Jump to content
The Wifcon Forums and Blogs
Guardian

Setting Ground Rules with the Evaluation Team

Recommended Posts

While waiting for submission of task order proposals, I sent out an invite to the members of the evaluation team and legal advisor exactly one week in advance of the kick-off meeting for the TET.  One of the recipients, who is acting in an advisory role, emailed me over the weekend stating that he would not be there on time because of a family commitment.  I rarely, if ever, take issue with an individual that is courteous enough to give notice of a scheduling conflict well in advance.  I returned to the office today to a series of messages from the chairperson of the evaluation team via a texting platform.  She complained that she did not understand why her team had to come in for a full day and insisted that it would be best if they could conduct the evaluation remotely.  Per the source selection plan, we are conducting a consensus evaluation.  As I already told her and her team, I am happy to negotiate the time, place and conditions of the evaluation at our initial meeting.  I took considerable efforts in preparing a package with instructions and evaluation worksheets for the team, including an agenda for the day.  My first response to her request was to say that everyone had accepted the meeting invite and that her request was late in coming (the day before the kick-off meeting), in other words, this was never an issue before today.  I tried to calm tensions by explaining that I would get them started on an initial evaluation to ensure that they were conducting it and writing their supporting documentation properly.  I tried to make the point that this would be the most efficient way to proceed.  About a half an hour after we exchanged these messages, the chairperson sent an email out to the entire list of recipients on my invite, saying that they should only plan to stay through step 5 on the agenda (before the evaluation of the first offeror) and then adjourn, after which time they could go their separate ways and work remotely.  I read this not believing that someone in an appointed position would have the audacity to send out such instruction in direct contradiction to what I just told her.  Perhaps that was the problem, the fact that I did not communicate more like the Captain in Cool Hand Luke.  But I am here to build a team and relationships. 

I am not sure how to define her actions: passive aggressive or just blatant "don't give a crap that you're the CO"  disrespect.  As a senior CO, I have been at this long enough that I've seen quite a bit, but this takes the cake in terms of a stakeholder thumbing her nose at the CO.  My director wrote the evaluation team and chairperson a reply reminding them that the CO controls the meeting format and schedule.  Tomorrow, I will stand in front of my team and address them, as planned, despite this woman's actions; however, I want to address this individual's lack of professionalism and disrespect.  I am not sure if this is so much a contracting question, as it is a question on how to best promote the concept of "working-well-with-others," when it seems only some are onboard. Does anyone have any sage advice or an idea as to how one would handle a similar situation?   

Share this post


Link to post
Share on other sites
26 minutes ago, ji20874 said:

Crucial Question:  Are you (the contracting officer) also the selecting official?  YES   NO

Since this is a solicitation to award a task order off a GWAC, I am conducting it under the authority of part 12 and subpart 16.5.  However, absent any guidance under 16.5 about evaluation teams, I have deferred to the rather general language provided under 15.303 and consider myself (in addition to being the CO), the Source Selection Authority for this acquisition.  FAR 15.303(b) states:

The source selection authority shall-

           (1) Establish an evaluation team, tailored for the particular acquisition, that includes appropriate contracting, legal, logistics, technical, and other expertise to ensure a comprehensive evaluation of offers;

So then, my answer to your question is "yes," I, the CO, am also the selecting official.  I will ask the TET to make their selection and document their reasoning in strict accordance with the evaluation criteria.  However, I ultimately reserve the right to award to the offeror that represents the best value to the Government if I determine that their documentation does not support their "recommended" selection.

Share this post


Link to post
Share on other sites

If I had set the ground rules and established security of the proposals (no taking them from the evaluation area?) , then I d have a personal face to face talk with the chairperson that I appointed.  I would remind her who she is working for on the evaluation. Your director has put it in writing, who is responsible for the task order evaluation and award.

 I’d explain to her that she is working for me and that she can be replaced if she’s not willing to accept that. 

More than once I had to send a Lt. Colonel or other team member home after they announced at the beginning of an evaluation that they couldn’t stay for the entire evaluation. Those were formal, Part 15 source selections. I wasn’t ugly about it, just reiterated the rules. The person would leave each time  and, as far as I know, they didn’t object or go above me. 

This isn’t a source selection but you are the KO and decision making official. 

P.S. , I wasn’t the KO either time but was in charge of the Evaluation process, working directly for the KO. 

Share this post


Link to post
Share on other sites

Guardian,

I recommend caution and diplomacy, rather than being bull-headed.

You are not using FAR part 12 in conjunction with §16.505.  When you use part 12, it is in conjunction with part 13, 14, or 15 (see FAR 12.102(b)).  When you use §16.505, you use it by itself.  You are working under §16.505 and the already-awarded multiple-award IDIQ contracts (note: those contracts may have been awarded using FAR part 12 in conjunction with part 13, 14, or 15, but orders are awarded using §16.505).

