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Don -  The acquisition is still structured around the results and the contractor is determining the methodology used to achieve those results.  The fact that we are holding them to what they proposed doesn't negate the project as being performance-based, imho.

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Napolik - Thank you very much for the GAO decision that was just released yesterday.  It was very timely and to me very applicable.  I appreciate the head's up! 

I was surprised that the Army, which of course falls under the DFARS, used a subjective determination in their evaluation criteria but I think it is great and should be an example that just because it is LPTA doesn't mean that it has to be simply a "did they send in something" approach and can have some actual subjective evaluation associated with it.

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2 hours ago, Desparado said:

Don -  The acquisition is still structured around the results and the contractor is determining the methodology used to achieve those results.  The fact that we are holding them to what they proposed doesn't negate the project as being performance-based, imho.

Sorry, Desperado, but contractually binding a contractor to a specified manner of performance is inconsistent with PBA, which binds the contractor do whatever it takes to produce a specified outcome. It doesn't make any difference that the contractor proposed the method. See FAR 2.101:

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“Performance-based acquisition (PBA)” means an acquisition structured around the results to be achieved as opposed to the manner by which the work is to be performed."

See also FAR 37.602:

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(b) Agencies shall, to the maximum extent practicable—(1) Describe the work in terms of the required results rather than either “how” the work is to be accomplished or the number of hours to be provided (see 11.002(a)(2) and 11.101)....

I don't care what you guys do in this regard, because I don't believe in PBA. But I must point out that you're being inconsistent. You know how it is here.

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Vern - I do... and I appreciate the head's up.  However, playing devil's advocate...  I would argue (splitting hairs) that we are still in compliance.

The acquisition is "structured" around the results to be performed and we do describe the work in the PWS by the required results rather than the "how".  However, I do still believe that the contractor should be held to the methodology they propose because otherwise the government is opened to a bait-and-switch tactic with methodology just like some contractors love to do with their proposed staff (which is why I never want to see resumes).

I always respect your input and I see your point, but I respectfully disagree and still feel that I am ok with my staff coding this acquisition as performance-based because we structured the acquisition around the results and defined it as such in the PWS. There mere fact that we hold a contractor to the method they propose does not negate it from being PBA, imho.

 

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Desparado,

Why wouldn't you use a Statement of Objectives as your work statement instead of a PWS?  Just provide your objectives and have offerors propose how they will meet your objectives.

 

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2 hours ago, Desparado said:

The acquisition is "structured" around the results to be performed and we do describe the work in the PWS by the required results rather than the "how".  However, I do still believe that the contractor should be held to the methodology they propose because otherwise the government is opened to a bait-and-switch tactic with methodology just like some contractors love to do with their proposed staff (which is why I never want to see resumes).

I always respect your input and I see your point, but I respectfully disagree and still feel that I am ok with my staff coding this acquisition as performance-based because we structured the acquisition around the results and defined it as such in the PWS. There mere fact that we hold a contractor to the method they propose does not negate it from being PBA, imho.

The "structured" thing is a dodge, and I think you know it. :lol: Not that I oppose the use of a good dodge now and then, especially in connection with PBA. But now I'm going to pull your chain. As I said, it doesn't matter to me what you do, but it does matter to me when you are being inconsistent.

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I do still believe that the contractor should be held to the methodology they propose because otherwise the government is opened to a bait-and-switch tactic with methodology just like some contractors love to do with their proposed staff (which is why I never want to see resumes).

Bait and switch? They're supposed to bait you with the promise to produce the specified results without fail no matter what it takes and no matter what it costs them. They "proposed" a methodology only because you asked them to. Presumably, you asked them to so you could judge the likelihood that they would succeed in producing the specified result, which is what you're supposed to hold them to. Once the contract is awarded they are supposed to do whatever it takes. The policy makers spent 20 years trying to drum that into the heads of GS-1102s. Do I have to cite something out of 20 years of policymaking? You should know this as well as I.

What if it turns out that, try as they might, the contractor cannot produce the specified result through its "methodology"? Both you and the contractor misjudged the methodology. Have you let it off the hook? A good lawyer would eat you alive. You insisted that they use the methodology, even though it wouldn't work, even though a change in methodology would have worked. And oh, by the way, a change in methodology from something that wouldn't work to something that would work might cost you money. After all, it could only happen if you changed the contract.

