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Seeker

Voting member of a source selection board?

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FAR 7.503(c)(12)(ii) says a contractor can't be a "voting member" of a source selection board. What does "voting member" mean? FAR Part 15 does not mention voting members. There is nothing about them in DFARS. The DOD source selection procedures memo mentions voting members of SSAC and SSEB, but does not say what they vote for. So what do voting members vote for? Is the source selection decision made by vote?

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Seeker, are you employed by a contractor or the government?  If you are employed by the government, have you ever had any involvement with a source selection?  I am asking this to help in knowing how basic or advanced the answer should be.

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Assume that I know nothing other than whats in FAR, DFARS and the DOD procedures which is why I'm asking. 

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Some agencies, like NASA, use voting members and non-voting members on the SEB.  To my knowledge DOD does not use voting members so that is why you cannot find a reference in the DFARS.  For more information on how NASA uses voting members on the SEB see the NASA FAR Supplement 1815.370 NASA source evaluation boards at:

https://www.hq.nasa.gov/office/procurement/regs/1815.htm

In addition the NASA Source Selection Guide provides agency-wide guidance to individuals participating in the SEB process and contains information on voting members and is available at: http://prod.nais.nasa.gov/portals/pl/documents/Source_Selection_Guide_March_2012.pdf. 

 

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Let me take Seeker's question and expand upon it just a bit.  What do these people "vote" on?  Aren't they supposed to come to some type of agreement and then pass on their recommendation to the SSA?  Is that what the "vote" is for?  What are they "voting" on?   Is it a case where 4 people say that Company A should be rated as Exceptional and 3 people say Above Satisfactory and majority rules?  I've been doing contracting for awhile now and I've never seen an actual vote taken.

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Seeker,

Reading between the lines, FAR 7.503(c)(12)(ii) assumes the fiction that a source selection board uses voting to make decisions. However, there's no requirement to use voting to make decisions and some source selection boards use other methods to make decisions or recommendations. The DoD guide is just thoughtlessly repeating what's in the FAR.

You may want to check The Source Selection Answer Book by Vern Edwards (if you can find a copy). My copy is on loan.

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The term "voting member" refers to those persons assigned to evaluate proposals and determine or assign factor and sub factor ratings to proposals.  Depending on the agency, the rating might be a numerical score or an adjectival rating. Also, depends on the agency whetheror not the team makes a recommendation for award. 

The "team" may be supported by technical experts or other subject matter advisors on technically complex evaluations who provide input to the "voting members".  

Depending upon the agency, the "voting team" might also consider and/or evaluate pricing. 

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Desparado understands what I'm asking. Do they vote on whether a proposal is acceptable? Do they vote on whether something is a strength? A weakness? A deficiency? Do they vote on factor ratings? Do they vote on tradeoff results? Do they vote on offeror rankings? Do they vote on who is in and out of the competitive range? Do they vote on discussion questions? Do they vote about whether or not to seek clarification? Do they vote on recommendations to a decision maker? Do they vote on the decision itself? All of the above?

Are votes bare majority rule? Two-thirds? Does the team chairperson have a veto? Does the contracting officer?

If there's voting, why is there so much talk about consensus? The outcome of a vote is not a consensus. Wouldn't some part of the "team" win and some part lose?

I looked at some GAO decisions that mention voting members, but I couldn't find one that said what they voted on.

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From the definition of the verb vote from Merriam-Webster:

 

Quote

 

  • 1 :  to choose, endorse, decide the disposition of, defeat, or authorize by vote he was voted out of office

  • 2a :  to adjudge by general agreement :  declare

    • b :  to offer as a suggestion :  propose I vote we all go home

  • 3a :  to cause to vote in a given way

    • b :  to cause to be cast for or against a proposal

  • 4 :  to vote in accordance with or in the interest of vote your conscience voted their pocketbooks

 

See 2a, regarding your comment that the outcome of a vote is not a consensus.  Yes, it can be. For DoD, the objective is for the members of the evaluation team is come to a consensus opinion on the evaluation (or "to adjudge by general agreement" the results of an evaluation) of a particular proposal. The DoD document that I am to assume you read explains what to do when a team cant reach a consensus on what they are assigned to evaluate or report on.

I already answered your question regarding WHAT they "vote" on and it is stated in the DoD source selection procedures that you said to assume that you know. 

An evaluation team may or may not develop rankings, depending upon the agency procedures.  The evaluation board doesn't perform trade-offs  When there is a Source Selection Advisory Council for a trade-off type SS, the SSAC may perform a tradeoff and make recommendations, obviously through some type of consensus procedure.  If you read the documents that you referred to above, you would be familiar with the general roles and responsibilities of the different source selection team members for DoD acquisitions. If you read the documents and various protests, you know the answers to questions regarding who does what.

