Jump to content
The Wifcon Forums and Blogs

Recommended Posts

FAR 13.106-2(b)(4) is an area of interest for me because it seems almost too easy. The problem is, not many people have done it that I'm aware of, and there's not a lot of guidance I can find online. I'm curious to know the execution method.

(4) For acquisitions conducted using a method that permits electronic response to the solicitation, the contracting officer may—

  • (i) After preliminary consideration of all quotations or offers, identify from all quotations or offers received one that is suitable to the user, such as the lowest priced brand name product, and quickly screen all lower priced quotations or offers based on readily discernible value indicators, such as past performance, warranty conditions, and maintenance availability

Assuming you are using 52.212-2 and leaving the provision as-is (filling in price & technical/quality as the factors), and you're looking at standard product data readily available from vendors, do you basically show quotes to the user and ask "Which one do you want?" and make the award?

I'm guessing when it speaks about "lowest priced brand name product" does this assume a brand name or equal requirement? Or can they simply select the brand they think best meets the governments needs? 

This is interesting to me because it reads as though the Government can just request a brand name "or equal" and at the end of the day, just select the brand name product anyways without having to deal with the nuances of brand name justifications.

In summary -- I have two questions.

1. Has anyone selected a product based off the lowest priced brand name when other products were submitted?
2. We all have had users that like a product simply because they like it and have worked with it before. If a user said "I've worked with this brand before, and it's most suitable to me because I know the quality will meet my needs," is that sufficient documentation?

Link to post
Share on other sites
  1.  (edited) No experience.

  2. No but do you think this would if received from a user if they meant it?   “I have reviewed all the quotations received, the pricing and the technical material provided inclusive of warranty and other information.  Based on experience on ease of use of the needed product, availability of local maintenance to support warranty and after warranty work, and general knowledge gained from reviewing available market place information on how each offered item would standup to the intended use I recommend award to XXXXXYYYYYZZZZZ.”

 

Opps forgot this thought - In the context of your background to your specific questions where did the "or equal" come from?  I can not quite make the connection to references in FAR Part 13 regarding brand name consideration when a general product is stated in a solicitation - "send me quotes on lawn mowers"  and brand name or equal when it is a specified requirement of the solicitation "Send me quotes on XYZ lawn mower or lawn mowers that are equal in X (motor size, deck size, rider, push, blah, blah blah).

Link to post
Share on other sites
On 4/21/2018 at 6:01 PM, C Culham said:

In the context of your background to your specific questions where did the "or equal" come from?  I can not quite make the connection to references in FAR Part 13 regarding brand name consideration when a general product is stated in a solicitation - "send me quotes on lawn mowers"  and brand name or equal when it is a specified requirement of the solicitation "Send me quotes on XYZ lawn mower or lawn mowers that are equal in X (motor size, deck size, rider, push, blah, blah blah).

Usually our "users" aren't technical experts, just users of the machine. What I'd like to do is describe what I want the item to do as opposed to specific specifications (engine size, speed, etc). "We want to mow 10 acres of Kentucky Bluegrass. The mower must cut near, but not damage trees."
So offerors will send us a bunch of items that meet our needs, John Deere being one of them.

The customer knows about the quality of John Deere, and for the sake of this requirement, we'll argue that there's a local John Deere maintenance shop nearby. Note that we didn't ask for a brand name product.

Would we then be able to say "The user is familiar with John Deere mowers and acknowledge their ease of use. Additionally, they know how to maintain John Deere mowers themselves, so equipment not covered under the warranty could be easily repaired. Additionally, the mower offered by John Deere meets the requirements of the Government because it can be used to mow 10 acres, and contains a guard to protect trees. I've reviewed all other lower priced quotations for value indicators and determine that none exist that warrant consideration to another offeror. Therefore, John Deere's quotation contains the lowest priced brand name product that is suitable to the user."

Would that award basis be fair, especially considering we'd never asked for a brand name product in the first place?

