handbook. It also states that the KO must make a statement regarding the relative importance of price to non-price factors (again, a requirement of FAR 15). Lastly, it states that the KO must state the relative importance of the evaluation factors.

I realize that this is an $8 million requirement, and I do intent to award best value through trade offs. Am I wrong in my belief that acquisitions under FAR 8.4 are not supposed to require formal source selection? Am I trying to over simplify the process?

[DingoesAteMyBaby]

So I made the mistake one too many times of conducting a FAR Part 8 procurement like a FAR Part 15 best value, tradeoff. When it comes to FAR Part 8, what I have learned is that if it contains the steps and complexities of FAR Part 15 then it is subject to the same requirements of FAR Part 15.

As difficult as it may be to force a more simplified source selection, I highly suggest that you make it LPTA with as streamlined criteria as you can in order to still have a valid outcome.

[C Culham]

Per your quote “My agency handbook requires the use of "strengths, weaknesses, significant weaknesses, and deficiencies" in the evaluation plan.” I want to pose a thought that you may or may not want to pursue.

One might be able to suggest in the evaluation plan that the agency handbook should not be applicable to a FAR 8.4 procurement unless the requirement you quote has met the standard of an allowed deviation to the FAR otherwise one could conclude that the direction of the handbook is inconsistent with the FAR regarding FAR 8.4 procurements.

REF: FAR 8.404(a) (a) General. Parts 13 (except 13.303-2©(3)), 14, 15, and 19 (except for the requirement at 19.202-1(e)(1)(iii)) do not apply to BPAs or orders placed against Federal Supply Schedules contracts (but see 8.405-5).

[Guest Vern Edwards]

Am I wrong in my belief that acquisitions under FAR 8.4 are not supposed to require formal source selection? Am I trying to over simplify the process?

No, you are not wrong about the application of what you call "formal source selection", and no you are not trying to oversimplify. "Source selection" procedures are prescribed in FAR Subpart 15.3, entitled, "Source Selection". Now see FAR 8.404(a):

Parts 13 (except 13.303-2( c )(3)), 14, 15, and 19 (except for the requirement at 19.202-1(e)(1)(iii)) do not apply to BPAs or orders placed against Federal Supply Schedules contracts (but see 8.405-5).

FAR 8.405-5 pertains to small business programs.

Merely requiring that an evaluation take note of "strengths, weaknesses, significant weaknesses, and deficiencies" does not constitute application of FAR Part 15 source selection procedures. On the other hand, disclosing the relative importance of evaluation factors is a Part 15 requirement and is not necessary when using the procedures in FAR Subpart 8.4. Doing so will bind you to that disclosure, but probably is not enough, in and of itself, to result in across-the-board application of FAR Part 15 rules by a protest tribunal.

By the way, the term "formal source selection" is not used in the FAR. The only place it is used in the FAR System is in the Department of the Interior FAR supplement, and that is a holdover of obsolete terminology. It's just: source selection.

[C Culham]

anonco -

As an afterthought to my post I think it would have also been helpful to post the following references (as links).

http://www.gsa.gov/portal/content/199145

http://www.gsa.gov/portal/content/199205

Each time I read a post regarding FSS orders I am reminded, but forgetful in passing on that the rules for a FSS are just like they are for IDIQ contracts in most cases. That is the 4 corners of the contract dictate the process for ordering and not a whole bunch of other stuff from the FAR. The exception is for FSS in that rather than GSA requiring every agency to read all the terms and conditions of every FSS contract they have set a standard if you will through FAR 8.4 as to how agency’s are to order against FSS. They supplement FAR 8.4 information with further help, which are the links I have provided above.

Regarding use of FAR 8.4 and by further example consider the following that supports the use of FAR 8.4.

Here is a portion of a SOW from a FSS –

“ORDERING PROCEDURES FOR SERVICES:

Orders placed against a GSA Multiple Award Schedule (MAS) contract, using the procedures under Federal Acquisition Regulation (FAR) 8.4, are considered to be issued under full and open competition (see FAR 6.102(d)(3)). Ordering offices do not need to seek further competition, synopsize the requirement, or make a separate determination of fair and reasonable pricing. By placing an order against a GSA Schedule contract using the procedures in this section, the ordering office has concluded that the order represents the best value and results in the lowest overall cost alternative to meet the government's needs.”

Contractors are instructed in their individual FSS contract as well to reference FAR 8.4 with regard to ordering in their price lists that they publish.

Further here is the clause 52.216-18 from the same FSS that contains the above SOW.

