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Phase 1 of a Phased Evaluation without Evaluating Price


Guardian

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FACTS:

Our agency is issuing an RFQ to award multiple BPAs under the authority of FAR subpart 8.4.  To promote efficiency, we propose conducting a phased evaluation, down-select if you please.  In phase one, we would evaluate the most heavily weighted factor, relevant experience.  We would down-select to phase two in which we would then evaluate 1) technical approach via oral presentations, 2) past performance and 3) price.

QUESTIONS:

Under 8.4, may we do a firm down-select (elimination of quotations) prior to phase 2 without first evaluating price in phase 1?  Does anyone have a GAO or CFC case addressing this question? 

Note:  I know we have employed this method when under the authority of FAR section 16.505.  The courts have made a distinction between "considering" price and evaluating price.

That said, may we say we are considering price without evaluating it in phase one?  Do we even have to consider it?

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1 hour ago, Vern Edwards said:

@Guardian 
 

Would you please cite a decision in which the Court of Federal Claims, the Federal Circuit Court of Appeals, or the GAO has made a distinction between "considering" price and "evaluating" price?

Vern, this was my understanding.  This is also why I asked if anyone had an applicable case, as I recall reading something to this effect but cannot locate the case.  You yourself use the phrase consider price or "price is considered" as opposed to evaluate price.  Seeing you tend to be deliberate with your words, I thought there was a specific reason for this.

"Note that price is considered in each step."

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3 hours ago, Guardian said:

FACTS:

Our agency is issuing an RFQ to award multiple BPAs under the authority of FAR subpart 8.4.  To promote efficiency, we propose conducting a phased evaluation, down-select if you please.  In phase one, we would evaluate the most heavily weighted factor, relevant experience.  We would down-select to phase two in which we would then evaluate 1) technical approach via oral presentations, 2) past performance and 3) price.

QUESTIONS:

Under 8.4, may we do a firm down-select (elimination of quotations) prior to phase 2 without first evaluating price in phase 1?  Does anyone have a GAO or CFC case addressing this question? 

Note:  I know we have employed this method when under the authority of FAR section 16.505.  The courts have made a distinction between "considering" price and evaluating price.

That said, may we say we are considering price without evaluating it in phase one?  Do we even have to consider it?

First I have not studied the idea in detail to sort out all the issues but here is my gut reaction.

Your idea does not seem consistent with FAR subpart 8.4.  Simply stated I do not know why you want to immediately jump to how stuff is done outside the GSA FSS rules as a comparison.   My quick read of the BPA rules at both the FAR and on GSA's website suggest you are creating something that looks like an other than a GSA FSS effort to establish the BPA's.   

More specifically it would seem that if you do proper market research of the GSA FSS contractors you do not need to do an experience cut as you suggest.   As GSA affords you the opportunity under an "or" to select contractors per market research for establishment of multiple BPA's I think are not affording yourself the opportunities of doing something easily as GSA FSS allows.  Some of this allowance will depend on the extent of value anticipated to be ordered under the BPA's.

This may be blunt but I strongly suggest you go back to square one, read FAR 8.4 regarding establishment of BPA's and think hard about the advantages you can use to get away from a selection process that looks too much like FAR Part 15.  Getting twisted around an axle about some dang ruling regarding FAR 16.505 in my humble opinion has no bearing what can and can not be done under FAR subpart 8.4, the further clarifications by GSA via tools on their website, and the GSA FSS contracts themselves.   As to the latter remember a BPA is an order under the FSS contract! 

I have edited this post to direct your attention to this page in WIFCON Legal.   It appears that a detailed read will help you decide if you can eliminate someone from the BPA consideration without looking at price.

http://www.wifcon.com/pd8_405_3.htm

 

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@Guardian You are right that I have used "consider" and "evaluate" with reference to price or cost, but I am not aware of having intentionally used them with reference to distinct processes. I have looked at hundreds of protest decisions, and my observation is that the GAO and COFC seem to use the terms interchangeably. I have found nothing in any decision that leads me to believe that either tribunal understands the terms to refer to distinct processes. I checked with some knowledgeable people and they were not aware of any distinction in the protest decisions.

