Can the CO award to an Offeror that has a "marginal" subfactor rating

[anonymous55]

I am involved with an RFP for a FFP construction contract that has three technical factors, two of which have sub-factors. Our office ranks each factor and sub-factor of the technical proposals using an adjective rating system: Exceptional, Acceptable, Neutral (only used of past-performance), Marginal and Unacceptable

My question is, can the CO make an award to an offeror if their proposal has one technical sub-factor ranked as "marginal" as opposed to being either "acceptable" or "exceptional" when the overall rating for that proposal is "acceptable"? People in our office have different opinion regarding this. Some think that it is necessary to enter into discussions with that offeror to address the "marginal" sub-factor and others say that it would be in the Government's best interest (in this case from a time standpoint) to make an award without discussions regardless of the one "marginal" rating.

From reading Part 15 of the FAR I was not able to come to any conclusion on this. Thanks for you help.

[joel hoffman]

I assume that the RFP or your internal rating system defines the term "marginal". You did not explain what the marginal rating of the sub factor means. My question to you would be does the proposal meet the minimum solicitation requirements? In other words, does it conform to the minimum RFP requirements? Also - did you intend to say above that the factor which includes the sub factor in question is rated "acceptable"?

With respect to the "time" debate, unless there are some ridiculous procedural requirements in your organization, I would think that it would only add 1-2 weeks to the schedule to conduct discussions, obtain revised proposals and re-evaluate them. I have done it within five to seven working days but it depends upon the number of firms to be included in the competitive range and the extent and complexity of the items to be discussed. The decision about whether or not to try to improve the proposal before award should also consider the nature of the marginal feature. As a contract administrator I always hated those decisions to "let the field fix the problem after award". How would that be in the governments best interest if that is part of the argument to award without discussions?

[ji20874]

YES -- a contracting officer or source selection authority can select an offeror with a MARGINAL rating for one of the evaluation subfactors. It's a best value decision.

MARGINAL and UNACCEPTABLE are different. Let me say that again in other words -- MARGINAL is not UNACCEPTABLE. One more time -- MARGINAL and UNACCEPTABLE are not the same.

If an offeror's evaluation results in a MARGINAL rating for one subfactor, and outstanding ratings everywhere else, and the price is excellent, the contracting officer or source selection authority could decide that the risk associated with the MARGINAL is bearable in light of the balancing positive features of the offer. That's why it's called a trade-off or best value. Of course, you could select the offeror with the MARGINAL subfactor rating, if you wanted to.

I am assuming the definition for MARGINAL in the source selection plan, if such document exists, bears some proximity to the definition of MARGINAL in a dictionary.

You cannot select an UNACCCEPTABLE offer for award without first holding discussions to make the UNACCEPTABLE go away. However, you may select a MARGINAL offer for award without discussions in either a LPTA or a trade-off situation. You may hold discussions if that's what the facts of your case point to, and sometimes the particular facts will suggest you really should, but in general principle you should not feel that a MARGINAL rating must always result in discussions or disqualification.

Here. we don't know your particular facts. I hope this is helpful.

[Guest Vern Edwards]

ji20874:

Your last comments about "marginal" versus "unacceptable" are no good. Rarely if ever have agencies defined marginal as in a dictionary. Based on my experience, which is extensive, agengies commonly define marginal as something that is not acceptable, but that can be made acceptable through discussions. The difference between marginal and unacceptable is usually amatter of how far short the proposal falls with respect to the requirements of the solicitation. Consider the definition of marginal in the DOD source selection procedures: "Proposal does not clearly meet requirements and has not demonstrated an adequaate approach...." And consider this one, quoted in SelectTech Corp., GAO B-229851, 88-1 CPD para. 375: "[D]oes not meet minimum requirements, but clarifying or supplemental information could make the proposal meet minimum requirements." A CO could not defend award of a contract based on such a proposal.

It is not how agencies rate the proposal that counts. What counts are the attributes of the proposal. They are what determine whether a CO is permitted to accept it. The only sound answer to the question of whether or not a CO can award a contract to an offeror with a "marginal" rating is that it depends on (1) whether the proposal satifies all of the substantive terms of the solicitation, (2) whether its price is fair and reasonable, and (3) how it stands with respect to other proposals under the evaluation factors. You cannot validly answer the question with a yes or no, and it is dangerously misleading to do so.

[ji20874]

Vern,

I understand there is some sloppiness in definitions, and I have seen solicitations where marginal is defined as you describe -- "agencies commonly define marginal as something that is not acceptable, but that can be made acceptable through discussions" -- I wish they didn't do that, because they are saying that MARGINAL is UNACCEPTABLE. I never do that. That's why I wrote, "I am assuming the definition for MARGINAL in the source selection plan, if such document exists, bears some proximity to the definition of MARGINAL in a dictionary." I always write my own definition of MARGINAL.