“52.216-18 ORDERING (OCT 1995) (DEVIATION II -- FEB 2007)

(a) Any supplies and services to be furnished under this contract shall be ordered by issuance of

delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders

may be issued from Date of Award through Contract expiration date.

( All delivery orders or task orders are subject to the terms and conditions of this contract. In the

event of conflict between a delivery order or task order and this contract, the contract shall control.

© If mailed, a delivery order or task order is considered “issued” when the ordering activity deposits

the order in the mail. Orders may be issued orally, by facsimile, or by electronic commerce methods

only if authorized in the Schedule.”

[anonco]

DingoesAteMyBaby - I tried to think of any way possible to evaluate on an LPTA, but I couldn't think of a way to evaluate services on a "technically acceptable" basis. Typically, when I evaluate on LPTA basis, my criteria are pass/fail and apply moreso to commodities. With services, I have to evaluate the labor mix. This effort is for management support services, so for the technical evaluation, I'm not even sure what I want them to submit. I know I need to look at the labor mix to ensure an understanding of the requirement, but I don't know what other discriminating factor I would look at.

Is it possible to evaluate LPTA when you're subjectively evaluating the labor mix, which is required by FAR 8.4?

C Culham - This evaluation plan is in Part 8 of our handbook, meaning that my agency drafted this plan specifically for the use of FAR 8 acquisitions.

[Guest Vern Edwards]

You're not sure what you want them to submit; you're not sure how to evaluate on an LPTA basis; but you want to evaluate their understanding of the requirement? Do you understand the requirement? Seriously.

[anonco]

Vern - Yes. We are looking for a contractor to answer phones, handle mail, etc. We will evaluate past performance and experience. The COR wants to look at Key Personnel (program manager), but the COR doesn't know what to request from the contractor in order to evaluate quotes for technical acceptability. Other than evaluating the labor mix, I am also at a loss. Seriously. Do I really want them to explain to us HOW they plan to answer the phone and HOW they plan to handle the mail? What discriminating factors do I really have to work with?

[Guest Vern Edwards]

You want clerical services. "Management support services" sounds like an attempt to make the acquisition sound more complex than it really is.

Technical acceptability could be based on meeting key personnel requirements for the company's onsite manager. Treat company experience and past performance as responsibility factors. Specify minimum experience in terms of number of contracts managed within the past five years that employed similar personnel in similar numbers doing similar work.

How many phones do you have and how much mail do you get? Should be no big mystery about labor content and mix. Why not specify the content and mix, then evaluate on low price? If the contract will extend into next year, remind competitors about the president's minimum wage executive order.

Once upon a time a contract like that would have been awarded using sealed bidding.

[anonco]

Vern: "Technical acceptability could be based on meeting key personnel requirements for the contract manager and on company experience and past performance." Does this mean that the contractor simply needs to propose a contract manager, but we will not actually evaluate their skills, ability, resume? If we do a subjective evaluation, doesn't that more closely resemble trade offs? Am I too black and white in my view of LPTA? I have always viewed LPTA to be synonamous with pass/fail, and I didn't know to evaluate this on a pass/fail basis.

I should have prefaced this thred with the fact that I don't deal with services, except on rare occasions.

"Why not specify the content and mix?" The SOW outlines the approximate volume of mail and calls and also tells them what hours we need the coverage. I initially thought we should not give them the "mix" because having them propose the labor disclipine and number of hours would show that they understand the requirement. If we give them the "mix" (I assume you mean labor disclipine and number of hours by task), I suppose there is less of a need to ensure they have an understanding of the requirement. since we are spelling it out for them.

Is it even possible to evaluate PP and experience when evaluating LPTA? Should it even be necessary when the contractor will have been vetted through the MAS award process and the services are so basic?

[Guest Vern Edwards]

If you specify key personnel qualification requirements, then all should have to do is check to see if proposed key personnel meet those requirements, pass or fail, acceptable or unacceptable. When using LPTA you can determine acceptability subjectively. Subjectivity does not necessarily involve tradeoffs and tradeoffs do not necessarily involve subjectivity.

If you know how much mail you get and how many calls, or approximately, why not simply say how many mail clerks and phone answerers you want and what hours you want them to work? That's what you'd have to do if hiring in-house. Why make the competitors guess?

Under LPTA, past performance and experience should be handled as responsibility-type factors, rather than matters of technical acceptability. The GAO has ruled that evaluating such factors on a pass/fail basis is tantamount to a determination of non-responsibility. It doesn't matter much with respect to large businesses, but if the apparently successful competitor is a small business it might trigger the certificate of competency procedure.

