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Task Order evaluations under multiple award IDIQ

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Our agency is getting ready to issue a solicitation for a multiple award IDIQ for services. The evaluation factors for the IDIQ are technical, past performance, and cost. We are having a debate with our attorney on the evaluation factors for the task orders themselves. Our customer wants technical, personnel qualifications and cost while our attorney insists that past performance MUST be an evaluation factor for the task orders. The task orders will be mainly cost reimbursement (although we have the option for T&M and FP), and will be on a best value/trade off process. I have two questions: 1) do we have to include PP as an evaluation factor for the task orders and 2) if we do - how is it any different than the PP we do at the IDIQ level? Thanks!

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Our agency is getting ready to issue a solicitation for a multiple award IDIQ for services. The evaluation factors for the IDIQ are technical, past performance, and cost. We are having a debate with our attorney on the evaluation factors for the task orders themselves. Our customer wants technical, personnel qualifications and cost while our attorney insists that past performance MUST be an evaluation factor for the task orders. The task orders will be mainly cost reimbursement (although we have the option for T&M and FP), and will be on a best value/trade off process. I have two questions: 1) do we have to include PP as an evaluation factor for the task orders and 2) if we do - how is it any different than the PP we do at the IDIQ level? Thanks!

1. No.

2. N/A.

FAR 16.505( b )(1)( v ) states:

The contracting officer should consider the following when developing the procedures:

( A )(1) Past performance on earlier orders under the contract, including quality, timeliness and cost control.

FAR 2.101 defines "should" as follows:

“Should” means an expected course of action or policy that is to be followed unless inappropriate for a particular circumstance.

So, you don't have to use PP as an evaluation factor.

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Agree with Don, it's not required but,

If we're talking initial task orders to be awarded with the IDIQ it may make sense to evaluate the past performance of those firm TO requirements or at least wrap that in as part of your IDIQ PP evaluation. Why? For the initial TOs, you won't have any prior performance under the IDIQ and IDIQ service requirements are by their nature vague and nondescript; in turn, your IDIQ PP eval may not be meaningful. You may get a better sense of an offerors abitlity to perform by evaluating past performance on actual requirements. For future TOs, you should have prior performance under the IDIQ to evaluate so this may not be an issue but for now I would consider including a PP eval on the initial TOs; at a minimum, somehow tying that eval in as part of your IDIQ PP eval. You could kill 2 birds with 1 stone and get a meaningful past performance eval out of it. It really all depends on how you've drafted you IDIQ past performance eval criteria and requirements.

Did the attorney provide rationale?

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Thanks everyone. No, the attorney did not provide rationale. Everything I'm getting refers to 16.505 (B ), etc (which states SHOULD not SHALL) and "best practices". We intend to award the majority of our task orders immediately after the IDIQs are awarded (hence my question on the difference between the task order PP and the IDIQ PP). I agree that if we award some down the road (after we have performance data on the initial orders), then it might make sense.

Just as an FYI - we are doing a very intensive PP eval at the IDIQ level (questionaries' sent in by the offerors, Gov't pulling PPIRS, and rating based on relevancy and recency).

We'll see how it goes pushing back on the attorney!

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Thanks everyone. No, the attorney did not provide rationale. Everything I'm getting refers to 16.505 (B ), etc (which states SHOULD not SHALL) and "best practices". We intend to award the majority of our task orders immediately after the IDIQs are awarded (hence my question on the difference between the task order PP and the IDIQ PP). I agree that if we award some down the road (after we have performance data on the initial orders), then it might make sense.

Just as an FYI - we are doing a very intensive PP eval at the IDIQ level (questionaries' sent in by the offerors, Gov't pulling PPIRS, and rating based on relevancy and recency).

We'll see how it goes pushing back on the attorney!

There is absolutely no reason to re-evaluate PP on non-task orders in the ID/iQ task order competitions immediately after award. That's what you did to determine that these firms are qualified to be in the pool(s) in the first place. And it is apparently too early to evaluate task order performance.