You speak of the technical evaluation team making the selection and documenting it.  But they should only do the evaluation (and document the evaluation) — the selecting official (you, it seems) should make the selection (and document it).

FAR 16.505(b)(1)(ii) clearly says that FAR subpart 15.3 procedures do not apply to your procurement, so you should not quote from 15.303(b) to make any point.

I think you should try to be peaceable.  As you said, you’re here to build a team and relationships.  Best wishes!

Share this post


Link to post
Share on other sites

Unless the evaluation team is composed of seasoned veterans and every member knows precisely how to do the job, individual evaluations done remotely don’t work well.  The advantage of a team based evaluation with all members physically present is that the CO, legal advisor, and contract officer managers can instruct and give guidance.  As the CO you can observe, critique, and share examples of good versus ones that need work.  Everyone learns what’s required together.  And you can make adjustments in what individual evaluators wrong in a real time mode.  

If you want to see frustration, get a group of inexperienced evaluators and have them do the job in isolation.  Then later someone in the review chain looking at the selection documents will say it’s not acceptable and the team is required to reconvene.

I would approach it with the woman and the rest of the team as the process must be team based.  The final must reflect a consensus and that can’t be done properly unless members do their jobs first individually.  You can explain to the woman it’s her job to facilitate consensus (or yours if that’s better).

i think I know where you work from this and other posts.  If I’m correct, you are in a good office with lots of individual responsibility and the ability to think and work independently.  I have the upmost respect for your director.  He knows his stuff better than just about anybody in that position.

Share this post


Link to post
Share on other sites

I still recommend a one on one discussion. No need to address the lack of direction and disrespect in front of the other members of the team. 

But if the person can’t agree to follow your direction, you should replace her.  

Thats not being bull headed. 

Share this post


Link to post
Share on other sites
13 hours ago, ji20874 said:

You are not using FAR part 12 in conjunction with §16.505.  When you use part 12, it is in conjunction with part 13, 14, or 15 (see FAR 12.102(b)).  When you use §16.505, you use it by itself.  You are working under §16.505 and the already-awarded multiple-award IDIQ contracts (note: those contracts may have been awarded using FAR part 12 in conjunction with part 13, 14, or 15, but orders are awarded using §16.505).

I understand your point.  12.102(b) says:

Contracting officers shall use the policies in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in Part 13, Simplified Acquisition Procedures; Part 14, Sealed Bidding; or Part 15, Contracting by Negotiation, as appropriate for the particular acquisition.

However, it does not say "shall use the policies in this part only in conjunction with...."

In the conforming contract from the agency administering the IDIQ (GWAC), the guidance states:

(The following clause only applies to task orders that are for the acquisition of supplies or services that meet the definition of commercial items at FAR 2.101. They will be incorporated in full text into individual orders, as applicable.)

FAR Clause 52.212-4, Contract Terms and Conditions Commercial Items (Jan 2017),

I am not sure why the administering agency is asking the OCO to incorporate this clause in full text when section 12.303 prescribes (to the maximum extent practicable) use of the SF1449, which allows for IBR clause 52.212-4 via block 27.  IBR or in full text, either way, I don't think it makes a difference.  Moreover, the commercial items clause does not seem to flow down from the contract, if the guidance recommends the OCO include it at the order level. 

But my question is this—how am I not operating under the authority (at least in part) of FAR part 12, when we are incorporating the standard commercial item terms and conditions into the order, be it through guidance or prescription? 

Share this post


Link to post
Share on other sites

If the parent multiple-award IDIQ contracts were for commercial items, then the contracting officer for those contracts already used FAR part 12 for the parent multiple-award IDIQ contracts (in conjunction with part 13, 14, or 15).  For placing an order, you use §16.505 and the ordering instructions included in the parent multiple-award IDIQ contracts.

If you re-type FAR 52.212-4 in full text into the order, it is because the parent IDIQ multiple-award contracts say so, not because FAR part 12 says so.  It should simply flow down from the parent contracts without having to be mentioned in the order, but you have to follow the ordering instructions for the parent contracts, even if they are stupid.  A requirement to re-type FAR 52.212-4 in full text in an order is stupid.  BTW, I don’t read the text you quoted as requiring you to re-type FAR 52.212-4 in full text into your order — to me, as long as it is clear that the item is a commercial item, the clause is automatically incorporated into the order.  The statement is inartfully written, but that seems to me as the only reasonable way to read it.  