I've been personally involved in approximately 90 source selections - it wasn't rocket science.  It is a systematic process.  It wasn't very difficult to come to a consensus on ratings and the underlying basis for those ratings for the source selections that I led or otherwise participated in. I also participated in writing the model proposal submission requirements and evaluation criteria and the general source selection procedures that were used on several hundred projects and contracts totaling tens of billions of dollars for Army MILCON design-build contracts used in support of the "Army Transformation" process between 2006 and 2013 or so.

The key to "rating" each rated factor or subfactor is for the TEAM to agree on and document the underlying basis, such as strengths, weaknesses, compliance or deficiencies, uncertainties, risks, etc. Then the TEAM assigns a rating that corresponds with those documented comments, based on the rating scheme..

 

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A little history lesson here.  FAR 7.5 is the regulatory implementation of OFPP Policy Letter 92-1 issued September 23, 1992.  So far as I can find, this Policy Letter was the first statement on inherently governmental functions.  Appendix A to the Policy Letter contained a list of functions that were considered inherently governmental, including the language about being a voting member on a source selection board.  The Policy Letter did not provide any further explanation as to what this meant.  The Policy Letter directed the FAR Council to incorporate the Letter into the FAR.  Taking the course of least resistance, the FAR Councils merely reformatted Appendix A and incorporated it into the FAR without any substantive alterations.  In other words, the FAR Councils were told to do something and they did it.  It is very likely that the Councils did not give much, if any, thought to what was meant by anything in the Policy Letter. 

FAR 15.305 gives a brief discussion of proposal evaluation procedures.  This section gives agencies broad discretion in how proposals are to be evaluated.  FAR 7.105(b)(4) requires acquisition plans to describe "the source-selection procedures for the acquisition, including the timing for submission and evaluation of proposals."  Thus, if voting is to occur in regard to proposal evaluations, that should be discussed in the acquisition plan.  Sometimes, agencies will prepare a source selection plan as a separate document that meets the requirement of 7.104.  What this means is that if evaluators are to vote on something, it should be described in the acquisition/source selection plan. 

The FAR seems a little contradictory when 7.104 is read in conjunction with 37.203(d) which states that

Contractors may not be paid for services to conduct evaluations or analyses of any aspect of a proposal submitted for an initial contract award unless—

(1) Neither covered personnel from the requesting agency, nor from another agency, with adequate training and capabilities to perform the required proposal evaluation, are readily available and a written determination is made in accordance with 37.204;

(2) The contractor is a Federally-Funded Research and Development Center (FFRDC) as authorized in 41 U.S.C. 1709(c) and the work placed under the FFRDC's contract meets the criteria of 35.017-3; or

(3) Such functions are otherwise authorized by law.

Thus, 37.203 permits contractors to be paid to evaluate proposals in certain circumstances.  If evaluating a proposal is equivalent to voting on a proposal, we have a conflict between these FAR sections.  Complicating matters even further is 18 U.S.C. 1905.  If a proposal contains confidential financial information or trade secrets, what authority does the contracting officer have to provide that proposal to a contractor for evaluation or voting?

To specifically address some of Seeker's questions, the source selection authority is responsible for making the decision as to who receives a contract.  Evaluations or votes from evaluation teams are merely recommendations to the SSA.  The SSA is responsible for making any trade-off decisions, who is in the competitive range, and what, if any, discussions will be held.

 

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28 minutes ago, joel hoffman said:

See 2a, regarding your comment that the outcome of a vote is not a consensus.  Yes, it can be.

Mr. Hoffman you speak so authoritatively that I'd believe you if I didn't read things. I asked if voting was majority rule. You didn't answer so I have no idea what you mean by voting, and I really don't care about what Merriam Webster has to say. I haven't met him. Your "It can be" is useless.

I checked out:

http://www.dailykos.com/story/2011/10/7/1023999/-

http://www.differencebetween.net/miscellaneous/politics/difference-between-consensus-and-majority-rule/

https://en.wikipedia.org/wiki/Consensus_decision-making

https://theparticipationcompany.com/2016/11/voting-vs-a-consensus-decision-making-process/

https://treegroup.info/topics/comparison-chart.pdf

http://governing.ca/Consensus_Parliamentary.html

http://randomactsofleadership.com/why-consensus-doesnt-work/

and many many more comparisons between voting and consensus. So please stop lecturing. I suspect that I know more about the difference than you do. You have not answered my question and if you can't answer my question why bother? I asked because I honestly want to know why there is so much talk of consensus in source selection and yet FAR 7.503 speaks of voting with saying about what or how. I can't find any explanation in any official government publications.

