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Broader Use of Qualifications-Based Source Selection?


Guest Vern Edwards

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Guest Vern Edwards

In Tridentis LLC, B-412539, 2016 CPD ¶ 92, March 18, 2016, the protester complained because the Navy planned to use Brooks Act qualifications-based selection pursuant to FAR Subpart 36.6 procedures instead of FAR Part 15 source selection procedures to acquire marine architecture and engineering services. The protester asserted that the FAR architect-engineer selection procedures are to be used only for acquisitions associated with real property and that the agency had to use FAR Part 15 source selection procedures.

FAR 2.101 defines architect-engineer services in accordance with the Brooks Act, 40 U.S.C. § 1102 2), which reads as follows:

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(2) Architectural and engineering services.—The term “architectural and engineering services” means—

(A) professional services of an architectural or engineering nature, as defined by state law, if applicable, that are required to be performed or approved by a person licensed, registered, or certified to provide the services described in this paragraph;

(B) professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration, or repair of real property; and

(C) other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including studies, investigations, surveying and mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services.

The GAO denied the protest based on paragraph (C) of the statutory definition, explaining as follows:

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subsection “C” of the statute (on which the agency relies) provides a separate, different, and supplemental definition of A-E services that is not tied to any activity associated with real property. It simply defines A-E services as “other professional services of an architectural and engineering nature” that may be performed by members of the architectural and engineering professions, without limitation, 40 U.S.C. § 1102(2)(C). The statute does not identify or enumerate—and indeed is silent about—which architectural and engineering disciplines or professions to which it refers. it also lists a number of generic examples of activities that clearly encompass the activities contemplated under the current solicitation, including performing studies, preparing conceptual designs, preparing plans and specifications, and reviewing drawings. thus, we conclude that the agency reasonably has determined that the disciplines of naval architecture and marine engineering are encompassed by this broad definition, and that the activities for which the agency seeks to contract are included in the list of the activities identified in the statute.

So it appears that an agency can award contracts for any kind of engineering services, and incidental services, using Brooks Act A-E qualification-based selection followed by one-on-one negotiations instead of FAR Part 15 source selection procedures:

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We recognize that agencies typically use Brooks Act procedures to acquire A-E services in connection with the construction of buildings, structures and facilities. We also recognize that there is nothing in the express terms of the Brooks Act or its legislative history that specifically mentions the acquisition of naval architecture and marine engineering services. Nonetheless, agencies enjoy a degree of discretion in deciding, on a case-by-case basis, whether or not the services they are acquiring are A-E services... Where an agency reasonably determines that the services being acquired are A-E services, the requirements of the Brooks Act apply, even where the ultimate object of the acquisition is not the construction of a building, structure or facility.

Thus, an agency can use Brooks Act procedures to acquire aeronautical engineering services or software engineering services. Please note that the hyphenated phrase "architect-engineer" that is used in FAR does not appear in the statute, which uses the phrases "architectural and engineering" and "architectural or engineering."

It has long been said that FAR Part 15 proposal-focused source selection procedures take too long, cost too much, and too often produce bad contracts because agencies do not conduct in-depth discussions before award.

Three questions:

(1) Do you think that Brooks Act qualifications-based procedures followed by one-on-one negotiations with the selectee might be less costly, less time-consuming, and produce better contracts than FAR Part 15 proposal-based source selection procedures?

(2) If your answer to the first question is yes, then what problems would an agency face in making the switch from Part 15 to Brooks Act procedures?

(3) If your answer to the first question is no, then why do you think so?

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1. Although I have no experience with using Brooks Act procedures, I would say yes. The time and effort that it takes to evaluate the cost or price of each offer would be saved. I also think there would be a smaller target for protests, because there's no cost realism analysis done on the offers not selected and there would be no tradeoff analysis.

2. If the agency wanted to do it, they would have to train their workforce on how to use the procedures, prepare for challenges from industry, and prepare for challenges from Congress.  

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(1) Do you think that Brooks Act qualifications-based procedures followed by one-on-one negotiations with the selectee might be less costly, less time-consuming, and produce better contracts than FAR Part 15 proposal-based source selection procedures?

My answer is “Yes” assuming agencies’ management are willing to use the BA procedures and assuming the agencies’ workforces are trained to use them.

