Can State Government Personnel Be Used on an Evaluation Panel?

[jsprandel]

I have read the discussions on this site concerning using contractors to evaluate proposals - both as voting members and advisory members. However, I was wondering if I can use State Government employees on an evaluation panel? The reason I would want State Government Personnel involved is because the contract is for the benefit of a State Government and they have knowledge specific to the subject matter.

FAR 7.302(a)(1) does say that inherently governmental functions should be performed by Government personnel and I would assume that "Government Personal" means Federal Government Personnel. However, FAR 7.3 is applicable to Contractor versus Government performance and, while State Government personnel might not be "Government Personnel", they are not Contractors either. Likewise, FAR 7.5 Inherently Governmental Functions discusses the use of contractors, so it doesn't quite seem to apply. FAR 37.203 is for advisory and assistance contracts and 37.204 only addresses using other Federal Agencies.

Maybe the answer is that I can use State Government employees as advisors only and not as evaluators? Maybe the evaluation could be conducted by the CO with several advisors or the CO, one or two other Federal employees, and several advisors? I would like to allow the State Government as much input as possible since the contract is to their benefit. Maybe I've already answered my question in this paragraph, but I would be interested in reading the input of other Contracting Professionals on this subject.

[ji20874]

Evaluating technical proposals in a source selection is not an inherently governmental function. See FAR 7.503(d)(8). Even if being a voting member of a selection board is an inherently governmental function (it is), FAR 7.503(a) prohibits using contracts for inherently governmental functions. Using a state government employee as a voting member of a selection board would not be a violation of FAR 7.503(a) unless you obtained those services by contract.

[Guest Vern Edwards]

Warning: This is slightly off topic.

FAR 7.503[c](12)(ii), says that "participating as a voting member on any source selection boards" is an inherently governmental function. It does not say that participating in any capacity is an inherently governmental function. And, as ji20874 has pointed out, FAR 7.503(d)(8) says that "providing technical evaluation" is not an inherently governmental function.

But what about "management" or "cost" evaluation? Can a determination of "inherently governmental" be evaded by judicious application of the label "technical"? Isn't "cost realism" a kind of "technical" evaluation? Is being a voting member of a technical evaluation team an inherently governmental function?

FAR mentions "voting member" only in 7.503[c]. The term is not used elsewhere in FAR. FAR makes no mention of "voting" with reference to source selection, nor is there any requirement in FAR that evaluators vote on anything or reach a consensus on anything, whether by voting or some other method. "Voting member" appears in the FAR supplements of only the Department of the Interior, HHS, HUD, EPA, Nuclear Regulatory Commission, and the Agency for International Development, but two of those mentions are with reference to architect-engineer selection procedures under FAR Part 36, not source selection under Part 15.

Why should evaluators vote on anything? Is majority rule a good principle to use in source selection decision making? Would the fact that the evaluators voted for this or that rating, strength, weakness, or deficiency be a defense in a protest if the vote was based on errors of fact or reasoning in the evaluation? Do votes bind the SSA to anything? Who needs voting?

All-in-all, the "inherently governmental" restriction in FAR 7.302(1) and 7.503[c](12)(ii) does not strike me as much of a restriction.

I think FAR 37.203(d) is the more important restriction on the use of contractors. The restriction applies to the use of contractors only if they are paid. You can't use them "to conduct evaluations or analyses of any aspect of a proposal submitted for an initial contract." (What does "initial" contract mean?) It's okay to use contractors if (1) government personnel are not available, (2) the contractor is an FFRDC under a contractor covered by FAR 35.017-3, or (3) the work is otherwise authorized.

[apsofacto]

I recommend using them as advisors if you use them at all. They come from a different acquisition environment and may have bizarre ideas in their heads about how your process works. You can still benefit from their perspective while minimizing any mayhem they can cause.

WARNING: I may be projecting my problems on to you.

[joel hoffman]

I found the use of USAF Installation operating contractor professional engineers as technical advisors on complex construction and design-build contracts to be extremely valuable. These guys had been at the Base for years. Now that most, if not all, Installations have contracted out Base Civil Engineering functions, there is a need for continuity and background knowledge. Arnold Air Force Base, in particular, has advanced rocket and jet engine testing and development facilities that include wind tunnels as well as the central facilities that generate and transmit the testing air supplies. These are the technical experts that the Air Force relies on to keep these systems running. The were highly professional, not bizarre - and they didt concern themselves with our acquisition systems - only the technical aspects of the proposals.

And we successfully used contracted professional estimators, using task orders, as advisors on the cost evaluation teams for extremely large, complex design-build projects that involved industrial processes and process equipment (Chemical Weapons Destruction Facilities).