Link to post
Share on other sites
On ‎4‎/‎25‎/‎2018 at 2:42 PM, ContractingCowboi said:

Would we then be able to say "The user is familiar with John Deere mowers and acknowledge their ease of use. Additionally, they know how to maintain John Deere mowers themselves, so equipment not covered under the warranty could be easily repaired. Additionally, the mower offered by John Deere meets the requirements of the Government because it can be used to mow 10 acres, and contains a guard to protect trees. I've reviewed all other lower priced quotations for value indicators and determine that none exist that warrant consideration to another offeror. Therefore, John Deere's quotation contains the lowest priced brand name product that is suitable to the user."

Would that award basis be fair, especially considering we'd never asked for a brand name product in the first place?

Emphasis Added:

This would not work. It would be protested and lose. The problem with this is that we asked for a mower which could cut 10 acres and has protection for trees. If longest warranty available and ease of maintenance are not to be evaluated (5 years and closest available repair shop/average time for maintenance), then it goes to lowest price, after it is determined that the mower can cut 10 acres and has something that covers the blades from cutting into trees. Those are the only things considered in the evaluation. "Suitable to the user" applies to every commercial mower in the market and familiarity is not a usable factor, because It restricts competition.

What you are describing above is a trade-off process, which can be done in this situation. The problem with that is the level of documentation required to purchase a lawn mower (commercial item). It completely ignores the purpose of FAR Part 12 & 13.

The way I view "Lowest Price Brand Name Product" here is as a TORO, John Deere, Kubota, Craftsman, etc. If conducted as a "Brand Name or Equal" solicitation, it should request a John Deere Model XXXX, but must list those "salient physical, functional, or performance characteristics (FAR Part 11.104(b))."

Link to post
Share on other sites
On 4/21/2018 at 4:45 PM, ContractingCowboi said:

After preliminary consideration of all quotations or offers, identify from all quotations or offers received one that is suitable to the user, such as the lowest priced brand name product, and quickly screen all lower priced quotations or offers based on readily discernible value indicators, such as past performance, warranty conditions, and maintenance availability

 

7 hours ago, Constricting Officer said:

What you are describing above is a trade-off process, which can be done in this situation. The problem with that is the level of documentation required to purchase a lawn mower (commercial item). It completely ignores the purpose of FAR Part 12 & 13.

I quoted FAR Part 13 verbatim, though, so I don't know how it ignores the purpose of it. 13 allows the CO to select an offer "suitable to the user," then look at lower priced quotes other than the brand name, see if there's any value indicators, and determine whether those indicators warrant selecting a different product.

7 hours ago, Constricting Officer said:

If longest warranty available and ease of maintenance are not to be evaluated (5 years and closest available repair shop/average time for maintenance), then it goes to lowest price, after it is determined that the mower can cut 10 acres and has something that covers the blades from cutting into trees. Those are the only things considered in the evaluation. "Suitable to the user" applies to every commercial mower in the market and familiarity is not a usable factor, because It restricts competition.

I disagree.  Look at FAR 12.602(b) -- "For many commercial items, the criteria need not be more detailed than technical (capability of the item offered to meet the agency need), price and past performance. Technical capability may be evaluated by how well the proposed products meet the Government requirement instead of predetermined subfactors. Solicitations for commercial items do not have to contain subfactors for technical capability when the solicitation adequately describes the item’s intended use. A technical evaluation would normally include examination of such things as product literature, product samples (if requested), technical features and warranty provisions."

FAR 12.602(c) just says to pick the most advantageous quote and document your rationale, so in a trade-off, you could really simplify your documentation.

We described the mower's intended use -- Cut 10 Acres, protect trees. TORO, John Deere, and Craftsman submit quotes with their standard commercial product literature. We evaluate the items on how well they meet our needs. The user argues (subjectively) that John Deere's product accomplishes our requirement better than the others, and is most suitable to them because of [insert any reason related to the technical features the offerors provided and any other reasonable basis]. We have broad discretion of using the technical data offerors provide us.

I think what I'm asking here is that you have this discretion if 13.106-2(b)(4), what would be the best way of going about exercising it? Looking at standard commercial data and picking an item? Requesting a brand name or equal item? I'm looking for simplicity.