Share this post


Link to post
Share on other sites

1 outwardly, play nice to get the evaluation done efficiently and correctly

2 behind the scenes, use your or someone else's authority to make sure this person deeply regrets it and others notice a ripple

3 you might have to use your superiors or superiors in a different branch/division to get this done correctly

4 make sure the shoe drops after the selection process is complete

Share this post


Link to post
Share on other sites

In my opinion, a requirement to re-type FAR 52.212-4 in full text in an order is stupid.

If it is necessary to re-state FAR 52.212-4 in the task order at all, it can be incorporated by reference -- see the matrix at FAR 52.301.

BTW, I don't think the NITAAC contract that Carl referenced (or the contract quoted by the original poster) requires that FAR 52.212-4 be re-typed in the order in full text.  I think the mere fact that the order is for a commercial item activates the text in the parent IDIQ contracts, and the clause is automatically applicable to (incorporated into) the resulting order with no specific action by the contracting officer.  But even if I am wrong in this, I still have to believe that the clause can be incorporated by reference -- it doesn't have to be re-typed in full text (72 paragraphs, 185 lines, 2,325 words, and 15,081 characters) -- see the matrix at FAR 52.301, where there is a "YES" in the "IBR" column.

Share this post


Link to post
Share on other sites

“Copy” and “paste”...

Share this post


Link to post
Share on other sites
3 hours ago, ji20874 said:

In my opinion, a requirement to re-type FAR 52.212-4 in full text in an order is stupid.

In the instance of both this thread and my reference to CIO SP3 ji's referenced to "stupid" is misplaced and does not consider the facts.  

A GWAC that by the OP's references and my specific reference to CIO SP3 is a GWAC that was awarded as non-commercial item parent IDIQ (SF-33) but allows for commercial item Task Orders to be issued against the parent.   The parent IDIQ does not carry 52.212-4 thereby allowing its use by implied applicability or IBR in a Task Order  as a clause but rather allows for a Task Order to incorporate 52.212-4 if appropriate and therefore must be "incorporated in full text into individual orders".   

As to putting the 52.212-4 IBR or full text, and putting the language of the contract aside that requires it to be full text,  FAR 52.212-4 can be a tailored clause.   It is not stupid to therefore require the clause in full text so that a contractor who gets the Task Order is fully aware that the clause is either tailored or not.  Crazy position?  I think not as there are forum participants that opine that 52.212-4 should not be put into any solicitation/contract in the exact text as the clause resides in the FAR as  because of the exact situation of tailoring and the fact that tailoring or not is to be based on specific market research.  Stated another way the requirement of full text gives wide latitude to the use of 52.212-4 rather than dictating that 52.212-4 must be used as exactly found in the FAR, IBR or otherwise.  A perfect example of the practice of allowing discretion as provided for in both FAR Part 12 and FAR Part 1.

Additionally the Matrix's use of IBR is neither definitive nor does its reference to IBR demand how a clause is placed in an award document and that fact has been argued in the Forum extensively. 

45 minutes ago, joel hoffman said:

“Copy” and “paste”...

Exactly!   The placement of 52.212-4 in a Task Order, if used exactly in the FAR, would take less than 20 seconds to do so.  How do I know I just cut and pasted the clause onto a blank page from the Acquisition website to gauge how long it might take.  

 

PS - A complete review of this thread with point that ji is the one that coined "re-type".  Neither I nor the OP used the term but rather referenced specific contract language that states that 52.212-4 will be incorporated in "full text".

Now back to sage advice!

Share this post


Link to post
Share on other sites

To clarify, “select”, “copy” and “paste” is more accurate. Good explanation of the background, Carl. 

Share this post


Link to post
Share on other sites
11 hours ago, C Culham said:

It is not stupid to therefore require the clause in full text so that a contractor who gets the Task Order is fully aware that the clause is either tailored or not.  Crazy position?  I think not as there are forum participants that opine that 52.212-4 should not be put into any solicitation/contract in the exact text as the clause resides in the FAR as  because of the exact situation of tailoring and the fact that tailoring or not is to be based on specific market research. 

If 52.212-4 was IBR , then it should be evident to the contractor that it has not been tailored.  Personally, I don't have a problem incorporating key clauses in full text, even if the standard practice is to IBR.  The way I look at it is offerors should be reading the complete clause either way; providing them the full text ensures they don't have to look it up or risk referencing an older version.  I also think it's perhaps helpful to small businesses that don't have in-house counsel.  Either way is acceptable.  I tend to be a fundamentalist in some respects.  So then, I initially incorporated the clause in full text as the conforming contract instructed.  The reviewer told me that was extraneous and to instead IBR.  I don't get too hung up on those things.  Again, I think either way is fine.

