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Our organization has several multi-year knowledge based service contracts where continuity of service and retention of professional personnel is a concern. How do we solicit for a follow-on contractor in a very competitive marketplace and encourage potential offerors to begin recruiting incumbent personnel during the evaluation period. We mostly use Cost Type and award based on Best Value. Are we permitted to score the staffing plan based on a % retention of incumbent personnel. How would this get verified? I don't think it would be right to justify not competing these, but we continue to see new contractors that propose lower wages than the incumbents are earning.

I read the responses on the Topic - "Are we encouraging the Poaching of Employees", and I am curious how other organizations encourage potential offerors to hire incumbent exempt personnel.

In the old days company's used to open offices in the locality and accept resume's - now with internet I'm sure this is done a lot

Thank You

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See FAR Subpart 22.11, Professional Employee Compensation. It will tell you everything you need to know. That's my official answer.

If your agency intention is to select the offer that provides the most incumbent employees, and you're willing to pay a higher price for more incumbent retention, I recommend you say so in your solicitation. If your primary concern is keeping the incumbent employees, rather than getting the best value, then you should say so in the solicitation. Of course, your reviewers and attorneys might be concerned with the approach, and rightly so, because the FAR suggests you're supposed to be trying to get the best value.

For any offeror not proposing to provide many incumbent employees, and with a lower price, you can assess that offer adversely for indicating unrealistically low professional employee compensation as one of the factors for award. See FAR 22.1103.

There are other ways to structure the acquisition so that the offer who provides the most incumbent employees will be selected as the best value, without saying so outloud. For example, you could evaluate the offeror's understanding of the requirement and so forth.

But having said all this, I think you should severely question the intention to select the offer that provides the most incumbent employees.

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DOECPA:

If your current contracts don't include 52.237-3, make sure your new contract( s ) do.

Might be able to modify your current contracts to include it now.

If best value is obtained by maintaining key personnel, justify it and put it in your solicitation. Don't be a shyster.

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DOECPA, how do you know that the companies offering lower wages than the incumbent contractor cannot do as good or better job than the incumbent? This idea seems to be prevalent in many agencies who are adverse to letting a new contractor do the work that has been performed by one contractor for a number of years. The employees of other contractors may very well be more capable than those of the incumbent even if they are being paid a lower wage.

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BLUF: If the requirement is performance based and non-personal services, then it is ultimately the contractor's determination how to sufficiently staff to meet the performance standards.

Under 52.222-17 the new contractor is required to offer first refusal to incumbent employees. The new contractor does not have to offer the same compensation or benefits as their current employer. Ultimately it is the choice of the individual employee whether to be hired by the new contractor.

I had one instance where the incumbent contractor was not the LPTA offeror when the requirement was resolicitated. The incumbent contractor sent me an e-mail and stated that if his company was not chosen, all of his employees would walk off the job. The new contractor acted IAW 52.222-17 and not one single employee left. All experience was retained and it was a smooth transition.

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Guest Vern Edwards
If the requirement is performance based and non-personal services, then it is ultimately the contractor's determination how to sufficiently staff to meet the performance standards.

The notion of a performance-based "knowledge based" service contract is truly, deeply stupid. :lol:

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The provision at FAR 52.222-17 doesn't apply to professional employees.

However, the provision at FAR 52.222-46 does apply to professional employees, as prescribed in FAR Subpart 22.11, Professional Employee Compensation.

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Vern - I sure hope your response to my post is that the notion is "truly, deeply stupid" and that you are not saying that I am "truly, deeply stupid." I did not combine the terms performance-based and knowledge-based in my post. I am a bit confused by your response. Would you please elaborate on your post?

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Guest Vern Edwards

leo1102:

I was referring to exactly what I said I was referring to: "the notion" of such a thing as a performance-based knowledge based contract. I was not referring to you personally. I do not think that you are truly deeply stupid. I'm sorry you thought that I might.

