Oral Presentation

[Guardian]

I am the CO assigned to a requirement for services.  My program office has elected to conduct oral presentations.  An evaluation plan with the following language was submitted to me--

DO state that a firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm.

If by this language, we mean to say that a contractor (prime) competing for an award under this solicitation may not participate both in an oral presentation for itself and as a subcontractor for a competing contractor, then I am fine with this language.

However, if by this language, we mean to direct subcontractors via the solicitation and restrict them from doing business with more than one contractor, then I am not OK with this language.

My assumptions are as follows:

1) The solicitation functions to direct the contractors, not their subcontractors.  Yes, there are terms and conditions that trickle down to the subcontractor level, for example, ensuring that subcontractors have made adequate representations and certifications.  But that is substantially different than limiting one's ability to engage in free-enterprise at its own discretion.

2)  Because of the generally-accepted principles associated with the competitive process, e.g., non-disclosure , prohibitions against collusion,  freedom to contract in furtherance of one's best interests, avoidance of unduly restrictive conditions, to name a few, the only practical means by which the prime contractor could assure compliance with such a mandate would be to have its subcontractor(s) sign some sort of non-compete agreement.  My cursory understanding of NCAs for companies as opposed to employees is that they are often unenforceable and run contrary to the principles of free-commerce and mercantilism. 

When I inquired as to the primary concern giving rise this language, I was told that because the presentations will incorporate tech challenge questions, the Government is worried that these questions could be shared with contractors who have not yet presented by subcontractors working with more than one competitor, thereby providing a competitive advantage.  While I understand this concern, I think there are better ways to mitigate the risks that are inherent.  An easy way would be for the Government to make the tech challenge questions publicly-available with the solicitation.  Not all program offices are OK with this approach.  Fortunately ours is.  Another solution might be to prohibit subcontractor participation in the oral presentation altogether.  It is worth mentioning that the solicitation language at issue only restricts subcontractors from participating in more than one oral presentation; it does not prohibit a prime from establishing a contractor-subcontractor relationship with another firm to which one of its competitors also intends to subcontract.  There are other inherent concerns associate with contractors using the same subcontractor in their oral presentations.  Certain sensitive information could be exposed.  However, is it not the responsibility of those contractors to take needed measures to safeguard such information, for example, by asking those with whom they engage to sign NDAs?  This seems to me a logical act of self-preservation.

Does anyone else find the solicitation language for oral presentations (provided above) to be unduly restrictive?  I worry that inclusion of such language could trigger a pre-solicitation protest.

[Don Mansfield]

8 minutes ago, Guardian said:

Does anyone else find the solicitation language for oral presentations (provided above) to be unduly restrictive?  I worry that inclusion of such language could trigger a pre-solicitation protest.

I think it could lead to an unfair outcome. You could have multiple competing offerors proposing to use the same subcontractor, but only one would have the benefit of having the subcontractor present at the oral presentation. 

[ji20874]

I have seen this done a number of times, and I am okay with it if there are plenty of subcontractors to go around.  I wouldn't use it where there was only subcontractor that every prime would have to team up with.

Can you make the demonstrations prime only?  This is always my first preference.

[Guardian]

12 minutes ago, ji20874 said:

Can you make the demonstrations prime only?  This is always my first preference.

Sure, in fact, when I brainstormed about this on my ride down the interstate, this was the other workaround I arrived at, which is to say, in addition to the "open-book" tech challenge approach.  Without giving the PM either of the options, I highlighted my concerns.  He immediately answered with "can't we give everyone the questions up front"?  Being the consummate team-player and wise CO that I am, I figured I would let him think the idea was all his.

To your point about the nature of the requirement and how many subcontractors are likely available within this marketplace--by my understanding, the answer is "plenty."  However, I am not the SME, nor does this lessen my discomfort about restricting which companies prospective contractors can subcontract to.  So then, do we mean to say that the Government may unfavorably rate or even excluded from further consideration for an award those contractors proposing to use a subcontractor that others have also proposed?  A particular subcontractor can make the difference in whether a company is selected for an award.  Early in my career, company representatives would from time-to-time call to complain that manufacturers routinely provided lower pricing to their competitors, the same ones that funneled them more business.  I would listen, but there is nothing unethical or illegal about this.  But if we examine the rule being submitted to my office as a condition for oral presentations, I see problems.   At best, it is inherently flawed, promoting neither fairness nor impartiality between offerors.  What does it encourage--a race to gain the loyalties of the most preferred firms inside the beltway, quid pro quos behind an unpierced veil,, instructions contrary to acquisition's core principles?  Where does this leave small businesses looking to grown and prove themselves?  Restricting choice rarely helps the customer and taxpayers and I still have doubts such a condition would hold up in a protest.

[ji20874]

You're already convinced, right?  Nothing I say will persuade you?

Look back at what I wrote, and then consider your reply.  In your reply, you're talking about one particular subcontractor being key to the selection decision, but that was not the context of my comment.

If one subcontractor is key to winning in your situation, that is all the more reason to leave subcontractors out.

I'm okay with stating that a firm can participate in only one oral presentation, whether as prime or sub, as long as there are plenty of subcontractors to go around.

All your words have persuaded me that you're already convinced, but they haven't persuaded me that it is illegal or whatever to limit proposed subcontractors to attending only one oral presentation.

