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Joel, 

You’re missing what I was telling the OP.  There are ways of writing proposals that can distinguish yourself from your competitors.  All things being equal, a proposal that offers exceptional benefits with proof may deserve higher ratings.

What often makes an offer a winner with LH proposals is providing benefits over your competitors.  I also used an example for experience where a proposal focuses on what they accomplished (results from their efforts) instead of simply saying they did the work. That’s also different from a past performance assessments by clients.  

I'm talking here about a winning offer.  You’re bringing up performance, enforceable promises, and administration which is a different subject.
 

 

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1 hour ago, formerfed said:

Joel, 

You’re missing what I was telling the OP.  There are ways of writing proposals that can distinguish yourself from your competitors.  All things being equal, a proposal that offers exceptional benefits with proof may deserve higher ratings.

What often makes an offer a winner with LH proposals is providing benefits over your competitors.  I also used an example for experience where a proposal focuses on what they accomplished (results from their efforts) instead of simply saying they did the work. That’s also different from a past performance assessments by clients.  

I'm talking here about a winning offer.  You’re bringing up performance, enforceable promises, and administration which is a different subject.
 

 

Agreed but a winning proposal should be enforceable- especially if you intend to pay a premium for it.

This thread went on for days, speculating on what may have happened with the technical evaluation but not considering the price differences. 

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10 hours ago, joel hoffman said:

This thread went on for days, speculating on what may have happened with the technical evaluation but not considering the price differences. 

The unfortunate thing is Salus only found out adjectival ratings and price.  We don’t know what we’re the merits of identified strengths making up those ratings and respective value if paying a premium was considered.  We also don’t know if the agency just looked at the adjectival labels, said all three were equal, and price trumps.
 

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On 6/29/2021 at 6:45 AM, formerfed said:

The unfortunate thing is Salus only found out adjectival ratings and price

In following this thread I had this reoccurring thought.  No doubt the OP probably got a debriefing that the guiding principles of the FAR call for but I have wondered based on what has been posted and likewise wondered if the ensuing comments beyond found in the thread give consideration to a appropriate debrief.   It seems, but I could be wrong, that the debrief was post award.   Noting this I just thought I would post the important part of FAR 15.506 and emphasized something that relates to the LH contract model.

"(d) At a minimum, the debriefing information shall include-

           (1) The Government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable;

           (2) The overall evaluated cost or price (including unit prices) and technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror;

           (3) The overall ranking of all offerors, when any ranking was developed by the agency during the source selection;

           (4) A summary of the rationale for award;

           (5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and

           (6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.

      (e) The debriefing shall not include point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors. Moreover, the debriefing shall not reveal any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C.552) including-

           (1) Trade secrets;

           (2) Privileged or confidential manufacturing processes and techniques;

           (3) Commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; and

           (4) The names of individuals providing reference information about an offeror’s past performance."

 

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C Culham, thanks for that! We definitely did not receive some of that information. I would very much like to see unit prices and the overall rankings. We asked about the number of strengths and weaknesses of the successful offereors proposal, which seems like it would fit under # 6, but that one is pretty subjective and they refused stating that it is source selection information pertaining to the awardee's quote and is not releasable. 

Well, next time, we will have some more specific question for them!

Thanks again!

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Vern, I am going to agree with you in principle. However, in this case I think that would have just been additional wasted time and money.

We know that in the dozen or so contracts awarded by this office no recipient or our team has received a higher than acceptable rating (even those we won), and always awarded to the lowest price (and all of them were best value solicitations).

We know that they had us submit an updated proposal after the prices were set and 3 months after the technical reviews were complete, and therefore (should have) already knew who was going to receive the award, and that the price differential would not have left us in the competitive range.

We know that they ignored that the contracted positions are not getting paid overtime even though they are clearly required to be paid overtime rates as determined by the agency themselves in other regions (as well as based on discussions with the Department of Labor and a labor attorney). They even went so far as to try to force companies to justify paying overtime rates (when you are legally required to do the opposite...). This factor alone probably bumped us out of price competition.

We know that the CO would not answer questions about the number of strengths and weaknesses from the winning proposal (not exactly proprietary information).

After such a inexplicably long process that had almost no communication from the COs and multiple issues, the only response from the COs when we had reasonable process questions was effectively 'trust us, we did the process correctly'.

Based on the totality of the available information, the preponderance of evidence indicates that the only winning strategy was price with an at least minimally acceptable proposal. 

If the solicitation process always worked and awards were always made using the best judgement and practices available, then a protest system wouldn't need to exist.

As a vendor, sometimes the only thing left to do is get the best information you can to inform your decision about a protest. 

I think this has just been a painful part of learning how this particular acquisition office works.