I long thought that talking about price "evaluation" was odd phrasing. I think of "evaluating" as assigning a value to something, and it does not make much sense to me to say that we're going to assign a value to price. I tend to think of analyzing a cost or price in order to determine or decide whether it is fair and reasonable or realistic. But FAR 15.304(c)(1) says, "Price or cost shall be evaluated in every source selection"; FAR 15.305(a)(1) refers to the evaluation of cost or price; and FAR 15.404-1(a)(1) says, "The contracting officer is responsible for evaluating the reasonableness of the offered prices."

Bottom line: I don't know of any case law principle to the effect that there is a distinction between considering cost or price or evaluating cost or price. But you have given me something to think about.

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In Sevatec (B-413559.3), the GAO said,

 

  • Under the circumstances here, the RFP’s source selection methodology--which only considers the prices of the highest-rated offerors, and considers the prices insofar as they are “fair and reasonable”--conforms with the agency’s requirements to consider price under CICA.  Insofar as the proposed source selection process considers the price of every awardee (and rejects those firms that lack fair and reasonable pricing), the agency has satisfied its requirement to consider price to the government.

This was a Part 15 source selection.  But it points out that the CICA requirement is to consider price for all awardees, not necessarily all offerors.

6 hours ago, Guardian said:

Under 8.4, may we do a firm down-select (elimination of quotations) prior to phase 2 without first evaluating price in phase 1?

I think you can.  I've done it.

But maybe there is an easier way?  Do enough research of the schedule contractors to satisfy yourself so that you don't need much of a technical proposal, and send the RFQ to only enough schedule contractors to ensure receiving three quotes (instead of all schedule contractors).

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@Guardian 

3 hours ago, Guardian said:

[M]ay we say we are considering price without evaluating it in phase one?  Do we even have to consider it?

I wouldn't say I was considering price unless I was prepared to say what I meant by "considering." Of what would considering consist?

As I recall, there are no mandatory evaluation factors when placing orders under FAR Subpart 8.4. (Am I wrong about that?) If price is not a mandator evaluation factor, then I think you may eliminate a firm in Phase I without considering or evaluating price.

But you say you will evaluate price in Phase II, and it sounds like you intend to make a tradeoff decision. That might cause some confusion. Why eliminate someone in Phase I without considering price and then consider price when selecting the "winners."

You had better think that through and explain what you intend to do clearly in the RFQ. Otherwise it might not make sense to a protest tribunal.

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9 minutes ago, ji20874 said:

But maybe there is an easier way?  Do enough research of the schedule contractors to satisfy yourself so that you don't need much of a technical proposal, and send the RFQ to only enough schedule contractors to ensure receiving three quotes (instead of all schedule contractors).

Our intent is to award as many as eight BPAs.  Last time we solicited, we received 68 initial quotations.  Let's say we have 100 CLINs on this BPA.  We would like to avoid comparing 100 items of pricing against GSA schedule for each of the 68, presuming we get back roughly the same number this time around.  One of the biggest issues, as you are well aware, is dealing with the requests (demands) of our program office, their lack of market research and inflexible to do anything differently than they have done in the past.

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26 minutes ago, ji20874 said:

I think you can.  I've done it.

 

17 minutes ago, Vern Edwards said:

(Am I wrong about that?)

Look I will just say it one more time.....read FAR 8.4!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

http://www.wifcon.com/cgen/406692.pdf 

"1. Protester’s argument that its technically acceptable quotation was excluded from the competition without consideration of price in a best value acquisition for the establishment of blanket purchase agreements (BPA) under the Federal Supply Schedule (FSS) is sustained where Federal Acquisition Regulation subpart 8.4 requires that price be considered in establishing BPAs under the FSS, and where the record shows that the agency “downsized” the pool of vendors, by excluding some of them, like the protester, who were technically acceptable, without consideration of their lower prices."

