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What do you think of this as a possibly new source selection procedure, assuming that statute and FAR are changed to allow?

Step 1: Agency solicits offers (promises) and offeror responsibility (FAR Subpart 9.1) information.

Step 2: Agency evaluates, compares, and ranks all offers and identifies "most promising offer" (based on nonprice and price promises) without discussions and regardless of any weaknesses, significant weaknesses, or deficiencies.

Step 3:  CO determines responsibility (FAR Subpart 9.1) of only the offeror that submitted the most promising offer based on both general (FAR 9.104-1) and special (FAR 9.104-2) standards of responsibility. Determination of responsibility not subject to rules in FAR 15.306. No distinction between "clarification" and "discussion" with regard to responsibility. CO may request and receive any information pertaining to responsibility.

Step 4: If offeror is responsible, agency conducts one-on-one negotiations to agreement on nonprice and price terms. No competitive range. No "discussions" with other offerors. Negotiations are unrestricted, but agency cannot change scope of prospective contract from what was described in the solicitation.

Step 5: If agency and offeror reach agreement, CO awards contract. If they cannot reach agreement, CO goes to second-ranked offer.

 

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This approach will get us away from "brochuremanship" -- it shifts the focus from the technical proposal to the offer; indeed, it seems there is no technical proposal.

I like it.  This is even better than the A-E process because this includes price up front.  The only thing I would add is that for Step 5, if we still haven't selected a winner by a certain point, we can form a competitive range with all those with whom we have already negotiated -- I wouldn't want initial lack of success in Step 5 to be a permanent disqualification for award.

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I am good with it.

Like @ji20874 said, very similar to AE acquisitions under the Brooks Act with the price presented prior to negotiations. Three things:

  1. I think we would end up in a few legal battles on the definition of "most promising offer."
  2. Are you suggesting a change to a certain procedure in place (ex. FAR 15) or an additional part to be added?
  3. 70% of the work force right now doesn't know how to move between the different FAR procedures (FAR 8/13/14/15) based on requirement as it is. Might not help anything. 

 

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2 hours ago, Vern Edwards said:

Step 1: Agency solicits offers (promises) and offeror responsibility (FAR Subpart 9.1) information.

Does the solicitation contain the model contract and the offeror fills in the blanks? Or do offerors offer their own contract terms?

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I think it’s something sorely needed.  The only thing that needs added, in my opinion, is potential clarifications with offerors if required.  I see full understanding of promises is even more important with this approach.

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1 hour ago, Don Mansfield said:

Does the solicitation contain the model contract and the offeror fills in the blanks? Or do offerors offer their own contract terms?

Yes. Model contract with blank spaces. Model contract might include a short statement of objectives instead of a SOW. Offerors respond with their own statements of the work they will do to achieve the government's objectives. 

2 hours ago, ji20874 said:

This approach will get us away from "brochuremanship" -- it shifts the focus from the technical proposal to the offer; indeed, it seems there is no technical proposal.

That's a key objective. No more essay contest "technical proposals" that are not promissory in nature. Back to contract formation basics: offer (promises) and acceptance. Offer promises to be "commitments to act or refrain from acting in a specified way."

Another objective is to get away from "competitive range" and "meaningful discussions" protest fodder.

Requests for responsibility information to be in the form of questionnaires similar to SF 1403, 1404, etc. series. No more proposal design issues, page limitations, etc. Less expensive for offerors. 

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31 minutes ago, formerfed said:

The only thing that needs added, in my opinion, is potential clarifications with offerors if needed.  I see full understanding of promises is even more important with this approach.

No communications with offerors after receipt of offers and prior to selection of the most promising offer (MPO). One goal is to eliminate all protests associated with exchanges after receipt of proposals. That's why the MPO may include weaknesses, significant weaknesses, and even deficiencies. The MPO may be legally unacceptable (may fail to conform to material terms of the solicitation), subject to negotiations.

As for the responsibility determination, the CO will be able to communicate freely with the selected offeror about responsibility during that determination process. No need for clarification/discussion dichotomy. (The GAO does not apply the discussions rules to that process even now.)

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8 minutes ago, Vern Edwards said:

Yes. Model contract with blank spaces. Model contract might include a short statement of objectives instead of a SOW. Offerors respond with their own statements of the work they will do to achieve the government's objectives. 

Makes sense.  Too often government PMs are forced to write a SOW.  That forces them, intentionally or not, to pick one specific way of accomplishing the work.  Industry might have better or more efficient suggestions but get handicapped on what they can offer.

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2 hours ago, Constricting Officer said:
  1. I think we would end up in a few legal battles on the definition of "most promising offer."
  2. Are you suggesting a change to a certain procedure in place (ex. FAR 15) or an additional part to be added?
  3. 70% of the work force right now doesn't know how to move between the different FAR procedures (FAR 8/13/14/15) based on requirement as it is. Might not help anything. 