Link to post
Share on other sites
44 minutes ago, ContractingCowboi said:

I think what I'm asking here is that you have this discretion if 13.106-2(b)(4), what would be the best way of going about exercising it? Looking at standard commercial data and picking an item? Requesting a brand name or equal item? I'm looking for simplicity.

I think this discussion might help you: 

See in particular ji20874's comments, in which he/she discusses trade-offs under FAR 13.1. (His/her responses may have been more appropriate for this post than for mine.)

Link to post
Share on other sites
33 minutes ago, FrankJon said:

See in particular ji20874's comments, in which he/she discusses trade-offs under FAR 13.1. (His/her responses may have been more appropriate for this post than for mine.)

I love that thread- it's one of the discussions that got me into FAR part 13 and simplifying processes. I typically do these comparative evaluations whenever I'm in a Part 13 scenario. However, my bigger concern is that while doing comparative evaluations, my end users struggle with evaluating "quality." They confuse it by saying they've worked with a certain brand before, they know the quality is good, and it's suitable for them.

Could you or your technical team (while doing the comparative evaluation) identify a certain brand as more suitable to the user simply because they are more familiar with the product? 

I'll amend the question a bit here-- let's say they do follow FAR 13.106-2(b)(4) and fairly consider all quotes. We'll argue the 2 best quotes on paper are John Deere (higher priced) and Craftsman (low priced). Let's say the user has used John Deere and Craftsman in the past, but different models of mowers are being offered. The user hated the quality of Craftsman because it constantly needed minor repairs or maintenance (but the repairs/maintenance was free of cost). Can we select John Deere as the most suitable quotation?

It's mostly the brand that played a difference. The models offered are different than the models that the user has experience with. Is this allowable?

Sorry if I keep moving the goalpost, I'm trying to find a good scenario for the use of this authority.

Link to post
Share on other sites
19 minutes ago, ContractingCowboi said:

I typically do these comparative evaluations whenever I'm in a Part 13 scenario.

Just be sure to distinguish comparative evaluations and trade-offs under FAR 13. It seemed to me that you're talking about trade-offs in this thread.

21 minutes ago, ContractingCowboi said:

Could you or your technical team (while doing the comparative evaluation) identify a certain brand as more suitable to the user simply because they are more familiar with the product?

I don't know the answer for sure, but I suspect GAO would find this to be an arbitrary distinction, and the government's award would not withstand scrutiny. If I were the CS, I would make my customers point to objective characteristics associated with each brand and describe why one is better than the other. I wouldn't allow "familiarity" to suffice as a rationale, but there are other ways to articulate this that would pass the smell test.

Link to post
Share on other sites
14 hours ago, ContractingCowboi said:

Could you or your technical team (while doing the comparative evaluation) identify a certain brand as more suitable to the user simply because they are more familiar with the product? 

I'll amend the question a bit here-- let's say they do follow FAR 13.106-2(b)(4) and fairly consider all quotes. We'll argue the 2 best quotes on paper are John Deere (higher priced) and Craftsman (low priced). Let's say the user has used John Deere and Craftsman in the past, but different models of mowers are being offered. The user hated the quality of Craftsman because it constantly needed minor repairs or maintenance (but the repairs/maintenance was free of cost). Can we select John Deere as the most suitable quotation?

No. If 1102's allowed our customers to have continually purchase something because they were more familiar with it, we would never comply with CICA.

"Suitable to the user" is defined in your solicitation. If 60" deck and tree protection is it, both mowers are "suitable to the user" in your scenario. Both FAR 13.106-2(b)(4) (i) & (ii) state "lowest price." The customer may say they want a John Deere, but what contracting says (concerning CICA) is we want a mower that includes x, y and z.

Link to post
Share on other sites
Guest Vern Edwards

 

1 hour ago, Constricting Officer said:

Let's say the user has used John Deere and Craftsman in the past, but different models of mowers are being offered. The user hated the quality of Craftsman because it constantly needed minor repairs or maintenance (but the repairs/maintenance was free of cost). Can we select John Deere as the most suitable quotation?

Why not? Can't you select John Deere based on past performance?

Link to post
Share on other sites

Consumer reports is a good resource for trade off considerations of commercial products.  Even if they don’t have the exact same models that you are considering, they have brand-name reviews for reliability and service. Lawnmowers are often reviewed.