I never negotiated a contract using 36.6 procedures, but I used variants when using FAR 8.4 procedures:

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The agency will assess the résumés, experience, past performance, and the price of quotes in accordance with FAR Subpart 8.4. Non-price factors, when combined, are significantly more important than price. After this assessment, the contracting officer may award a contract to the contractor he or she determines to represent the best value, or may obtain additional information from and negotiate with that contractor to improve the terms of the deal reflected in its quote. If the contracting officer is unable to negotiate a favorable deal with the contractor, he or she reserves the right to negotiate and reach agreement with another firm submitting a quote that was not assessed initially to be the best. This process will continue until a contract has been reached or until all those firms submitting a quote have been considered. If agreement on a deal cannot be reached with any of the firms, negotiations may be reopened with all firms or the solicitation may be canceled.

I am not sure that many agencies would use them because the various agencies’ workforces are trained merely to apply procedures to implement a process, not to achieve results. It is my unscientifically proven opinion that the majority of agencies do not seek to negotiate the substance. They seek to conduct only FAR 15.3 type exchanges pertinent to proposal weaknesses and deficiencies.

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(2) If your answer to the first question is yes, then what problems would an agency face in making the switch from Part 15 to Brooks Act procedures?

The biggest problems would arise from the unwillingness and inability of agencies’ managements, supervisors and contract specialists to identify and negotiate good deals. Most agencies would prefer to avoid the exercise of discretion and to expand the scope of automated procurement systems so that they could evaluate proposals, identify compliant proposals, conduct exchanges and make source selections.

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I was intrigued when I read the decision.  I appreciate Vern's inquiry.

On Sunday, May 15, 2016 at 11:05 AM, Vern Edwards said:

(1) Do you think that Brooks Act qualifications-based procedures followed by one-on-one negotiations with the selectee might be less costly, less time-consuming, and produce better contracts than FAR Part 15 proposal-based source selection procedures?

Yes, it might be.  But many times (most times), it probably won't be.  I am an experienced practicioner under FAR Subpart 36.6.  Part of the reason is napolik's observation that our workforce is "trained merely to apply procedures to implement a process, not to achieve results."  Another part of the reason, related to the first and again as napolik suggested, is that agency management (somewhat?  overwhelmingly?) will be unwilling to allow the exercise of discretion and business judgment by contracting officers.  A third part of the reason is that agencies are simply unprepared to operate the qualifications evaluation boards that are going to hold discussions with and rank order the potential contractors in priority order.  However, if all three of these were overcome, then the qualifications-based procedures approach might be less costly, less time-consuming, and produce better results that FAR Part 15.

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Guest Vern Edwards

Some Part 15 protest issues will go away: clarification versus discussion, cost or price realism analysis, relative importance of nonprice versus price, and tradeoff analyses, to name four.

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It's been a long time since I worked on SF 255's but as I dimly recall we (as contractor) never had a problem with source selections that used them. Granted, it tended to be a resume war, but it was a fight that we thought was adjudicated relatively fairly. The only contretemps I can recall was when a competitor stole our retired General and used him against us.

H2H

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Guest Vern Edwards

ji20874:

Suppose that the chief of a contracting office were to come to you and say that he was thinking of using Brooks Act procedures instead of FAR Part 15 procedures to buy engineering services. He doesn't have experience with the A-E selection process and wants some advice. What would you suggest that he do to prepare his office to use Brooks Act procedures successfully? What measures would you suggest that he take? Can you provide a bullet list?

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Try USACE Engineer Pamphlet EP 715-1-7 A-E Contracting.  I will verify that number  

But if you have no idea how to estimate or analyze design processes and costs for A-E services you still will be clueless as to negotiating prices. 

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Yes, that is the publication. And I am clueless, thus rely on my experts these days. 

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Guest Vern Edwards

Army Corps of Engineers publication EP 715-1-7, Architect-Engineer Contracting in USACE, 29 February 2012, 222 pages, covers the entire A-E contracting process, including contract administration. The parts relevant to this discussion are Chapters 3 and 4. Chapter 3 is devoted to the qualifications-based selection process and is only 14 pages long. Chapter 4, which covers post-selection contract negotiation, is only 11 pages long and is pretty much a standard discussion of one-on-one contract price negotiation.

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I echo Don’s comments, noting that I had extensive experience with A-E contracting prior to retirement.  ji's comment raises an important thought in how it could be proven that such a switch would provide the benefits of less cost, less time consumed and result in better contracts?