So challenge the attorney to justify their position. If you are debating wording to put in the base contract solicitation concerning task order competitions, then simply say that the government may include consideration of past performance on other contracts and completed or on-going task orders

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Thanks everyone. No, the attorney did not provide rationale. Everything I'm getting refers to 16.505 (B ), etc (which states SHOULD not SHALL) and "best practices". We intend to award the majority of our task orders immediately after the IDIQs are awarded (hence my question on the difference between the task order PP and the IDIQ PP). I agree that if we award some down the road (after we have performance data on the initial orders), then it might make sense.

Just as an FYI - we are doing a very intensive PP eval at the IDIQ level (questionaries' sent in by the offerors, Gov't pulling PPIRS, and rating based on relevancy and recency).

We'll see how it goes pushing back on the attorney!

Why do you have to "push back" on the attorney? He/she gave advice. If you think it was bad advice, don't take it.

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Our customer wants technical, personnel qualifications and cost while our attorney insists that past performance MUST be an evaluation factor for the task orders. The task orders will be mainly cost reimbursement (although we have the option for T&M and FP), and will be on a best value/trade off process. I have two questions: 1) do we have to include PP as an evaluation factor for the task orders and 2) if we do - how is it any different than the PP we do at the IDIQ level? Thanks!

Maureen:

When an attorney, or anyone else at work, except your boss, tells you that you must do something or must not do something, ALWAYS demand the legal rationale for that assertion. If they cannot or will not give it to you, or if they give it to you and any of their premises turns out to be untrue, tell them to their face that you reject their opinion as unfounded and will disregard it. If they decide to make an issue out of it, tell them that you will make an issue of the credibility and value of their opinions.

I would have handed that lawyer a copy of the FAR and said: Show me.

Now, Don quoted FAR 16.505( b )(1)(v):

The Contracting Officer should consider the following when developing the procedures: (A)(1) Past performance on earlier orders....

Emphasizing "should", he concluded that you do not have to evaluate past performance.

Do yourself a favor: go to FAR 2.101, look up the definition of "should", and consider the implications.

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There is no need to argue with the lawyer or to debate the difference between "should" and "shall".

Lisa said:

Thanks everyone. No, the attorney did not provide rationale. Everything I'm getting refers to 16.505 (B ), etc (which states SHOULD not SHALL) and "best practices". We intend to award the majority of our task orders immediately after the IDIQs are awarded (hence my question on the difference between the task order PP and the IDIQ PP). I agree that if we award some down the road (after we have performance data on the initial orders), then it might make sense. Just as an FYI - we are doing a very intensive PP eval at the IDIQ level (questionaries' sent in by the offerors, Gov't pulling PPIRS, and rating based on relevancy and recency).We'll see how it goes pushing back on the attorney!

So now we know at least four things:

1. Lisa will order the majority of the orders immediately after the initial ID/IQ award

2. At this point, it will not be possible for "(t)he contracting officer [to] consider the following when developing the procedures: (A) (1) Past performance on earlier orders under the contract, including quality, timeliness and cost control" (i.e., the KO has considered and determined that it isn't feasible to evaluate pp on orders at this point).

3. It might be possible for th KO to consider past performance on earlier orders under the contract for later orders.

4. Lisa "agrees that if [they] award some down the road (after [they] have performance data on the initial orders), then it might make sense."

In addition, nothing in 16.505 ( b ) (1) ( v ) says that the KO must consider the "very intensive PP evaluation at the IDIQ level". However, she could include that as a consideration for the first orders if she feels that such would be a good discriminator between the pool awardees. However, why over complicate the ordering process if you don't have to.

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What would be the point of awarding IDIQ contracts to multiple awardees among which past performance would be a good discriminator prior to issuance of the first orders?

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What would be the point of awarding IDIQ contracts to multiple awardees among which past performance would be a good discriminator prior to issuance of the first orders?

Probably none but only they would know for sure. At any rate, it doesn't appear to be part of Lisa's lawyer's argument and has nothing to do with the 16.505 ( b ) considerations for task order competitions.

My main points:

1. all she has to say is that she considered Past performance of task orders under the contract and has concluded that there is no past performance for the first wave of task orders because they have yet to be awarded/performed.

2. she is open to such considerations for future task orders.

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