Don't take any of this seriously. I just like to jerk on the collars of PBA people.

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37 minutes ago, Desparado said:

I was surprised that the Army, which of course falls under the DFARS, used a subjective determination in their evaluation criteria

The passage quoted by napolik is not from DFARS. It's from the DOD Source Selection Procedures, which appear to be part of the PGI. DFARS says nothing about LPTA. The term appears only once in the DFARS, in a reference to small business subcontracting plans. DFARS does not prohibit the use of subjective factors in an LPTA source selection.

It's not clear that the DOD Source Selection Procedures prohibit the use of subjective factors with LPTA. napolik quoted a single paragraph in a four page appendix to the Procedures. The next paragraph discusses evaluation factors extensively, especially past performance, and does not proscribe the use of subjective factors.

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Vern - As always, thank you for your input.  You've given me quite a bit to think about. I'm not ready to change my mind yet, but you've given me food for thought, which I always enjoy.

Consider my chain pulled.

 

Weno2 - My agency isn't ready for SOO.  Heck, they're barely ready for PBA as evidenced by this conversation.

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For design-build construction contracts, where the accepted proposal is incorporated into the contract at award, we use an order of precedence clause. 

In the event of conflict, the order of precedence is:  any betterment in the accepted proposal, the solicitation requirements, any other aspects of the accepted proposal, and the final design deliverables, which are not part of the contract but must meet the contract requirements.  

A "betterment" is defined as any feature in the accepted proposal that both meets and exceeds the solicitations minimum requirements.  

Has worked well for over 20 years.  However, the government must perform  reasonable proposal evaluation during source selection or task order competition to determine proposal compliance. That doesn't require the government to perform proposal engineering design reviews  before award but would encompass patent design errors in a proposal. 

The government cannot rely on the clause if it was negligent in proposal review or knowingly overlooks proposal flaws, errors or deviations. 

We don't use the FAR Order of Precedence clause, as it prescribed for use with the Uniform Contract Format.  USACE  use the MasterFormat for construction and design-build contracts. 

Government doesn't pay extra to obtain the minimum solicitation requirements if the proposed design doesn't  work.  Of course, where contractor meets the minimum solicitation performance or prescriptive requirements and it doesn't work, that generally becomes the government's liability under the Spearin Doctrine. 

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Desparado, Vern's point about "bait and switch" is more than a theoretical point.  I was involved in just such a situation on the contractor side.  The government wanted a system that had never been produced before and stated the performance the system had to meet.  The contractor proposed a solution that it thought would achieve the government's objectives.  Interestingly, the contractor's proposal was incorporated into the government's version of the contract, but it was not incorporated in the version provided to the contractor.  After award, integrating the various parts of the system turned out not to be feasible and the contractor went in a new direction that it thought would achieve the results the government desired.  However, the government insisted on the use of the original approach, which it insisted was a term of the contract, without thinking whether the contractor's revised approach would work.  Obviously, this lead to a dispute and much bad feelings on the part of both parties.

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3 hours ago, Desparado said:

Vern - As always, thank you for your input.  You've given me quite a bit to think about. I'm not ready to change my mind yet, but you've given me food for thought, which I always enjoy.

Consider my chain pulled.

 

Weno2 - My agency isn't ready for SOO.  Heck, they're barely ready for PBA as evidenced by this conversation.

Desparado,

Vern took you where I was trying to lead you. While you're doing your thinking, I suggest you read "PERFORMANCE-BASED CONTRACTING: INCORPORATING THE PROPOSAL IN THE CONTRACT" in the September 2000 edition of the Nash & Cibinic Report (14 No. 9 Nash & Cibinic Rep. ¶ 47). Here's an excerpt:

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If we are correct in our understanding of the reason for the Government's drive for more performance-based contracting, we believe that incorporating proposal promises in the contract may conflict with the basic rationale. After all, promises in a technical proposal are devised in the most hectic period of a contractor's business--the proposal writing period. It stands to reason, therefore, that proposal promises may not represent the most cost-effective way to meet the Government's needs. If performance-based contracting is really aimed at arriving at the most cost-effective solution, wouldn't it make better sense to write the contract in terms of the original performance requirements and give the contractor the full freedom to perform that was originally contemplated?