But if MARGINAL in the original poster's acquisition really means UNACCEPTABLE, according to that acquisition's source selection plan or similar document, then a proposal with a MARGINAL subfactor rating cannot be selected for award without discussions.

[Guest Vern Edwards]

The point is that a decision to award or not to award must not be based on ratings but on the facts about the proposals. Ratings are aids to analysis. They are not determinative of the award result.

We should not answer the question asked based on its premise. You should not have answered "Yes", no matter what the definition of marginal.

[joel hoffman]

Vern,

I understand there is some sloppiness in definitions, and I have seen solicitations where marginal is defined as you describe -- "agencies commonly define marginal as something that is not acceptable, but that can be made acceptable through discussions" -- I wish they didn't do that, because they are saying that MARGINAL is UNACCEPTABLE. I never do that. That's why I wrote, "I am assuming the definition for MARGINAL in the source selection plan, if such document exists, bears some proximity to the definition of MARGINAL in a dictionary." I always write my own definition of MARGINAL.

But if MARGINAL in the original poster's acquisition really means UNACCEPTABLE, according to that acquisition's source selection plan or similar document, then a proposal with a MARGINAL subfactor rating cannot be selected for award without discussions.

ji, if you work for the Air Force, then the DoD Source Selection Procedures (see https://acc.dau.mil/docs/dodssp/Source%20selelction%20document%20%283%29.pdf ) supposedly provide for mandatory standardization of rating definitions, including "marginal" ratings for all the Services. Don't you have to comply with the DoD Procedures? How do you always write your own definition of marginal?

When using the combined technical/risk ratings this is one definition of a marginal rating using combined technical and proposal risk rating:

Table 1. Combined Technical/Risk Ratings "...Yellow/ Marginal:Proposal does not clearly meet requirements and has not demonstrated an adequate approach and understanding of the requirements. The proposal has one or more weaknesses which are not offset by strengths. Risk of unsuccessful performance is high."

Here are the definitions with separate technical and technical risk ratings:

"Table 2. Technical Ratings: "...Yellow/Marginal: Proposal does not clearly meet requirements and has not demonstrated an adequate approach and understanding of the requirements."

"Table 3. Technical Risk Ratings:

Rating Description:

Low - Has little potential to cause disruption of schedule, increased cost ordegradation of performance. Normal contractor effort and normal Government monitoring will likely be able to overcome any difficulties.

Moderate -Can potentially cause disruption of schedule, increased cost or degradation of performance. Special contractor emphasis and close Government monitoring will likely be able to overcome difficulties.

High - Is likely to cause significant disruption of schedule, increased cost ordegradation of performance. Is unlikely to overcome any difficulties, even with special contractor emphasis and close Government monitoring."

In addition, the current DoD policy, as expressed in the Procedures, discourages award without discussions. See paragraphs 3.3 "Award without Discussions" and 3.4 "Discussion Procedures".

I agree with Vern in his first two posts above. In addition, I generally disagree with those who think making a quick award without correcting or improving an important aspect** that is weak in a proposal "is in the government's best interest". This has been particularly true for me in construction contracting. Such weaknesses or ambiguities usually come back to bite the government in the butt during performance as described above technical risk rating definitions. The result is often lost time, disruption and/or increased contract cost and contract admin resources and costs. The ACO and its team and/or the KO have to deal with and try to fix the problem at greater effort, cost and extended performance time than if the KO took a little time to resolve it before award. For gosh sakes, when we are using a negotiated acquisition process - we should take full advantage of it! GRRRR!

**If an aspect is important enough to be designated as an evaluated subfactor, it is probably important enough not to ignore and hope it will go away.

[Guest Vern Edwards]

The way that adjectival ratings work is that they name and define ordinal categories, such as excellent, good, acceptable, marginal, and unacceptable. Proposals are rated by comparing their attributes to the category definitions. But category definitions and boundaries are often fuzzy, so that a proposal that is good to one evaluator may be merely acceptable to another. That is one reason why the GAO says to choose the awardee based on its proposal's attributes, not on its rating. Ratings are just analytical aids. They help a decisionmaker size things up initially, before making detailed comparisons. If there is a protest and the decision amaker says she chose Offeror A instead of Offeror B because A had a better rating, that decision maker has a problem, because the GAO and the Court of Federal Claims won't buy it. They want to see documentation of the proposal facts and the comparisons made on the basis of those facts. Moreover, it often happens that decision makers disagree with evaluator ratings, which is okay as long as the decision maker can justify her disagreement based on proposal facts.