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9 minutes ago, Vern Edwards said:

@Guardian 

As I recall, there are no mandatory evaluation factors when placing orders under FAR Subpart 8.4. (Am I wrong about that?) If price is not a mandator evaluation factor, then I think you may eliminate a firm in Phase I without considering or evaluating price.

This has always been my thinking.  I still keep a copy of your Source Selection Handbook, one of my favorite reads.  In fact, I think that every first or second year 1102 ought to be made to read it.  I did not read until five years into my career and it made a lot more sense than so much of the unnecessary and insipid material I got throughout 40 to 80 hour classes.

16 minutes ago, Vern Edwards said:

But you say you will evaluate price in Phase II, and it sounds like you intend to make a tradeoff decision. That might cause some confusion. Why eliminate someone in Phase I without considering price and then consider price when selecting the "winners."

Because my understanding is that in a phased evaluation or a down-select, the CO should be evaluating the most heavily weighted factor(s) in the initial stage.  Price is the factor with the least weight and experience is the most heavily weighted.  As I explained above, assuming we get upwards of 60 to 70 quotations, why would I want to perform a price analysis of them all while simultaneously evaluating the factor my customers are most concerned with?  It does not seem to be the best use of my time as a professional and certainly does not promote efficiency.  Lastly, to answer your same question, my customers have told me this is the way they successfully did it last time; they want to make a smart and efficient cut or down-select, not having to analyze the pricing of countless proposals when the submitters will not be invited to participate in phase 2.  They want to focus intently on those schedule contract holders possessing the quality most important to them, i.e., relevant experienced.  Price and the lesser weighted non-price factors will be evaluated in the subsequent phase.  It really comes down to efficiency.

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16 minutes ago, Guardian said:

Last time we solicited, we received 68 initial quotations.

Again let me state......READ FAR 8.4!  Emphasis added!

 

"(v) If estimated value of the BPA exceeds the simplified acquisition threshold. The ordering activity contracting officer-

                     (A) Shall post the RFQ on e-Buy to afford all schedule contractors offering the required supplies or services under the appropriate multiple-award schedule an opportunity to submit a quote; or

                     (B) Shall provide the RFQ, which includes the statement of work and evaluation criteria, to as many schedule contractors as practicable, consistent with market research appropriate to the circumstances, to reasonably ensure that quotes will be received from at least three contractors that can fulfill the requirements. When fewer than three quotes are received from schedule contractors that can fulfill the requirements, the contracting officer shall document the file. The contracting officer shall prepare a written determination explaining that no additional contractors capable of fulfilling the requirements could be identified despite reasonable efforts to do so. The determination must clearly explain efforts made to obtain quotes from at least three schedule contractors."

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8 minutes ago, C Culham said:

http://www.wifcon.com/cgen/406692.pdf 

"1. Protester’s argument that its technically acceptable quotation was excluded from the competition without consideration of price in a best value acquisition for the establishment of blanket purchase agreements (BPA) under the Federal Supply Schedule (FSS) is sustained where Federal Acquisition Regulation subpart 8.4 requires that price be considered in establishing BPAs under the FSS, and where the record shows that the agency “downsized” the pool of vendors, by excluding some of them, like the protester, who were technically acceptable, without consideration of their lower prices."

Q6: Page 61 states: “The Technical Evaluation Board (TEB) shall review and downsize the number of quotations to no more than twelve (12) of the most favorably evaluated quotations.” Is this based on technical or technical and price? [see page 2 Cyberdata Technologies, Inc.]

Sounds to me like the GAO was calling the agency out for not making it clear that price would not be a factor in the down-select or downsizing of the pool.  I think as long as we make it clear what we intend to do, then we are OK.

What if we had the schedule contract holders submit their quotations in stages to save them the cost and administrative burden associated with submitting a full blown quotation up front?  What if we only asked for their relevant experience to start (in phase 1)?  Certainly, we cannot evaluate something as a factor that we did not ask for.