 

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Here's an even better quote, from the late Professor John Cibinic in The Nash & Cibinic Report of February 2001, "Postscript II: Proposals and Promises":

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Much of contracting officials' opposition to performance-based contracting seems to be based on the fear that the contractor will pull a “bait and switch” on the Government--i.e., the contractor will “promise the moon” in the precontract phase and then perform using mediocre techniques. This is indeed possible under performance-based contracting. The essence of performance-based contracting is permitting the contractor the option of using a different technique if it would save time or money without affecting the end result. By being able to make such adjustments, the contractor may be able to save a contract from the disaster that could result if only specified processes or procedures were followed. Remember, the aim of a performance-based contract is to obtain the best result. The Government and the contractor should discuss any significant changes in expected processes or procedures and examine their impact on the end result. The Government should not insist that the contractor use expected processes or procedures merely because the contractor would save money by using a different procedure.

 

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I guess I am not a fan of "true" PBA acquisitions then.  I have no problem with letting the contractor (the ones with the most technical knowledge) determine the method for accomplishing the task during the proposal stage, but when a methodology falls into areas where the government might have concerns I am not willing to give them full lattitude to unilaterally change their methods mid-stream.  It's one thing when you're talking about how to accomplish office work or IT projects, but some areas are a bit more sensitive and once an approach is approved it should not be changed unless the new approach is also approved. My goal is to give the contractors the ability to propose their technology/approach up-front and then proceed from there.   

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8 hours ago, Desparado said:

Joel - Did I understand you to say that you do construction contracts as PBA?

Desperado, I was referring to design-build construction contracts.  The ideal and industry model would be to use performance oriented or performance criteria to the maximum extent possible.  During the proposal stage, the government would ask for design approach information that it would like to see to substantiate the design-builder's approach to meeting the design criteria and especially design and construction approaches that would discriminate between proposers. 

I mentioned that the proposal becomes part of the contract and how we use an order of precedence clause to hopefully avoid the problems or challenges that Vern and Don were concerned about.  If the proposed features don't meet the performance requirements, the contractor must still meet the minimum solicitation performance requirements. 

Our model approach is generally consistent with the Design-Build Institute of America industry model and philosophy.  

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On 6/21/2017 at 10:05 AM, Desparado said:

I guess I am not a fan of "true" PBA acquisitions then.  I have no problem with letting the contractor (the ones with the most technical knowledge) determine the method for accomplishing the task during the proposal stage, but when a methodology falls into areas where the government might have concerns I am not willing to give them full lattitude to unilaterally change their methods mid-stream.  It's one thing when you're talking about how to accomplish office work or IT projects, but some areas are a bit more sensitive and once an approach is approved it should not be changed unless the new approach is also approved. My goal is to give the contractors the ability to propose their technology/approach up-front and then proceed from there.   

Then don't do a performance-based and acquisition. Use what you said as an explanation.

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On 6/16/2017 at 5:11 PM, Desparado said:

...technical approach will be evaluated to determine whether it is technically sufficient

I would be very nervous about applying pass/fail on a "technical approach".    

Forest for the Trees question:  what is your motivation for wanting to do pass/fail rather than apply adjectival ratings?  Doesn't that kind of box you in?

 

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3 minutes ago, REA'n Maker said:

I would be very nervous about applying pass/fail on an "approach".    

Why?

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21 minutes ago, Don Mansfield said:

But then he won't get to code the action as PBA. :o

From my experience, the fact that  something is not actually a PBA hasn't prevented a single person from coding it as a PBA....<_<

"What gets measured gets done"

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10 minutes ago, Vern Edwards said:

Why?

Because I find it hard to believe that an agency  "would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal" when evaluating an approach.

If I had (for example) a "checklist of required tasks" that had to be met, that would be one thing. But the very fact I've asked for an open-ended "approach" makes me believe how the task gets done is important to me.  I just don't see how you square that circle.

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REA,

Here's how it works -- I don't like it; I'm just explaining it. An offeror with an approach we like gets a pass, an offeror with an approach we don't like gets a fail.  

I'm okay with pass/fail in LPTA if we really have some technical measures to assess -- and I'm okay sometimes with "approach" in LPTA -- but sometimes, all I see is technical approach, management approach, and/or staffing approach -- in such a case, I generally prefer tradeoff.  

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Doesn't it become definite to some degree when it is put in writing and submitted as part of a proposal?

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