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Missing Individual Acquistion and Source Selection Plans

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The TEC is in the process of reviewing proposals and it has been discovered that though the FAR requires these plans, they were not done in advance of opening the solicitation. 

Should they be done after the fact or not at all now?

If there is a protest is this likely to cause great risk?

Would appreciate your sage thoughts.

 

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ACQUISITION PLAN

  • The FAR only requires a written acquisition plan for certain acquisitions.  If your acquisition really requires a written acquisition plan, you might get it signed simultaneous to the on-going evaluation.  I would not stop the evaluation process just for an acquisition plan.  However, if the acquisition plan is disapproved, or is approved differently than expected, you might have to cancel or amend the solicitation and re-start.

SOURCE SELECTION PLAN

  • The FAR does not require a written source selection plan for any acquisition. 

Acquisition plans and source selection plans are internal Government document that do not give rights to prospective offerors.

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28 minutes ago, ji20874 said:

The FAR does not require a written source selection plan for any acquisition

Hung up on semantics today.  The FAR may require should the agency's supplement require.  Quick look suggests that some agency supplements require a written SSP in some cases.

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Carl,

  • Good point.  The original poster said the FAR, not his or her agency's supplement.  The FAR does not require a written source selection plan, but his or her agency's supplement might.
  • When I speak of the FAR, I mean Chapter 1 of CFR Title 48.  Chapter 1 is titled "Federal Acquisition Regulation."  I see an agency supplement as part of the Federal Acquisition Regulations System, but not as part of the FAR.

Ninja,

  • Is your requirement for a written source selection plan from your agency's supplement?

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On 2/16/2019 at 5:04 AM, ji20874 said:

Acquisition plans and source selection plans are internal Government document that do not give rights to prospective offerors.

@ji20874 is generally correct. This is supported by case law.

"When rules and regulations are promulgated for the benefit of the government and no one else, the other party to a contract cannot complain if such regulations are not complied with.” (C & L Constr. Co. v. United States (C & L), 6 Cl. Ct. 791, 804 (1984))

While there is no requirement for a source selection plan or pre-established definitions for use in scoring proposals, such evaluation tools can prove useful to an agency in achieving consistency in its evaluation. (see Nexant, Inc., B-407708, B-407708.2, Jan. 30, 2013, 2013)

However, where a source selection plan exists, there is an expanding role of source selection plans in judicial review of procurements. (see Progressive Industries, Inc. v. U. S. and Irish Oxygen, Co., No. 14-1225C, December 6, 2016) 

"[the court] looks to the SSP to evaluate the rationality of the agency’s departure from its procurement plan. The court may consider whether the deviations from the SSP are reasoned departures. USfalcon, Inc., 92 Fed. Cl. at 454 (“Because the SSA relies on the evaluators working for him to follow source selection plan mandates, departures from the plan could undermine the rationality of the ultimate source selection decision.”)"

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On 2/16/2019 at 4:23 AM, Ninja said:

Should they be done after the fact or not at all now?

Ask the Source Selection Authority (and/or clearance approval authority) if they want the team to prepare one or both.

On 2/16/2019 at 4:23 AM, Ninja said:

If there is a protest is this likely to cause great risk?

No. (see cases cited above in previous post)

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Thank you one and all.

These plans are required by the Agency. However, the caselaw is very helpful is showing there is low risk in not having them.

So what I glean from the responses is that FAR 7.104-5 is not a requirement for an acquisition plan and there is no requirement for an SSP.

Again thank you all!

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Ninja,

Don't simply rely on our responses -- instead, use our responses as part of your own learning and decision-making process.  Now, having had the discussion, what do YOU say?

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Ji20874 Thanks for your note. No worries, I value the responses and I crafted a solution for the Agency. Though the litigation risk is low,  given Agency requirements we needed to do a deviation. Also, since the TEC does not have the SSP to guide them, the CO is checking in with the panel to make sure they are clear on definitions and make sure they are evaluating consistently with the RFP.

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On ‎2‎/‎19‎/‎2019 at 4:04 PM, Ninja said:

Also, since the TEC does not have the SSP to guide them, the CO is checking in with the panel to make sure they are clear on definitions and make sure they are evaluating consistently with the RFP.

Ninja,  good course of action.  Protests are lost because of improper evaluations.  The CO and others should check everything in the documentation to ensure evaluation consistency and compliance with the RFP statements.

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Ninja, two months have passed. Have you awarded the contract yet? If so, was your award protested? If not, why do you think the risk of litigation or to be clear a post-award protest is low? An acquisition plan demonstrates the agency intentionally considered what it's buying, why it's buying it and how it intends to buy it. A source selection plan demonstrates the agency's intentional thought process to compete, evaluate and award the contract. If your award decision is protested and your file lacks both an acq plan, a source selection plan or both then the agency's credibility is undermined in the very least. If protested, to the extent that the agency didn't evaluate proposals the way it advertised it would, your Office of Counsel is likely to recommend you take corrective action. If this happens you might consider intentionally thinking through how you intend to evaluate proposals and then either decide to cancel the RFP and resolicit if you change your instructions, evaluation criteria or both, or do what you said you'd do to evaluate proposals and reevaluate. Protests are lost mostly due to poor documentation or because the government failed to evaluate the way it advertised it would in the RFP or both. Forgive me for preaching but in the end, be intentional with what you do. Know your why. Don't just check the boxes. If you don't have an acq plan or a source selection plan by now despite your agency requirements, don't just create one now for the optics of the file. Who cares about auditors?! What you really need to care about is passing the CNN test or being able to testify to a judge and have both the media and the courts decide the government acted legally and reasonably. 

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Thank you GREgariousOne. 

There is always a risk of protest. The probability of losing the protest based on missing internal documents which are for the benefit of the agency is low based on the case law. Losing the protest would be high if the proposals were not evaluated as stated in the RFP and the process and decision were not documented. That is not the case. 

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