However, we will definitely be incorporating all of the good advice that has been shared on this thread!

 

 

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2 hours ago, Salus said:

even those we won

As I caught up on posts a thought came to me.  A contractor who wins a competition can be well served by asking for a debrief as well.   Helps know what the contractor did right to win.

Not saying that in the case of this thread and the particular agency that much might be learned but might be a helpful strategy overall.

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On 7/3/2021 at 6:41 PM, Salus said:

We know that the CO would not answer questions about the number of strengths and weaknesses from the winning proposal (not exactly proprietary information).

@SalusSee FAR 15.506(e):

Quote

 

(e) The debriefing shall not include point-by-point comparisons of the debriefed offeror’s proposal with those of other offerors...

 

If you asked the CO for the number of the winner's strengths and weaknesses you were seeking to make a point-by-point comparison. I believe in generous debriefings, but I would not have given you that information. The purpose of a debriefing is to tell you about your proposal, not to tell you about the proposals of other competitors.

In any case, strength and weakness are merely categories of evaluation findings. They are not necessarily unitary measures of value. Thus, one offeror's single strength might be worth more than two or three strengths of another offeror. Suppose that the winner had four strengths and you had six? So what? Unless you know how an agency understood and used the concepts of strengths and weaknesses, comparing counts won't tell you much.

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Vern, you are correct. There would be no way to really compare.

Aside from the CO telling us that the contract was awarded based on lowest price because all ratings were equal, we really just wanted to be able to find out any information FAR 15.506(d)(6) that C Culham shared to ensure that the process was followed. If there were no weaknesses, we could point out some giant red flags that the CO seemingly ignored.

The first was the overtime issues. Our team and the other team both included OT (both teams consulted the Department of Labor and a labor attorney, separately). Both vendors were significantly higher (don't know how much higher the other team was, just just said significantly higher than the winning vendor). Both of our teams raised the OT issue with the CO as soon as the CO tried to require vendors prove that positions were eligible for OT.

The second was pay reasonableness. During our debriefs, both unsuccessful offerors pointed out to the CO that the winning team would have to cut wages to a number of the employees currently working on contract, which is directly contrary to the technical factor of recruitment and retention. Both teams were told that it was up to the winning team to 'figure it out' in regards to pay and overtime. However, this seems pretty contrary to the technical factors and regulations that seemingly require COs to make sure that employees are receiving overtime if they are eligible and perform a price reasonableness determination. 

We knew going into the proposal that the technical leads were very concerned about high turnover rates due to already low pay and not just from it being included in the proposal. We no have a pretty good idea that the technical reviewers for this project don't feel like they got to chose the winning proposal (it is a small world). And now we know that many peoples wages were cut and OT wasn't included. I think nearly everyone signed to stay on, but that seems most likely related to their receiving 2 DAYS notice to make their decision. I can guarantee that some of those people are already looking for other work.

So I guess a question in my mind follows is: Are CO's supposed to consider price reasonableness (that the winning vendor cannot possibly pay market wages)? Are they supposed to consider whether there is going to be a big hit on one of the primary technical factors that was supposed to be the weightiest component of the evaluation? I know that price isn't supposed to go directly in front of the technical reviewers, so if the CO bothered to consider that, would that end up considered as a weakness? (Based on the CO's responses though, it certainly seems like price was the decision factor even though it undermined the primary technical factors)

Regardless, we are following the advice given in this thread. We are going to file a letter with the Ombudsman (the other unsuccessful vendor already did for these same issues) and stay in touch with technical leads. We are considering advising them that if they are unhappy with the how the award was made or is implemented, they should reach out to their regional administrator to follow up.

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3 hours ago, Salus said:

Vern, you are correct. There would be no way to really compare.

Aside from the CO telling us that the contract was awarded based on lowest price because all ratings were equal, we really just wanted to be able to find out any information FAR 15.506(d)(6) that C Culham shared to ensure that the process was followed. If there were no weaknesses, we could point out some giant red flags that the CO seemingly ignored.

The first was the overtime issues. Our team and the other team both included OT (both teams consulted the Department of Labor and a labor attorney, separately). Both vendors were significantly higher (don't know how much higher the other team was, just just said significantly higher than the winning vendor). Both of our teams raised the OT issue with the CO as soon as the CO tried to require vendors prove that positions were eligible for OT.

The second was pay reasonableness. During our debriefs, both unsuccessful offerors pointed out to the CO that the winning team would have to cut wages to a number of the employees currently working on contract, which is directly contrary to the technical factor of recruitment and retention. Both teams were told that it was up to the winning team to 'figure it out' in regards to pay and overtime. However, this seems pretty contrary to the technical factors and regulations that seemingly require COs to make sure that employees are receiving overtime if they are eligible and perform a price reasonableness determination. 