In an honest attempt to not derail to another contracting topic but to support my answer I offer a process that I believe is similar - 8(a) sole source contracting.   When done right in my view contractor selection is much like A-E in that an agency reviews a portfolio of 8(a) firms and determines what firm might best fit their need.  With firm selected the agency then moves to contract negotiation.   If negotiations look to be unsuccessful then the 8(a) program could force the firm of sorts on the agency but this seems rare with effort pointed at attempts by the 8(a) program to offer an alternative firm to keep the effort 8(a).   Noting this similarity I then offer that as an SBA 8(a) CO in the days that SBA had such positions  I tracked 40 some 8(a) firms and their contract awards and completed contracts over a 1 year period.   I cannot recall the number of awards but believe they numbered close to the number of firms, 40 or so.   For those awards the contract award amount averaged 15%+- above the agencies IGE as revised during negotiations.  Final contract completion amount was 1% +- above the contract award amount.  Yes very unscientific and anecdotal support but by  experiences in both A-E contracting and 8(a) contracting my conclusion has always been that having the ability to select a firm that best fit the need, then discuss and negotiate technical approach and costs leads to a better understanding with regard to contract performance and in the end no need for a bunch of contract modifications.    

So again Yes A-E I believe would be less costly, less time consuming and produce better contracts.  As to problems Don has given the 30,000 foot view but getting into the weeds just a little two thoughts.  Agency training would be needed but would need to be supplemented with knowledgeable mentors who could assist the inexperienced on use of the A-E or equal process.  The other quick thought is how would such an approach interlink with commercial item contracting?

 

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The most important thing to do is to set up the evaluation board (permanent or ad hoc). See FAR 36.602-2 and -3. I'm not sure the chief of the contracting office is competent to establish a board, but agency regulations might provide some guidance. This board is crucially important. The board reviews the responses from interested firms, evaluates the firms, holds discussions with them, and makes a rank-ordering of them. All of this is done without considering price.

Then, the selecting authority then does a final rank-ordering and establishes the list of "selected firms." See FAR 36.602-4. I'm not sure the chief of the contracting office is competent to appoint a selecting official, but agency regulations might provide some guidance.  

Then, the contracting officer begins negotiations with the first firm on the selecting authority's list.

On 5/16/2016 at 5:21 PM, Vern Edwards said:

ji20874:

Suppose that the chief of a contracting office were to come to you and say that he was thinking of using Brooks Act procedures instead of FAR Part 15 procedures to buy engineering services. He doesn't have experience with the A-E selection process and wants some advice. What would you suggest that he do to prepare his office to use Brooks Act procedures successfully? What measures would you suggest that he take? Can you provide a bullet list?

  • Establish some guidance on when a qualifications-based selection process might be in an agency's interest, and when it might not, given the process described above and with full recognition that price will not play in the process until the final step.
  • If we expand the A-E process into "other professional services of an architectural or engineering nature" as described in FAR 36.601-4( a )( 3 ) and para. ( 3 ) of the FAR 2.101 definition of architect-engineer services, we must expect that the evaluation, discussions, and rank-ordering processes of the evaluation board will be subject to protest.  Traditional A-E firms tend not to be overly litigious and don't protest very much, but we will be expanding into territory beyond the traditional A-E firms and traditional A-E acquisitions.  I think many "other professional services" should continue to be acquired using price as an evaluation factor -- see FAR 36.601-3( d ) -- but for those few "other professional services of an architectural or engineering nature" where qualifications are what matters, we need to be honest in these acquisitions.
  • Do not confuse "other professional services of an architectural or engineering nature" as described above with "professional employee" as described in FAR Subpart 22.11.  To me, "other professional services of an architectural or engineering nature" is a small subset of "professional employee" as described in FAR Subpart 22.11.
  • Give very careful attention to FAR 36.601-3( d ) -- very careful attention.  Give meaning to the word "incidental" -- if the services are not incidental to "other professional services of an architectural or engineering nature" and "do not require performance by a registered or licensed architect or engineer, notwithstanding the fact that architect-engineers also may perform those services," then don't use a qualifications-based approach -- see FAR 36.601-3( d ).
  • All players in the process, including prospective contractors, must have some confidence in the evaluation board's ability to fairly do its evaluation, hold discussions, and do the initial rank-ordering.  It really must be a search for the most qualified, rather than an attempt to avoid FAR Part 15.  It cannot turn into a show process to justify selecting the pre-selected firm.  Indeed, if there is a pre-selected firm, and the A-E process is a sham to get to that firm, well, that will not be good.
  • Remember that members of the evaluation board must themselves be "highly qualified professional employees of the agency or other agencies" with real experience in the discipline being evaluated.  See FAR 36.602-2( a ).  
  • Rely heavily on FAR 36.602-1( a )( 1 ) through ( 5 ) for selection criteria to be used by the board -- minimize any use of ( a )( 6 ) -- if we put too much emphasis on ( a )( 6 ), we will likely be departing from a qualifications-based process.
  • Establish some procedures to ensure the contracting officer has a robust and reliable independent Government cost estimate, not a sham estimate that was actually developed by the pre-selected contractor.  See FAR 36.605.  Since there will be no price competition, the contracting officer MUST have a good basis for a price negotiation. 
  • Since all the firms on the selecting authority's list are among the most highly qualified and are "selected firms," the agency must meaningfully empower the contracting officer to actually do what the contracting officer is supposed to do, especially to make the decision to close negotiations with one firm and open negotiations with the next firm on the list.  See FAR 36.606( f ).
  • The contracting officer must be prepared to do a real price negotiation.