Link to post
Share on other sites
1 hour ago, Vern Edwards said:

Why not? Can't you select John Deere based on past performance?

Vern, I believe you could. My concern here is how much time should be put into purchasing a $3K or even $20K lawn mower/tractor. SAP provides the ability to evaluate on price alone or price and other factors, but it comes back to lowest price. Picking the high priced item, based on any factor(s) or sub-factors used, is a trade-off. A customer needs a mower to cut grass and the color of it is irrelvant.

Link to post
Share on other sites
Guest Vern Edwards
13 minutes ago, Constricting Officer said:

Vern, I believe you could. My concern here is how much time should be put into purchasing a $3K or even $20K lawn mower/tractor. SAP provides the ability to evaluate on price alone or price and other factors, but it comes back to lowest price. Picking the high priced item, based on any factor(s) or sub-factors used, is a trade-off. A customer needs a mower to cut grass and the color of it is irrelvant.

Nonsense. A CO who cannot justify the purchase of a John Deere lawnmower over a less similar but less expensive Craftsman in the circumstances that have been described should find other work. I could write that justification in 30 minutes, without lying, and it would survive any protest, not that you're likely to get one from a mower dealer. What... do you think the only things COs need to know how to do is quote the FAR?

I'm not going to tell a client organization that its concerns are not important unless they are so exaggerated as to be incredible and the amount of money involved is very great.

"Constricting" officer, indeed.

Link to post
Share on other sites
33 minutes ago, Constricting Officer said:

Picking the high priced item, based on any factor(s) or sub-factors used, is a trade-off. A customer needs a mower to cut grass and the color of it is irrelvant.

Simply choose a functional feature (i.e., not color) that is different between the two, explain how the feature of the Deere better suits your customer's requirements, and state why that difference compensates for the price differential. As long as it's reasonable and reasonably-documented, it will be upheld.

Link to post
Share on other sites
Guest Vern Edwards

It's not like you're buying a bunch of such mowers. You're buying one. (Is that right?) How hard can it be to listen to the client's explanation for why they like one model over another and turn that into a justification? It's reasonable for people who have to use a piece of equipment to want the one that best facilitates the performance of their work. Contracting folk shouldn't take them to task unless what they want is clearly unreasonable. It's not like they're on the take from John Deere. You don't want something that in your experience has caused you a lot of headaches.

Link to post
Share on other sites
1 hour ago, Constricting Officer said:

SAP provides the ability to evaluate on price alone or price and other factors, but it comes back to lowest price. Picking the high priced item, based on any factor(s) or sub-factors used, is a trade-off.

It sounds like you're under the impression you cannot make a purchase based on tradeoffs under SAP.  That would be incorrect.

Link to post
Share on other sites

 

9 minutes ago, jwomack said:

It sounds like you're under the impression you cannot make a purchase based on tradeoffs under SAP.  That would be incorrect.

That is not the impression I am under. I understand that LPTA and Trade-Off procedures can be conducted under 13. What I am presenting is the idea of needing a machine to cut grass should not be made into something complex (such as trade-offs).

13 minutes ago, Vern Edwards said:

It's not like you're buying a bunch of such mowers. You're buying one. (Is that right?) How hard can it be to listen to the client's explanation for why they like one model over another and turn that into a justification? It's reasonable for people who have to use a piece of equipment to want the one that best facilitates the performance of their work. Contracting folk shouldn't take them to task unless what they want is clearly unreasonable. It's not like they're on the take from John Deere. You don't want something that in your experience has caused you a lot of headaches.

The OP is the only one with that answer. I believe the mower situation was added as an example somewhere down the discussion.

I understand the need to be able to document and do so well. If there is one and only one item that is one thing. The agency I work for has a lot of sole-source acquisition packages come in. I have seen the reasoning provided to justify one and only one source be as follows:

- "We really like the person working here. She is part of the family (Janitorial)."

- "We are use to reviewing reports we receive from the current contract holder and different formats wouldn't work (Cardiac Monitoring)."

It is not about "constricting" what is needed, it is about questioning what is wanted and why. A true need is always approved, but when it is only the dislike of change it is not justifiable.