Share this post


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

providing them the full text ensures they don't have to look it up or risk referencing an older version.

Don't assume that the government will get the right clause in the order/contract.  I am currently dealing with a solicitation where the government incorporated the version of a clause that had been superseded at the time the solicitation was issued and another solicitation where the government incorporated a clause that had been eliminated two years earlier.  In both cases, the contractor is trying to educate the government on how to conduct a competitive procurement.

Share this post


Link to post
Share on other sites

On the original topic, is there a single person within the requiring activity who is in charge of the requirement, or will receive the goods or services? Assuming there is no actual program manager or functional service manager there is still likely someone in charge, maybe a chief of staff or something. I would ask the director to approach this person and ensure they understand that if they desire a contract they must fulfil their role in the acquisition process (e.g. provide funding, the evaluation team, required approvals, etc.) and let them handle any issues with the evaluation team chairperson: "If you want a contract for this requirement you need to provide a dedicated evaluation team from [date] to [date]. If they are unavailable on those dates or do not stay to complete the evaluation then contract award will be delayed based on how long it takes to reschedule them, bearing in mind we have other source selections on the schedule for other customers as well. If you no longer need a contract to support this requirement let me know ASAP."

Sometimes it seems like the contracting office wants the contract more than the requiring activity/customer...

Share this post


Link to post
Share on other sites
2 hours ago, Guardian said:

If 52.212-4 was IBR , then it should be evident to the contractor that it has not been tailored.  Personally, I don't have a problem incorporating key clauses in full text, even if the standard practice is to IBR.  The way I look at it is offerors should be reading the complete clause either way; providing them the full text ensures they don't have to look it up or risk referencing an older version.  I also think it's perhaps helpful to small businesses that don't have in-house counsel.  Either way is acceptable.  I tend to be a fundamentalist in some respects.  So then, I initially incorporated the clause in full text as the conforming contract instructed.  The reviewer told me that was extraneous and to instead IBR.  I don't get too hung up on those things.  Again, I think either way is fine.

There is a clear policy preference in the FAR for incorporation by reference. FAR 52.102(a) states:
 

Quote

 

Provisions and clauses should be incorporated by reference to the maximum practical extent, rather than being incorporated in full text, even if they-

           (1) Are used with one or more alternates or on an optional basis;

           (2) Are prescribed on a “substantially as follows” or “substantially the same as” basis, provided they are used verbatim;

           (3) Require modification or the insertion by the Government of fill-in material (see 52.104); or

           (4) Require completion by the offeror or prospective contractor. This instruction also applies to provisions completed as annual representations and certifications.

 

 

Share this post


Link to post
Share on other sites
1 hour ago, Don Mansfield said:

There is a clear policy preference in the FAR for incorporation by reference. FAR 52.102(a) states:
 

 

That way both the government contract administrators and the contractor can be equally clueless concerning what the  clauses say-mean-require and which version of a clause is in the contract.     

Share this post


Link to post
Share on other sites

I was really being serious above...

The inclusion of clauses by reference may well have been (somewhat) practical for the purpose of saving paper,  publishing and mailing costs and filing space, when printing,  mailing and paper filing of solicitations and contracts are/were the standard methods. 

However, with electronic contracting methods, those reasons are largely inapplicable. 

It shouldn’t take a law clerk or paralegal to find all the clauses in the versions that were applicable at the time of the solicitation and award. They should be easily and immediately available for anyone to read and keep current with all the applicable contract requirements.
 

This is another example of the FAR not keeping up with current technology concerning electronic contracting. 

Share this post


Link to post
Share on other sites
13 hours ago, joel hoffman said:

I was really being serious above...

The inclusion of clauses by reference may well have been (somewhat) practical for the purpose of saving paper,  publishing and mailing costs and filing space, when printing,  mailing and paper filing of solicitations and contracts are/were the standard methods. 

However, with electronic contracting methods, those reasons are largely inapplicable. 

It shouldn’t take a law clerk or paralegal to find all the clauses in the versions that were applicable at the time of the solicitation and award. They should be easily and immediately available for anyone to read and keep current with all the applicable contract requirements. 

To further hijack this thread----

The IBR rule in the FAR Clause Matrix is an anachronism.   In practice, only the 52.252 clauses must be in full text.   Nothing else.  Especially not 52.212-3.

I typically maximize IBR for commercial orders, simplified, etc.  There is something embarrassing about issuing a 17-page purchase order for a copier.  And the contractual requirements in those clauses are very, very rarely relevant post-award.    Its unlikely Convict Labor will come up with that  copier.  More complex or risk contracts, FAR 15 contracts, are different.  I could see going crazy with the full text for those. 

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.


×
×
  • Create New...