Thanks anyway. But I don't want to be talked down to.

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30 minutes ago, Retreadfed said:

To specifically address some of Seeker's questions, the source selection authority is responsible for making the decision as to who receives a contract.  Evaluations or votes from evaluation teams are merely recommendations to the SSA.  The SSA is responsible for making any trade-off decisions, who is in the competitive range, and what, if any, discussions will be held.

Thank you, Retreaded. But that still does not address my questions. But I do have a new one. Can the SSA be a panel of people or must it by law or regulation be one person?

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For DoD,  "Voting" by source selection evaluation team voting members means essentially to adjudge by general agreement the ratings of proposal factors and subfactors for individual proposals and the underlying basis for them.  

Quote

 

Definition of consensus from Merriam Webster

1a :  general agreement :  unanimity the consensus of their opinion, based on reports … from the border — John Hersey

b :  the judgment arrived at by most of those concerned the consensus was to go ahead

2 :  group solidarity in sentiment and belief

 

 

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Forr the Army, there is an  ARMY  SOURCE SELECTION SUPPLEMENT (AS3)  TO THE DEPARTMENT OF DEFENSE SOURCE SELECTION PROCEDURES  at

http://www.spd.usace.army.mil/Portals/13/docs/Small_Business/Army Source Selection Supplement (Dec 2012).pdf  

See Chapter 3 "EVALUATION AND DECISION PROCESS" for a general description of the "voting" process. 

As for why FAR discusses "voting", when DoD and Army don't use the term, I know that the source selection process has evolved over the years plus different agencies do things differently.  When I started leading SS processes in the late 80's and early 90's, I had to read what I could find.  For the DoD level and Army, there were no DoD-wide or Army-wide SS manuals.  The Army Material Command had one that was eventually incorporated into the Army SS Manual.  I also read every protest that I could find. I forget exactly when the guidance first mentioned reaching "consensus" and documenting any dissenting opinions for the SSA.  I read "voting" to mean that each voting member has a voice in providing input and discussing the findings and conclusions of the evaluation team.  Non-voting evaluation team members don't. 

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Mr. Hoffman, I downloaded the Army document you linked me to and searched for the words "vote" and "voting." Vote does not appear in the document and voting appears only once as follows: "However, they may not be voting members of the SST or participate in rating proposals or recommending a selection." The chapter to which you referred me makes no mention of voting. However it does say this

Quote

Consensus requires a meeting of the minds on the assigned rating and associated deficiencies, strengths, weaknesses, uncertainties and risks. A simple averaging of the individual evaluation results does not constitute consensus.

Meeting of the minds does not sound like voting. How was that document supposed to help me?

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14 minutes ago, Seeker said:

Meeting of the minds does not sound like voting. How was that document supposed to help me?

For DoD,  "Voting" by source selection evaluation team voting members means essentially to adjudge by general agreement the ratings of proposal factors and subfactors for individual proposals and the underlying basis for them.  That is consistent with one definition for "vote".  One must "read between the lines" .  Like I said, the evaluation process has evolved over the years. When I started in the late 80's, our organization had been adding up individual "numerical scores" for each factor, which I would say constitutes individual "voting.   

 

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The policy coverage in FAR 7.503 of inherently governmental functions was added by FAC 90–37; FAR Case 92–051 Item I, published in the Fed Register on January 26, 1996.  It implemented the policies of Office of Federal Procurement Policy (OFPP) Policy Letter 92–1, Inherently Governmental Functions. The applicable language came straight from APPENDIX 5 of Office of Federal Procurement Policy (OFPP) Policy Letter 92-1, "Inherently Governmental Functions", September 23, 1992.  The term "voting member" was in that document. 

Nobody translated the OFPP language to FAR 15 language, which was then in 15.6 - and FAR 15.6 didn't discuss the evaluation process or source selection boards. 

Sorry that I cant specifically answer your question but I think that the FAR simply adopted terms from OFPP "speak" dating from at least as far (no pun intended) back as 1992..

edit: Ok, the above is essentially repeating what Retreadfed said earlier. 

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Joel, I think you are on the right track.  The FAR merely repeated what was in the Policy Letter.  If there is any interpretation of what voting member means, it is to be found in agency supplements, non-binding guidance or acquisition plans.  Simply put, there are no universal answers to most of Seeker's questions. 

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14 minutes ago, Retreadfed said:

Joel, I think you are on the right track.  The FAR merely repeated what was in the Policy Letter.  If there is any interpretation of what voting member means, it is to be found in agency supplements, non-binding guidance or acquisition plans.  Simply put, there are no universal answers to most of Seeker's questions. 