Okay, time to move on. No point in trying to do a tutorial in this forum. If you don't already understand what I'm talking about you probably won't be able to persuade anyone to let you do it my way.

Best of luck to you.

[MICHIGANKO]

Anonco -

Call center and mail processing services are readily available in the commercial market. As a current KO who works almost exclusively in services contracting, I can tell you that your situation is all too familiar. Take a step back and look at your requirement. I would suggest performing market research of commercially available mail service and call centers. How do they advertise their services? By volume? By response time? By available personnel? By the hour? You stated that you can quantify the average call rate and mail volume. I assume from your $8M / 5 Year statement, that you have an IGCE based on some historical manpower formula. With that much information to start, I agree with the other respondents that some form of LPTA is most appropriate.

If an Offeror has a good track record of providing similar services, and proposes an approach which will reasonably meet your minimum technical requirements (e.g. All mail distributed within X hours of receipt; or contractor responsible for processing 98% of outgoing / incoming mail [measured daily, weekly, monthly]; or contractor required to processes a min. of 50 pieces of correspondence per hour for all regular work hours; or All calls answered and forwarded within 2 minutes of receipt; or no more than 2 calls unanswered per hour; or 98% of calls received during regular hours (7AM - 5PM) answered, forwarded, and logged [measured daily, weekly, monthly]), then I would recommend that you leave it up to industry to propose whatever manning strategy they create to meet your need.

Looking at key personnel for this type of effort is out of line with the subject matter. A private company procuring call center services certainly would not ask for the resumes of the people answering the phones. Reading between the lines, when the COR wants to look at the qualifications of the key personnel, what I perceive this to mean is that you are looking at whether the proposed new people will measure up to Mary, who has answered the phones for the past 3 years, or Bob and his nephew Billy, who are quick to get your FedEx packages out when you're in a rush, or Russ, who has successfully managed the Program, and always has a good story to tell when he drops in. Don't get suckered into looking at key personnel, or performing a best value trade-off for clerical services.

Of course there is at least one fatal flaw in my line of reasoning. That being where the requiring office is interested in "BITS" (Butts In The Seats), as opposed to volume of mail delivered, or calls received and logged, or call issues resolved, etc... If you are in a BITS situation, you can still successfully employ an LPTA approach. As suggested above, give the Offerors the Labor mix, work schedule, etc.... This is an inefficient way to contract, raises personal services issues, and gives industry no incentive to be creative in designing an approach to meet your requirement, however, it can be done by simply evaluating corporate experience, or qualifications of key personnel (or both) against Government designated minimum qualifications.

In services contracting, you will always be afforded another opportunity to deal with a difficult requirement, whether it be based upon a poorly defined scope, lack of identifiable performance metrics, or based upon the customer's desire to shape the procurement to the contractor they are comfortable with. When you get a requirement for services readily available in the commercial market, with identifiable performance standards, measurable data on the required output, and which lends itself to Firm-Fixed-Pricing, you owe it to the taxpayer to produce a high quality result. Don't perform a trade-off because the handbook states so; don't evaluate key personnel because the COR wants to; don't just put butts in the seats because it takes less work then drafting quality performance metrics.

Right now there is a contractor out there that can handle all your calls and mail with less people than you are estimating, and for less money than you have budgeted. How are you going to find them, and how is your procurement going to offer them the opportunity to propose their approach?

[Weno2]

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[formerfed]

Excellent post and advice Michiganko! Your suggestion about conducting market research and understanding the industry is a good idae.

The problem about using LPTA is past performance doesn't get considered except on a pass/fail basis. It's too difficult to eliminate a source with marginal past performance that way. I would minimally do a tradeoff considering past performace as well as price.

Since the question came up about use of FAR 8.4, there are several possible ways to do this simply and quick. One is just simply state your outcomes - telephones answered properly and mail delivered on time. Define what you mean by that. Ask companies to submit quotes with their technical approach to achieve those outcomes over the life. The stated evaluation factors are technical approach to achieve intended outcomes, past performance, and price. Simply review the responses and succinctly describe the benefits and stengths/weaknesses. Evaluate past performance. Then consider price and make a decision.

Also understand who the sources are you want to consider in advance. Solicit enough to ensure three responses. You don't need to post to every company on Schedule using eBuy.

The problem is GSA makes Schedules easy to use and everyone wants to complicate it.