[Guardian]

18 minutes ago, ji20874 said:

I'm okay with stating that a firm can participate in only one oral presentation, whether as prime or sub, as long as there are plenty of subcontractors to go around.

Beyond the question of whether it is unduly restrictive, I am not convinced as to how we would accomplish this.  The sentence above could be interpreted as "the subcontractor shall not...."  It just seems to me that it is written using passive language, which makes it all the less clear and enforceable.  Here it is again--

DO state that a firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm.

If I translate that into something I can incorporate into a solicitation, preserving as much of the language as I can, then it might read--

[A] firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm.

Per the above condition, if "a firm may attend only one oral presentation," then perhaps it may also attend more than one.  If it "may not," then what are our enforcement options if a firm does not comply?

Currently my office requires me to sign a completed checklist after every review certifying in part that our language is consistent throughout a document.  For instance, if I use Vendor, stick with Vendor throughout, Schedule Contract Holder, stick with Schedule Contract Holder, Offeror, you get the point.  What do we mean by "firm" and the explicating phrase thereafter?  This seems like a backhanded, passive way of tell subcontractors what they may or may not do, and it says "may," by the way, not shall.  So then, it does not sound like we are too serious or convinced ourselves.  This is all the stuff they teach over at the local acquisition institute; I am just following what years of classes have instructed me to do and look out for.  Why not instead say "Neither Contractors nor Subcontractors shall attend more than one oral presentation"? 

Speaking for myself, I never direct subcontractors in my contracts, nor do I direct them in my solicitations.  Is my thinking in this regard wrongful?  Is it OK to direct the subcontractors via the solicitation language as to what they may and may not do?  This is a important question if I am to be convinced from my current opinion.

If the answer is "no," that we should not be directing subcontractors in solicitations, just as we should not be directing them in contracts, then how do we accomplish this aim?  I would think the answer is obvious.  We need to ensure compliance with this rule by directing our prospective contractors.  But how would we practically expect them to ensure as much?  They could ask their subcontractors who else they are working for; but in my opinion, that is none of their business and if I were a subcontractor, I have a pretty good idea how I would respond.  So then, it seems to me that it would have to be accomplished by way of a non-compete agreement or something of the sort, meaning pretty much that but we might give it some other name so people cannot say that is what it really is.  If you do not agree, then what other way could it be done?

My issue is not with the nature of the circumstances, that there is little risk because there are probably enough impressive subcontractors to go around or that the odds of protest are low.  My issue is that it is per se wrong to direct subcontractors through our solicitation language.  My issue is that it is mistaken to see the stifling of competition as acceptable when there are better approaches that can mitigate the risks inherent when the Government meets with offerors singly as opposed to requiring simultaneous submissions.

[ji20874]

"My issue is that it is per se wrong to direct subcontractors through our solicitation language."

• An offeror may include a subcontractor as part of its oral presentation team; provided, the subcontractor has not participated in any other offeror's oral presentation.

Issue resolved.

[C Culham]

The language may have been solved  but limiting participation when a firm may be a subcontractor to many and itself a prime seems crazy to me.  My first step would be to ask the program office Why? they want the language.  That would help me determine how I as the CO would offer back to them my alternatives to their request.

There are lots of reasons for me as to why I think it is crazy -

Does the solicitation and resulting contract carry exact language that subs participating in the solicitation process must be the same subs that must perform the work carved out for that sub by the proposal?

Is the agency already expecting that the prime will give authority to a sub, any sub, that a sub can be the "contractors representative" on the project.

Seems you are entering into the world of subcontractor responsibility (FAR 9.104-4).   I hope the sentence is not it.  The program office should have provided within the context of their evaluation factors that subcontractor capabilities are a part of the selection process.

Will a singular firm that is viewed as a subcontractor always be doing the same work for the multiple possible primes?  Cutting the firm from participation in multiple presentations assumes they will, is the program office sure?  Are they even sure that same firm will as a sub be doing the same thing as a prime?

My quick thoughts and I could probably come up with more.  I am with the OP on how the idea seems to conflict with the ideal that a subcontractor has no privity of contract why make it so in the solicitation process.   Reading between the lines it would seem that all told the agency in their processes has failed in previous solicitation processes where oral presentations are allowed to key in on having meaningful evaluation factors as they would apply to performance, supervision and control of the work.  In this vein it seems the program office has already made up its mind on a firm or firms they want.   

Heck why not just do it as a sealed bid because no one seems to really care about a firm stating how they will pursue the work as a prime or as a subcontractor under a prime, everyone already knows!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

[ji20874]

Certainly, the approach won't work for every acquisition, but it might work for some.  

Sometimes, an oral presentation or demonstration might reasonably involve a question or scenario which is introduced at the oral presentations for on-the-spot and unrehearsed responses by the competing offerors.  That seems to be a legitimate reason to not allow a firm to participate in a second or third oral presentation -- fairness.

[Neil Roberts]

23 hours ago, Guardian said:

DO state that a firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm.

From the contractor side, my view is that the Government should not be involved with the prime-sub relationship as it relates to FAR 15.102 oral presentations by contractors. The oral presentations should be for contractors. In addition, the proposed ground rule "DO state that a firm may attend only one oral presentation, whether for itself as a prime offeror or as a subcontractor for another firm" appears to require a potential offeror to decide to be either a prime contractor or a subcontractor, but not both. The Government should not be in that business without some specific compelling and permissible rationale.         

Edited June 30, 2020 by Neil Roberts
add "not"