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14 hours ago, Desparado said:

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

It's a matter of the law of contracts and of offer and acceptance. An offer is a promise or set of promises. What does the proposal say? Does the "approach" consist of a set of clear and specific promises, or does it just describe what the offeror is thinking of doing? Clear and specific promises are binding. Descriptions unaccompanied by promissory language probably are not. See the definition of promise in Restatement, Second, Contracts § 2:

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e. Illusory promises; mere statements of intention. Words of promise which by their terms make performance entirely optional with the “promisor” whatever may happen, or whatever course of conduct in other respects he may pursue, do not constitute a promise. Although such words are often referred to as forming an illusory promise, they do not fall within the present definition of promise. They may not even manifest any intention on the part of the promisor. Even if a present intention is manifested, the reservation of an option to change that intention means that there can be no promisee who is justified in an expectation of performance.

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f. Opinions and predictions. A promise must be distinguished from a statement of opinion or a mere prediction of future events. The distinction is not usually difficult in the case of an informal gratuitous opinion, since there is often no manifestation of intention to act or refrain from acting or to bring about a result, no expectation of performance and no consideration. The problem is frequently presented, however, whether words of a seller of goods amount to a warranty. Under Uniform Commercial Code § 2-313(2) a statement purporting to be merely the seller's opinion does not create a warranty, but the buyer's reliance on the seller's skill and judgment may create an implied warranty that the goods are fit for a particular purpose under Uniform Commercial Code § 2-315. In any case where an expert opinion is paid for, there is likely to be an implied promise that the expert will act with reasonable care and skill.

A promise often refers to future events which are predicted or assumed rather than promised. Thus a promise to render personal service at a particular future time commonly rests on an assumption that the promisor will be alive and well at that time; a promise to paint a building may similarly rest on an assumption that the building will be in existence. Such cases are the subject of Chapter 11. The promisor may of course promise to answer for harm caused by the failure of the future event to occur; if he does not, such a failure may discharge any duty of performance.

The mere fact that an offeror describes an "approach" in its proposal does not bind the offeror to follow that approach unless the wording clearly communicates a promise to perform in that way and in only that way. Do the Government personnel reading and evaluating the proposal know how to interpret the proposal language from the standpoint of the law of contracts?

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11 hours ago, Desparado said:

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

Vern's excellent description above led me to realize that the phrase "to some degree" seems to be contradictory to "definite".  How would something "become definite to some degree"?  😜 No offense, Des...

At any rate, thanks for the lesson, Vern. And thanks for the question, Des. 🤓

Edit: Des, the fact that it took me more than a half hour to write the above post is a reflection of my most excellent  ranking in about the 47 th percentile, Nationally, in "Writing and Language"* on my SAT exam. That was 51 or 52 years ago.   My parents made me re-take it, whereupon my score in that part went down...👨‍🎓

I did score in the 90+% percentile on Math and Reading*. 🤠

* Or whatever the sections and categories were back then. 

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4 hours ago, joel hoffman said:

Edit: Des, the fact that it took me more than a half hour to write the above post is a reflection of my most excellent  ranking in about the 47 th percentile, Nationally, in "Writing and Language"* on my SAT exam. That was 51 or 52 years ago.   My parents made me re-take it, whereupon my score in that part went down...👨‍🎓

I did score in the 90+% percentile on Math and Reading*. 🤠

* Or whatever the sections and categories were back then. 

Joel,

Completely off-topic but the SAT sections are basically the same today. The difference(s) include: optional essay, and optional "subject matter" focused SATs.

I know this because my son just took his test(s). Interesting fact: he scored exactly the same as I did more than 30 years ago, only our scores were reversed. He scored my math score in reading, and he scored my reading score in math.

We're still waiting for the results of his subject matter SATs....

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On 6/22/2017 at 7:02 PM, Vern Edwards said:

It's funny how we all use the word "approach" is if it referred to some definite idea or thing.

I use "approach" as a reference to an abstract idea or procedure which can (and should!) be altered by experienced reality, hence, my trepidation at applying an LPTA approa...err..."methodology", to a technical approach.  

Believing  that it is in the government's best interests to procure an approach and not a result is nonsensical and self-destructive; any properly evaluated approach  must be conducted in light of its  ability to achieve a result.   Otherwise it would be like (subjectively) evaluating  production methods in lieu of (objectively) testing the end-products.

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REA'n - The reason we would prefer LPTA over a Trade-off evaluation methodology is that we aren't willing to pay more for a better approach, or better past performance or anything else.  We just want someone who can come in and provide the service.  We do need to evaluate their key personnel and technical approach (to ensure that they can in fact do the work), but can do that on a pass/fail basis.  We also do our LPTA evaluation by starting with the lowest-priced offer and then stop when we have one that is technically acceptable, which we believe saves valuable time.  Why evaluate a bunch of offers that have no chance of winning?

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51 minutes ago, REA'n Maker said:

Believing  that it is in the government's best interests to hold a contractor to an approach and not a result is nonsensical and self-destructive....

Not necessarily. At lot depends on what you mean by "result."

Suppose that your teenage hiker has gone missing in the Columbia River Gorge. The authorities found her car parked along Hwy 30, but you don't know which trail she took into the extremely rugged terrain. The authorities called off the search after a week, but you want to hire a private party to search. You select Offeror A on the basis of its proposed search method, which you and your advisors think offers the best chance of success. The offeror will not promise to find your daughter. No one would, because no one has any idea where she might be, even whether she actually went hiking. The most any of them are willing to do is search in a particular way. (Scenario based on a real event.)

You decide to negotiate a level-of-effort contract. Isn't that a case in which you would bind the offeror to its approach, but not to a result? The only contractually specified result would be completed conduct of the search in a specified way for a specified number of days. Otherwise, what will be will be.

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