1. No more so than the definition of "best value." There will of course be complaints about the choice of which offer is most promising, but that is unavoidable in any competition.

2. Elimination of the requirement for a competitive range and discussions with all offerors within it will require a statutory amendment and FAR change.

3. Well, training will always be an issue. There is little you can do without people who are well-educated and well-trained. But this process would be simpler than the current process.

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5 minutes ago, Vern Edwards said:

No communications with offerors after receipt of offers and prior to selection of the most promising offer (MPO). One goal is to eliminate all protests associated with exchanges after receipt of proposals. That's why the MPO may include weaknesses, significant weaknesses, and even deficiencies. The MPO may be legally unacceptable (may fail to conform to material terms of the solicitation), subject to negotiations.

Ah, I see.  That means offerors need to be extra careful and ensure their response is crystal clear and unambiguous.  

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This process would raise the specter of referral for a certificate of competency if a small business that submits the most promising offer is found to be nonresponsible. But concerns about that can be alleviated through the use of well-crafted special responsibility standards, which the SBA will honor. I doubt it would be possible to persuade Congress to  change the COC program.

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3 minutes ago, formerfed said:

Ah, I see.  That means offerors need to be extra careful and ensure their response is crystal clear and unambiguous.  

Yes, it would mean that. But more of them might do well if we get rid of the essay-writing contests.

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37 minutes ago, Vern Edwards said:

This process would raise the specter of referral for a certificate of competency if a small business that submits the most promising offer is found to be nonresponsible. But concerns about that can be alleviated through the use of well-crafted special responsibility standards, which the SBA will honor. I doubt it would be possible to persuade Congress to  change the COC program.

And the basis for my question. 

I think the COC process should change at the same time.  To what?  Leave determination of responsibility in hands of CO with a SB right of "appeal" to SBA.   The hope would be that a CO would do due diligence in a nonresponsibilty determination rather simply referring for a COC.  It was my experience and believe the situation still exists today that the COC process is avoided at the expense of addressing nonresonibilty matters as they should be.  Then there is SBA who handles COC's in a cookie cutter way.  The hope would be that an appeal process would better support both diligent CO's and SB rights when diligence is not practiced.

Change of the COC process or not I like the idea.

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Just now, Don Mansfield said:

I like the idea. Someone should pilot it under FAR 16.505 and gather data.

Yes, it could be done under the "fair opportunity" process. (Some agencies are determining a competitive range and conducting Part 15 discussions!) And I don't think you would need the responsibility determination.

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6 minutes ago, Vern Edwards said:

Culham: Congress is not going to change the COC process. Ours is a very imperfect world. Baby steps.

I'm okay with you not liking the idea if that's your only issue.

Confused my response I guess so I will shorten it with a quote from my post "I like the idea"

 

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3 hours ago, Vern Edwards said:

Yes, it could be done under the "fair opportunity" process. (Some agencies are determining a competitive range and conducting Part 15 discussions!) And I don't think you would need the responsibility determination.

https://www.gao.gov/products/b-401438 as reference to support the idea of trying the idea under fair opportunity.

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I think that it would be good in the event that your most promising offeror and/or second ranked offeror  won’t agree on what the government feels is a fair and reasonable price or other critical terms/features to state that the government may move on to the third most promising

Id like to see (N’s) opinion.  But from my personal experience and from several conversations with friends and acquaintances in the construction contracting arena, they often don’t or can’t offer their best pricing initially. If they know that it is unlikely that the government would move on to other firms, they may not be motivated to negotiate the best deal for the both parties. 

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17 minutes ago, joel hoffman said:

I think that it would be good in the event that your most promising offeror and/or second ranked offeror  won’t agree on what the government feels is a fair and reasonable price or other critical terms/features to state that the government may move on to the third most promising

Id like to see (N’s) opinion.  But from my personal experience and from several conversations with friends and acquaintances in the construction contracting arena, they often don’t or can’t offer their best pricing initially. If they know that it is unlikely that the government would move on to other firms, they may not be motivated to negotiate the best deal for the both parties. 

thoughts that enhances  Don's idea of piloting through 16.505.  Especially advantageous if there is an existing multiple award IDIQ out there that has such vague fair opportunity procedures that a couple task orders could be piloted to see how they settle with ones using a technique that mirrors the current FAR part 15 as Vern notes. 

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20 hours ago, Vern Edwards said:

Step 2: Agency evaluates, compares, and ranks all offers and identifies "most promising offer" (based on nonprice and price promises) without discussions and regardless of any weaknesses, significant weaknesses, or deficiencies.

Compare each offeror and their offer to each other?

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