To elaborate, in Post #1 DOECPA said he had several "knowledge based" contracts. In Post #5 you said, "BLUF: [bottom Line Up Front] If the requirement is performance based and non-personal services, then it is ultimately the contractor's determination how to sufficiently staff to meet the performance standards. "

I assumed that you were commenting on DOECPA'a post. If so, then you were alluding to some notion of a performance-based knowledge based contract. Hence, my comment. Were you not commenting on DOECPA's post?

I assume that you, like JMG, agree that the notion of a performance-based knowledge based contract is truly deeply stupid, so I presume that you are not asking me to elaborate about that.

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Can someone elaborate on the notion of a A&AS (knowledge based service) PBSA being truly and deeply stupid?

Wouldn't a contract for a specialized attorney fall under all of these categories and not be truly and deeply stupid?

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Guest Vern Edwards
Can someone elaborate on the notion of a A&AS (knowledge based service) PBSA being truly and deeply stupid?

"Performance-based acquisition" (or performance-based contracting or performance-based service contracting) entails the specification of desired result instead of performance process and quality assurance based on delivered result. See FAR 2.101 and 37.602(1). See also Guidebook for Performance-Based Services Acquisition in the Department of Defense (December 2000), p. iii:

Contractor performance assessments (the process known as “quality assurance”) should focus on outcomes rather than on contractor processes. Focus on insight [sic] of the contractor performance, not oversight.

http://www.acq.osd.mil/dpap/Docs/pbsaguide010201.pdf

There is no definition of the term "knowledge based services" in FAR, but the Defense Acquisition University defines it as follows:

Knowledge Based Services, commonly referred to as Advisory and Assistance Services (A&AS), relates to tasks that require the application of detailed processes or technical knowledge.

A&AS pertains to the details provided under contract by nongovernmental sources to support or improve organizational policy development, decision-making, management and administration, program and/or project management and administration, or research and development (R&D) activities. It can also involve the furnishing of professional advice or assistance rendered to improve the effectiveness of Federal management processes or procedures, including those of an engineering and technical nature. The result of these services may take the form of information, advice, opinions, alternatives, analysis, evaluations, recommendations, training, and the day-to-day aid of support personnel needed for the successful performance of ongoing Federal operations.

http://sam.dau.mil/Content.aspx?currentContentID=knowledge_based_services See the definition of advisory and assistance services in FAR 2.101 and FAR Subpart 37.2.

Suppose that you contract with someone to research something for you and report their factual findings. Their findings are the performance result. But the quality of that result cannot be judged based on their own attributes. You cannot tell if the findings are any good based on the report of them. The quality of the findings must be judged on the basis of the processes that were used to reach them. If someone tells you that smoking causes cancer, you should want to know what process they used to reach that conclusion, whether that process is sound, and whether it was executed properly.

Now, let's say that you give someone someone else's findings and ask tor his or her conclusions and advice about something based on those findings. Their conclusions and advice are the performance results. But the quality the conclusions and advice cannot be judged based on what they are, as stated in the memo that you get. You cannot tell if they are any good based on the report. (And you cannot judge them on the basis of your agreement or disagreement. If your own opinion is to be the standard of judgement, then why did you bother asking for their conclusions and advice?) The quality of their conclusions and advice must be judged on the basis of the process used to reach those conclusions.

Don't confuse the quality of a research report or of a memo of conclusions and advice with the qualify of the content of the research findings or of the conclusions and advice given. The report or memo may be well-written, but the findings may be false or the conclusions and advice unsound. On the other hand, the report or memo may be poorly written, but the findings true or the conclusions and advice sound.

Presumably, you would hire a specialized attorney to analyze a legal problem and provide you with deductions and advice. For the reasons given above, you cannot judge the quality of the attorney's conclusions and advice based on their content or on the quality of the document in which they are conveyed to you. You must judge them based on the process the attorney used to produce them. Alternatively, you can judge them based on the attorney's reputation.

It should be apparent to anyone who knows what they are that performance-based service contracting and knowledge based service contracting are antithetical, whether the knowledge is logical, semantic, systemic, or empirical. Perhaps I should have said that the notion of a performance-based "knowledge based" contracting is based on true and deep ignorance instead of saying that it was truly and deeply stupid.

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