The above is not as crisp as I would like it to be, and it is written from a perspective of discouraging over-eager use of the A-E qualifications-based approach for most engineering services.  But where it might fit, I suppose my biggest point is to carefully screen the acquisitions and only select those for which we are really interested in a qualifications-based outcome -- please, not all engineering services acquisitions -- price can be a meaningful evaluation factor in many or most engineering services acquisitions.  Once we have selected the few that are really qualifications-based, then just do what FAR Subpart 36.6 says -- develop meaningful evaluation criteria, develop a robust IGCE, appoint a professionally-competent evaluation board (knowing that the evaluation board will do its evaluation, discussions, and rank-ordering without any contracting officer supervision), have a competent and engaged selection authority, and have a competent and engaged (maybe even a visionary) contracting officer who is willing and able to do what FAR Subpart 36.6 says.  

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Guest Vern Edwards
34 minutes ago, ji20874 said:

But where it might fit, I suppose my biggest point is to carefully screen the acquisitions and only select those for which we are really interested in a qualifications-based outcome -- please, not all engineering services acquisitions -- price can be a meaningful evaluation factor in many or most engineering services acquisitions.  Once we have selected the few that are really qualifications-based, then just do what FAR Subpart 36.6 says... .

ji20874:

Do you agree that statute takes precedence over regulation, and that if regulation conflicts with statute, the statute prevails? If so, then is there really a choice? If services fit the definition of "architecture or engineering services," which are defined identically in the statute and the FAR, doesn't 40 U.S.C. § 1103(a) mandate use of Brooks Act procedures?

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(a)In General.—

These procedures apply to the procurement of architectural and engineering services by an agency head.
 

Now, here's the definition of architectural and engineering services, as it appears in 40 U.S.C. § 1102(2):

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(2)Architectural and engineering services.—The term “architectural and engineering services” means—

(A)
professional services of an architectural or engineering nature, as defined by state law, if applicable, that are required to be performed or approved by a person licensed, registered, or certified to provide the services described in this paragraph;
(B)
professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration, or repair of real property; and
(C)
other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including studies, investigations, surveying and mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services.
If a service fits the description in paragraph (C), then doesn't the CO have to comply with the Brooks Act, regardless of FAR and tradition?
 
I teach the FAR, but I do not believe that the FAR is perfect or that it prescribes rules or provides guidance for all circumstances. There have been several cases in which the FAR has been invalidated because it conflicted with statute. As the chief of a contracting office, I would be prepared to venture out on this.
 
By the way, I think the Brooks Act selection procedure is much less complex and vulnerable to protest than the FAR Part 15 source selection process. That, in and of itself, is an attraction.
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Guest Vern Edwards
41 minutes ago, ji20874 said:

If we expand the A-E process into "other professional services of an architectural or engineering nature" as described in FAR 36.601-4( a )( 3 ) and para. ( 3 ) of the FAR 2.101 definition of architect-engineer services, we must expect that the evaluation, discussions, and rank-ordering processes of the evaluation board will be subject to protest.  