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Just now, Guardian said:

Q6: Page 61 states:

First did you read other protests found on the WIFCON page I referenced?  Clarity for you might be reached.

Clearly I am anticipating that folks will pose similar thoughts to mince the decisions and the FAR to play the game any way one wants so let me offer something to Keep It Simple.

Show and Tell the Program Office the Schedule to be used and the contractors on it in GSA's ELibrary.   Next have Program Office research all by looking at their websites and other public facing information to determine who has experience at the level all think is appropriate.   Next have the Program Office give you enough names that you believe would  reasonably ensure that quotes will be received from at least three contractors.  Pick a number that makes sense acknowledging that they are on GSA FSS and will most likely respond.    Then when the quotes come in then do technical approach, past performance and price.   

Additional thoughts - I am most likely reading "experience" too broadly but I am confused it is not part of technical approach?  This comment is over and above the fact that unless there is some underlying requirement, say pursuant to a FAR supplement by your agency, to have the ability to sort out experience before you ever send an RFQ to contractors.    

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I think Noble stands for Carl's point that price must be considered/evaluated when conducting a competition for a BPA under an FSS.

As I said in an earlier post, I think it may be problematic in a phased evaluation to eliminate someone in Phase I without considering price when you intend to make the ultimate decision based on nonprice/price tradeoffs. You could eliminate an offeror without considering price if you declare it to be technically unacceptable because it does not satisfy a material  requirement of the solicitation and is thus ineligible for award, but otherwise it might be questioned. 

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On 2/22/2021 at 8:07 AM, Guardian said:

may we do a firm down-select (elimination of quotations) prior to phase 2 without first evaluating price in phase 1? 

I highly encourage you to look up the "Advisory Down Select" method, from DHS PIL.   

Typically, the low rated offerors are eliminated via the down-select, and are ineligible for phase two.  Instead, using an advisory down-select, low rated offerors remain eligible for phase two.  Instead of being eliminated, they are advised that they are unlikely to win the contract should they decide to proceed to phase two.  But they can proceed if they want to. 

Encouraging voluntary withdrawal of low-quality proposals, rather than tossing them out yourself, may solve your problem, and is (imo) a brilliant idea. 

Its fair, relatively easy to do, eliminates the grounds for a lot of pre-award protest,  simplifies the SS, and saves the offerors time and money.  Wins all around.

 

 

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1 hour ago, General.Zhukov said:

I highly encourage you to look up the "Advisory Down Select" method, from DHS PIL.   

I have a copy of the PIL Boot Camp Workbook within close reach.  I was considering the same approach.  Thank you for reminding me.

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16 hours ago, General.Zhukov said:

I highly encourage you to look up the "Advisory Down Select" method, from DHS PIL.   

Typically, the low rated offerors are eliminated via the down-select, and are ineligible for phase two.  Instead, using an advisory down-select, low rated offerors remain eligible for phase two.  Instead of being eliminated, they are advised that they are unlikely to win the contract should they decide to proceed to phase two.  But they can proceed if they want to. 

Encouraging voluntary withdrawal of low-quality proposals, rather than tossing them out yourself, may solve your problem, and is (imo) a brilliant idea. 

Its fair, relatively easy to do, eliminates the grounds for a lot of pre-award protest,  simplifies the SS, and saves the offerors time and money.  Wins all around.

 

 

Interesting suggestion that I would simply pose a couple of questions to.  Is not ones ability to search out on an element of experience via market research of an existing pool of contractors in a SIN of GSA FSS  contractors one and the same advisory down select?  After all even if the OP only picks 3 or 4 firms off a SIN of say 200 contractors the other 190+ could send a quote if they found out could they not (ref.  FAR 8.404)?   I raise these questions in that a process conceived under FAR part 15 is applied to a selection process under GSA FSS which is in fact a "fair opportunity" process by a close read of FAR 8.4 is not required.   My view remains that the OP is unnecessarily complicating something that could much simpler.

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