We knew going into the proposal that the technical leads were very concerned about high turnover rates due to already low pay and not just from it being included in the proposal. We no have a pretty good idea that the technical reviewers for this project don't feel like they got to chose the winning proposal (it is a small world). And now we know that many peoples wages were cut and OT wasn't included. I think nearly everyone signed to stay on, but that seems most likely related to their receiving 2 DAYS notice to make their decision. I can guarantee that some of those people are already looking for other work.

So I guess a question in my mind follows is: Are CO's supposed to consider price reasonableness (that the winning vendor cannot possibly pay market wages)? Are they supposed to consider whether there is going to be a big hit on one of the primary technical factors that was supposed to be the weightiest component of the evaluation? I know that price isn't supposed to go directly in front of the technical reviewers, so if the CO bothered to consider that, would that end up considered as a weakness? (Based on the CO's responses though, it certainly seems like price was the decision factor even though it undermined the primary technical factors)

Regardless, we are following the advice given in this thread. We are going to file a letter with the Ombudsman (the other unsuccessful vendor already did for these same issues) and stay in touch with technical leads. We are considering advising them that if they are unhappy with the how the award was made or is implemented, they should reach out to their regional administrator to follow up.

You may be a victim of (in my opinion) the Government oft tendency to “look the other way” during contract administration, particularly in regard to service contract labor issues. 

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Any person or party who feels Service Contract Act requirements are not being followed by any contractor may share their suspicions with the Department of Labor -- the DOL is charged with enforcing SCA compliance, and has appropriate investigatory powers.

Salus, In your appeal to the task order ombudsman, will you provide the names of the agency technical leads who shared with you their dissatisfaction with the outcome and the other facts and insights you have shared here?  One might suppose that specifics will be far more helpful to the ombudsman than generalities.  

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13 hours ago, Salus said:

(that the winning vendor cannot possibly pay market wages)

Should it not be a more refined view?    That the winning vendor cannot pay required wages at the labor hour rate proposed/awarded along with the side note that OT is required by statute and provide the substance to so prove.

Just now, ji20874 said:

Any person or party who feels Service Contract Act requirements are not being followed by any contractor may share their suspicions with the Department of Labor -- the DOL is charged with enforcing SCA compliance, and has appropriate investigatory powers.

Yes but then there is this.....

 

14 hours ago, Salus said:

CO tried to require vendors prove that positions were eligible for OT.

Or in other words and borrowing from other statements in the thread by Salus the CO has made the determination of applicability of SCA (no wage determination in contract?).....and then there is this

22.1015 Discovery of errors by the Department of Labor.

If the Department of Labor discovers and determines, whether before or after a contract award, that a contracting officer made an erroneous determination that the Service Contract Labor Standards statute did not apply to a particular acquisition or failed to include an appropriate wage determination in a covered contract, the contracting officer, within 30 days of notification by the Department of Labor, shall include in the contract the clause at 52.222-41 and any applicable wage determination issued by the Administrator. If the contract is subject to 41 U.S.C. 6707(c), the Administrator may require retroactive application of that wage determination. The contracting officer shall equitably adjust the contract price to reflect any changed cost of performance resulting from incorporating a wage determination or revision.

By my read of the thread a crazy situation where in the end the awarded contractor would have to pay OT and be saved rate wise with the equitable adjustment noted above.

For me Salus has learned some lessons for the future but in the case of the instant procurement discussed herein it is as they say, water under the bridge. 

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22 hours ago, Salus said:

So I guess a question in my mind follows is: Are CO's supposed to consider price reasonableness (that the winning vendor cannot possibly pay market wages)? Are they supposed to consider whether there is going to be a big hit on one of the primary technical factors that was supposed to be the weightiest component of the evaluation?

@SalusPrice reasonableness, a mandatory evaluation factor, is generally a matter of whether a price is too high. See Aviation Ground Equipment Corp., GAO B-417711.2, May 3, 2021:

Quote

It is a fundamental principle of federal procurement law that procuring agencies must condition the award of a contract on a finding that the contract contains “fair and reasonable prices.” Federal Acquisition Regulation (FAR) 15.402(a), 15.404-1(a). See Crawford RealStreet Joint Venture, B-415193.2, B-415193.3, Apr. 2, 2018, 2018 CPD ¶ 121 at 9. The purpose of a price reasonableness analysis is to prevent the government from paying too high a price for a contract. Crawford RealStreet Joint Venture, supra

You seem to think the winner's price was too low to pay the wages that you think are necessary to ensure that the winner can hire quality people. That is a matter of price realism. Price realism is not a mandatory evaluation factor. See FAR 15.404-1(d)(3). Did the RFP say or otherwise clearly indicate that the agency would evaluate price realism? Did the RFP include FAR 52.222-46, Evaluation of Compensation for Professional Employees? If not, then they did not have to evaluate that factor.