Emphasis added.

I think we should make it clear to others that "discussions" in Brooks Act procedures are not the same as discussions under FAR 15.306(d). They are a different matter entirely. See FAR 36.601-3(b) and HydroGeoLogic, Inc., GAO B-311263, 2008 CPD ¶ 218, May 27, 2008.

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1 hour ago, Vern Edwards said:

Do you agree that statute takes precedence over regulation, and that if regulation conflicts with statute, the statute prevails? If so, then is there really a choice? If services fit the definition of "architecture or engineering services," which are defined identically in the statute and the FAR, doesn't 40 U.S.C. § 1103(a) mandate use of Brooks Act procedures?

Vern,

What's the conflict between the statute and the FAR regarding Brooks Act procedures?

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Is this approach -- which I favor -- the opposite of LPTA? Is it "Best Qualified, Reasonably Priced"? Will it lead to higher negotiated costs than would be the case under LPTA? If not, why not? Because I suspect the criticisms aimed will involve price.

H2H

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Guest Vern Edwards
31 minutes ago, Don Mansfield said:

Vern,

What's the conflict between the statute and the FAR regarding Brooks Act procedures?

Don:

See FAR 36.601-3(d). Paragraph (C) of the definition says nothing about registration or licensing, which are governed by state law and mentioned only in paragraph (A) of the definition. I think that FAR 36.601-3(d) conflicts with 40 U.S.C. § 1103(a).

It's true that FAR 36.601-3(d) says "should," not shall, but I don't think it ought to say even that. If a service fits the description in definition paragraph (C), then I think the Brooks Act procedures apply. The drafters of the regulation clearly interpreted the Brooks Act to apply only to projects associated with real property. As the GAO pointed out, the statute says no such thing, and the legislative history does not even mention real property.

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Guest Vern Edwards
28 minutes ago, here_2_help said:

Is this approach -- which I favor -- the opposite of LPTA? Is it "Best Qualified, Reasonably Priced"? Will it lead to higher negotiated costs than would be the case under LPTA? If not, why not? Because I suspect the criticisms aimed will involve price.

H2H

H2H:

I wouldn't say "opposite." Selection is not contingent upon price in any way. However, contract award is contingent upon price reasonableness.

Will the use of Brooks Act procedures occasionally lead to higher prices ("costs") than LPTA? Yes. Will it consistently lead to higher prices? I cannot say. The question should be whether it will consistently lead to prices that are not fair and reasonable. The answer to that question will depend on how well contracting officers do their jobs.

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Vern,

I gave my answer within a FAR context -- I don't feel at liberty to ignore the FAR because of my opinion that it conflicts with statute.  So the FAR says that the contracting officer "should" consider services in 36.601-4( a )( 3 ) as A-E services subject to the A-E process, not "shall" or "must."  And, more importantly, the FAR includes 36.601-3( d ) -- I cannot ignore it -- indeed, as I wrote above, "give very careful attention to FAR 36.601-3( d ) -- very careful attention."

I am not prepared to declare that all engineering services acquisitions must be done using FAR Subpart 36.6 procedures.  Giving careful attention to FAR 36.601-3( d ), and knowing how broad the "engineering services" definition is, I would think that only a small subset of engineering services acquisitions might fit under the broader use of FAR Subpart 36.6 allowed by the recent case.  As a manager in a contracting office, I think it would be foolish to do all engineering services acquisitions under FAR Subpart 36.6 -- some, yes -- all, no.

You have previously declared in this forum that contracting officers have to follow the FAR, not statute.  Are you changing your mind?

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54 minutes ago, Vern Edwards said:

Don:

See FAR 36.601-3(d). Paragraph (C) of the definition says nothing about registration or licensing, which are governed by state law and mentioned only in paragraph (A) of the definition. I think that FAR 36.601-3(d) conflicts with 40 U.S.C. § 1103(a).

It's true that FAR 36.601-3(d) says "should," not shall, but I don't think it ought to say even that. If a service fits the description in definition paragraph (C), then I think the Brooks Act procedures apply. The drafters of the regulation clearly interpreted the Brooks Act to apply only to projects associated with real property. As the GAO pointed out, the statute says no such thing, and the legislative history does not even mention real property.