Agreed, Retread

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Quote

What does "voting member" mean?

Seeker:

Whenever a source selection is organized into a group--board, committee, panel, team, etc.--such that two or more persons are instructed to opine about the relative quality of competing proposals, the members must decide how to present their opinions to others. The FAR System does not prescribe how that is to be done, and it appears that in most agencies each evaluation group decides how it will proceed--presentation of individual opinions, presentation of a consensus group opinion, or presentation of a group opinion that is the product of a vote.

Quote

So what do voting members vote for?

They might vote on any matter that must be decided by the evaluation group--findings of fact, conclusions, ratings, comparisons, and decisions of various kinds. It depends on how they set themselves up.

But what is meant by "voting"?

Voting and consensus are two processes used for group decision making. The two are generally considered very different. Voting is fast, but can leave some voters dissatisfied. Witness our current national political situation. Consensus is slow, but tends to result in a more widely accepted outcome. During the early 1980s there was much discussion of how the Japanese used consensus to arrive at more widely accepted business,social, and political decisions. Consensus doesn't mean everyone agrees completely. It means that everyone can live with a certain conclusion.

Voting takes many forms, from simple majority rule to something more complicated, like a two-thirds majority and our system for selecting presidents. But all voting systems entail, well, voting--that is, the casting of individual ballots to register individual opinions or preferences and the tallying of ballots to decide an outcome. As we well know, a result obtained through voting doesn't always please everyone. The use of voting is not characteristic of consensus systems, which entail, in ideal form, discussion and concession rather than the casting of ballots.

GAO protest decisions make many references to evaluation group "voting members," which suggests that some evaluation groups use some kind of voting process to make group decisions. Some of the GAO decisions provide insight into what the groups were voting about and how they proceeded. For example:

Quote

THE FEDERAL HIGHWAY ADMINISTRATOR STATES THAT FIVE PROPOSALS WERE RECEIVED FOR THIS PROCUREMENT AND A TEN MEMBER TEAM WAS ESTABLISHED FOR EVALUATING THE PROPOSALS. IT IS REPORTED THAT AFTER COMPLETING ITS EVALUATIONS THE TEAM VOTED 9 TO 1 TO ACCEPT THE WESTAT PROPOSAL.

Capitalization in original. That seems to have been a case of simple majority rule.

Then there's this:

Quote

Two best value recommendations were prepared by the TEP. A majority of the TEP (three voting members as well as the non-voting chair) recommended that the higher-rated, higher- priced proposal of Clark/F–P be selected for award as reflecting the best value to the government...

A minority of the TEP (two voting members) recommended Harbert's proposal be selected for award.

A footnote says:

Quote

The State Department contends that the TEP chair signature on the majority recommendation did not indicate his agreement with these evaluators' view that Clark/F–P should be selected as the best value offeror. AR at 7 n.1, n.2. This contention appears to be contradicted by the record, given that the TEP chair did not sign the minority recommendation even though a space was provided for his signature. See AR, Tab 11, TEP Minority Recommendation, at 10.

Apparently not a matter of simple majority rule.

However, there are many cases in which the agency and the GAO speak of "voting members" despite the fact the agency did not use true voting procedures:

Quote

The SSP [Source Selection Plan] directed that an SEB [Source Evaluation Board] consisting of five voting members (including a chairman) and five advisory members be convened to evaluate technical proposals. The SSP directed that the five voting members of the SEB should individually score each offeror's proposal under each technical factor and provide written narratives explaining and supporting their individual judgments concerning the proposals, after which a final overall consensus score was to be determined, supported by a narrative discussion of the advantages and disadvantages of each proposal for each evaluation factor.

That does not sound like a true voting procedure. In this case, "voting member" seems to indicate nothing more than a member who is entitled to  express an opinion.

So "voting member" may not mean that a real voting procedure was used. It may mean nothing more than that a votng member was someone who could express an opinion that mattered in some way. It may mean opining member.

As for your second question, what do voting members vote about, review of GAO decisions shows that evaluation groups "voted" (opined) on all sorts of things, including findings, conclusions, ratings, recommendations, and actual decisions about various things.

In short, the evidence is that  "voting" as used by acquisition people, does not necessarily mean true voting--the casting of ballots. As to what votes are about, the answer is that they can be about anything that an evaluation group must decide.

People in our business tend to be careless in their use of words and terms.

You also asked:

Quote

Is the source selection decision made by vote?

Maybe, sometimes, but not usually. I think that usually it's the decision of one person, not a group.

 

 

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