To ask if award can be made to an offeror with a marginal rating is a rookie question, which is okay if the person asking is a rookie. But a pro recognizes that the question is based on false premises about ratings, and wouldn't answer the question as asked, yes or no, but would explain in detail based on sound principles.

[ji20874]

I don't work for the Air Force -- I did once, and I learned a lot, but that was a long time ago. If the Air Force rules define marginal as being unacceptable, well, there you go. I'm not sure the original poster works for the Air Force or DoD. He or she doesn't say one way or the other. It all depends on the words in that particular solicitation or source selection plan or evaluation plan or whatever. But I cannot go so far as to say that a MARGINAL rating for a subfactor must always make a proposal unawardable without discussions. Yes, I have awarded without discussions to offerors with marginal ratings, and I have awarded after discussions to offerors who still had marginal ratings. I do not see a marginal rating as an absolute bar to award without discussions, or even as an absolute bar to award.

This definition of a marginal rating has been the subject of some litigation. Vern pointed to one GAO case that supported his approach. There is another case that might be more instructive, and might point to my approach -- in the GAO case B-404479, the GAO said marginal was unacceptable -- the solicitation defined marginal as "A marginal proposal does not meet Government requirements necessary for acceptable contract performance, but issues are correctable" -- the GAO focused on the first part of the definition and said the marginal rating made the proposal unacceptable and unawardable -- but the protester then went to the Court of Federal Claims with the exact same matter in CW Government Travel, Inc., d/b/a CWTSatoTravel v. United States, No. 12-708 C, April 11, 2013, and the court focused on the second part of the definition and decided the GAO's interpretation was inconsistent with the FAR. How about that?

I enjoy robust discussions and appreciate that discussions are a tool to help the Government obtain best value. Here, I'm not advocating for award without discussions. I'm merely pushing back on the notion that a marginal rating must always be considered as unacceptable and unawardable without discussions.

Anonymous, take what I write here with a grain of salt. I'm a rookie, not a pro.

[Guest Vern Edwards]

You're a pro, but sometimes a little too quick on the "Post" button.

[joel hoffman]

Ji, I'm sorry. For some reason I thought that you work for the Air Force.

[anonymous55]

Thank you to everyone who posted to this topic. This has been a valuable discussion for myself and our office. The way our SSP defines "marginal" has similar language to the above quoted DOD reference, therefore it was probably the best decision for us to conduct discussions to resolve the marginal sub-factor. Although, due to this forum, our office has taken a closer look at how we define the term "marginal" in our SSP and might make some revisions for our next RFP solicitation to provide us more flexibility in a similar situation.

Thanks again for your time and insight.

[ji20874]

Upon some reflection, and reading what others have written, I think I might use the MARGINAL rating differently than others -- I generally want the MARGINAL rating to mean marginally ACCEPTABLE, while others tend to see it as marginally UNACCEPTABLE.

[Guest Vern Edwards]

Nothing you say can make sense to the rest of us until you tell us what Acceptable means to you.

Does Acceptable in your scheme of things refer to legal acceptability, is it merely a category of quality, is it both?

In order to be legally acceptable a proposal must manifest the offeror's assent to all of the material terms of the solicitation. See Orion Technology, Inc., GAO Decision B-405077, 2011 CPD ¶ 159.

So in your scheme of things, can a proposal be "Marginal" (marginally acceptable, as you define it) and also legally acceptable? Can it be "Marginal", but legally unacceptable?

[ji20874]

I hope for evaluators to evaluate the quality of the good or service, according to the evaluation factors in the solicitation.

As a contracting officer, I'll make the decision regarding legal acceptability myself. I might make that decision before [without] the technical evaluation, or afterwards [with] the technical evaluation.

Yes, in my scheme of things, a proposal can be of marginal quality and also legally acceptable.

[Guest Vern Edwards]

Okay, so "Acceptable" is a category of quality. And I suppose that Marginal is also a category of quality. So two proposals can be be acceptable, but one can be "fully" (?) acceptable and one can be just barely so.

Can two proposals be Acceptable, but one more Acceptable than the other, without being in a higher category, like "Good"? In other words, can there be degrees of Acceptable?

[ji20874]

If the summary ratings are GOOD, ACCEPTABLE (or SATISFACTORY), MARGINAL, and UNACCEPTABLE, then that's the extent of the choice -- all proposals have to fit somewhere in those bins. But still, two proposals with ACCEPTABLE ratings may easily differ in quality.

I inserted SATISFACTORY above in parentheses -- I don't use ACCEPTABLE as an adjective in my source selections; I prefer to use SATISFACTORY instead.