That is the case I am referring too.

Link to post
Share on other sites
Guest Vern Edwards
1 minute ago, Constricting Officer said:

It is not about "constricting" what is needed, it is about questioning what is wanted and why. A true need is always approved, but when it is only the dislike of change it is not justifiable.

Many of us can point to unjustified requests for sole source acquisition. I didn't think that was the issue here. As I understood the scenario, the agency solicited competitive quotes and the requiring activity wanted to choose a particular higher-priced alternative on grounds that the lowest priced item was undesirable based on their experience with another product of the manufacturer. That is not a sole source acquisition. And dislike of change can be a valid ground for preference and payment of a price premium if change comes at a cost.

Link to post
Share on other sites
13 hours ago, Vern Edwards said:

Many of us can point to unjustified requests for sole source acquisition. I didn't think that was the issue here. As I understood the scenario, the agency solicited competitive quotes and the requiring activity wanted to choose a particular higher-priced alternative on grounds that the lowest priced item was undesirable based on their experience with another product of the manufacturer. That is not a sole source acquisition. And dislike of change can be a valid ground for preference and payment of a price premium if change comes at a cost.

Vern, this is exactly it. Just replace the lawnmower with medical equipment. I didn't want to get into the weeds on what the stuff does, but it's very commercial and under the SAT. I'm on the same page as you in this discussion, just receiving a lot of pushback. 

it was competed, all offers are being fairly considered, but a particular brand meets their needs the best. They are great at explaining the brand, but can't give any past performance information on the other brands. So I'm having them answer simple technical questions. Why is this one better? What can it do that others can't? What makes it easier? The big issue I have with them is that they've "used this at X base and it was incredible compared to what we've got now." Their main argument is that it is easy to use, speedy, and never broke down. I'm having a hard time getting an answer to "How do you know these other brands aren't as good?" On paper they are.

I believe them that their preferred item is the best based off their preference, and it's suitable to them. The price difference is small, only about $2,000 in total price. So if I can get an answer pertaining to whether or not the other brands are not equal, I can make the award easily. But, if I am able to simply just state that the item is suitable to the user based on their personal experience with the product, I'm all for that as well. 

I'll make the price tradeoff determination, no problem, the prices are all very similar.

The first thing I'm trying to determine is if I'm interpreting the FAR correctly, and I think this discussion is helping, even though there are a few disagreements. But I believe we're on the right track.

I figure if I can learn to execute it this one time (which is why I'm asking for advice), I can do it for just about all of their medical equipment and streamline it.

Link to post
Share on other sites
20 hours ago, FrankJon said:

CICA doesn't apply to SAP. FAR 6 implements CICA requirements. 6.001 excludes FAR 13 from applicability. 

Since this is a beginners forum I think it is worthwhile to clarify that this statement is not exactly true.

CICA--10 U.S.C. 2304 and 41 U.S.C. 253 [3301]--applies to FAR Part 13 (SAP), but provides exceptions that only require the head of an agency to promote competition to the maximum extent practicable. (41 U.S.C. 1901, and 3305; and 10 U.S.C. 2302b)

Link to post
Share on other sites
20 hours ago, Constricting Officer said:

Vern, I believe you could. My concern here is how much time should be put into purchasing a $3K or even $20K lawn mower/tractor. SAP provides the ability to evaluate on price alone or price and other factors, but it comes back to lowest price. Picking the high priced item, based on any factor(s) or sub-factors used, is a trade-off. A customer needs a mower to cut grass and the color of it is irrelvant.

If you were going to buy a lawnmower (car, truck, car wax, groceries, power tools, etc.)  for yourself, you likely consider your functional needs, different brands , read labels, reviews, consumer reports, perhaps a Google Search for certain purchases, etc., then make a trade-off. Many people do this every day.  If it were your own money, how much time and effort would you put into it? If you were a buyer for a City or even a for a business, how much time would you put into it? 

Are you asking that, since it’s not your money,  how much time should you take to select a minor purchase? 

It’s not rocket science.  

Link to post
Share on other sites
Guest
This topic is now closed to further replies.
×
×
  • Create New...