I don't necessarily see a conflict. I think the statute is silent regarding whether the architects and engineers should have licenses or be registered. In implementing the statute, the FAR Council added that they should have licenses or be registered. 

In Latvian Connection General Trading and Construction, LLC, B-408633, Sep. 18, 2013, the GAO said that the geographic restriction on the Small Business Act at FAR 19.000(b) did not conflict with the statute, which was silent on its geographic applicability. 

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Guest Vern Edwards
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You have previously declared in this forum that contracting officers have to follow the FAR, not statute.  Are you changing your mind?

ji20874:

Well, I'm arguing. I'm trying to be a critical thinker and innovator, like the bosses say they want us to be. FAR 36.601-3(d) says: "should be acquired pursuant to Parts 13, 14, and 15." Emphasis added. It doesn't say shall. As a former chief of two contracting offices in DOD and DOE I can tell you right now that "should" leaves the corral gate wide open, and I feel that as senior members we should be leading the other horses to the wild high country.

This new discussion forum is for experienced members. If we're not going to stretch, reach, try ideas, and challenge boundaries, then there is no reason for me to participate. Where FAR leaves any tiny bit of an opening, I want to go for it, and I'm not interested in asking for permission where a boundary isn't sharply delineated.

I am absolutely, positively convinced that requiring evaluation of price in every source selection is applying a 19th Century policy to 21st Century acquisition. I want that rule either repealed or modified to let agencies choose other approaches when it makes sense to do so. The GAO decision opens the corral gate, and I want to take as many horses through as possible. I just want to know how best to do it.

 

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As I said way up high, I'm intrigued by the possibilities.

I advocate a more careful application -- you advocate a broader application -- that's okay.  Either way, I think FAR Subpart 36.6 already tells us everything we need to know.  An agency wanting to take full advantage of the opportunity should:

  • Establish some guidance on when a qualifications-based selection process might be in an agency's interest, and when it might not, given the process described above and with full recognition that price will not play in the process until the final step.
  • Be aware that the evaluation, discussions, and rank-ordering processes of the evaluation board will be subject to protest -- so records should be maintained to support the outcome. 
  • Limit the application to "other professional services of an architectural or engineering nature or services incidental thereto."
  • Give careful attention to FAR 36.601-3( d ).
  • Make sure the evaluation board can fairly do its evaluation, hold discussions, and do the initial rank-ordering.  It really must be a search for the most qualified firm, rather than an attempt to avoid FAR Part 15.  It cannot turn into a show process to justify selecting a pre-selected firm. 
  • Remember that members of the evaluation board must themselves be "highly qualified professional employees of the agency or other agencies" with real experience in the discipline being evaluated.  See FAR 36.602-2( a ).  
  • Rely heavily on FAR 36.602-1( a )( 1 ) through ( 5 ) for selection criteria to be used by the board -- minimize use of ( a )( 6 ) -- too much emphasis on ( a )( 6 ) could indicate a departure from a qualifications-based process.
  • Establish some procedures to ensure the contracting officer has a robust and reliable independent Government cost estimate, not a sham estimate that was actually developed by the pre-selected contractor.  See FAR 36.605.  Since there will be no price competition, the contracting officer MUST have a good basis for a price negotiation. 
  • Meaningfully empower the contracting officer to actually do what the contracting officer is supposed to do, especially to make the decision to close negotiations with one firm and open negotiations with the next firm on the list.  See FAR 36.606( f ).
  • Train the contracting officer to do a real price negotiation.

 

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2 hours ago, ji20874 said:

As I said way up high, I'm intrigued by the possibilities.

I advocate a more careful application -- you advocate a broader application -- that's okay.  Either way, I think FAR Subpart 36.6 already tells us everything we need to know.  An agency wanting to take full advantage of the opportunity should:

  • Meaningfully empower the contracting officer to actually do what the contracting officer is supposed to do, especially to make the decision to close negotiations with one firm and open negotiations with the next firm on the list.  See FAR 36.606( f ).
  • Train the contracting officer to do a real price negotiation.

 

Yeah, those two are going to be hard in today's environment. Don't forget to train the peer reviewers and the Boards of Review who will want to be involved at every step "to ensure consistency."

Or -- and I'm just spitballing here -- we could consider eliminating peer reviews and Boards of Review as SOP process steps, and not only empower the warranted COs but also hold them accountable for their decisions.

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