No one at Wifcon can fairly say what the agency should or should not have done without seeing the exact wording of the solicitation or request for task order proposals, which you have not provided, unless I missed it. Even then, the language would be difficult to interpret out of the context of the rest of the proposal preparation instructions. In my opinion, some of the speculations here have been unfounded.

What you are learning is that source selection is a complex problem that involves many subtleties. You cannot understand it without considerable study and experience. Maybe your company should hire someone who knows the business.

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Sorry, sloppy on my part, because my question was about price realism. Price reasonableness was checked at the master contract level (and our rates for this TO were significantly discounted from there). 

The original solicitation had the requirement for price realism under FAR provision, 52.222-46, but they specifically removed that in the amendment. When questioned, they stated that it wasn't in the best interest of the government. This probably created some additional confusion because it is related to professional employees. It really seemed that the agency wanted it both ways, that the employees are all professional enough to be exempt, but not professional enough to have price realism checked.

The evaluation criteria also included the following (from the solicitation, which was subsequently removed during the amendment):

The Vendors Compensation Plan shall be evaluated to ensure that it reflects a sound
management approach and understanding of the contract requirements, such as
• The vendor's ability to provide uninterrupted high-quality work.
• The impact upon recruiting and retention.
• Whether the proposed compensation levels reflect:
o A clear understanding of the contract effort, and
o The capability of the proposed compensation structure to obtain and retain suitably
qualified personnel.

Honestly, when they removed that and the 52.222-46 provision, that gave us a pretty good read that the CO wanted to price to be much more important than what was indicated in the original solicitation, which said:

Factor 1-Technical/Management Approach is the most important factor and Factor 2-Transition Plan is
more important than Factor 3-Past Performance. When combined Factors 1 through 3 are significantly
more important than Factor 4-Price.

But we built a fair amount of our proposal and team around fair wages, recruitment, retention, and cultivating excellent personnel, and couldn't (and wouldn't) redo our proposal to match a 'read between the lines' low cost objective. It feels like the goalposts were not just moved, but relocated to another stadium during the amendment.

Ji, we will include everything but the tech lead/reviewer and their statement. It is up to them to push back on it from the inside if they so desire. In hindsight, shouldn't have even mentioned that here, and I wouldn't ever want to risk getting someone in trouble because it came up in the course of unrelated business that we said that we were disappointed that we wouldn't be working together under that contract, and they indicated that they didn't think anyone got what they wanted. 

Vern, even after doing this side for several years, I understand that I am a newbie, and hiring someone who knows the business much better than I would be nothing but helpful. Also sometimes, red flags are actually red flags. The CO told us that they awarded based solely on price because everyone received the same acceptable ratings. This was after a very drawn out award process where they did things like tell us that we had to justify overtime rates. All the advice and background information provided here has been super helpful in having a better understanding of how we are missing the full picture in source selection. In this case, though, having someone with much more experience and knowledge of the process probably wouldn't have helped. I am saying this as a logical response to the fact that the other unsuccessful bidder absolutely did have multiple people with extensive proposal and government contracting experience (20+ years) and high win rate (and partnered with the incumbent vendor) on their team, and they had the same result (and same concerns). If you come in with decent pay and overtime, you just aren't going to be competitive if it is awarded on a lowest cost basis.

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Having refreshed myself with Part 22 Labor Requirements, I suggest reading 22.103 Overtime. You said the contract was for technical support under a labor hour contract.

I’m assuming that the fixed hourly rates are not varied for overtime work unless there is a specific schedule in the contract for overtime rates.

If you are using the term “overtime” to mean overtime paid at a premium rate, it appears to me that the contracting officer is following government policy by requiring proposers to justify why premium rate overtime is “eligible”.

22.103-2   Policy.

“Contractors shall perform all contracts, so far as practicable, without using overtime, particularly as a regular employment practice, except when lower overall costs to the Government will result or when it is necessary to meet urgent program needs. Any approved overtime, extra-pay shifts, and multishifts should be scheduled to achieve these objectives.

22.103-3 Procedures

(a) Solicitations normally shall not specify delivery or performance schedules that may require overtime at Government expense.

(b) In negotiating contracts, contracting officers should, consistent with the Government's needs, attempt to (1) ascertain the extent that offers are based on the payment of overtime and shift premiums and (2) negotiate contract prices or estimated costs without these premiums or obtain the requirement from other sources.

22.103-3 Approvals

”c) Contracting officer approval of payment of overtime premiums is required for time-and-materials and labor-hour contracts (see paragraph (a)(8) of the clause at 52.232-7, Payments Under Time-and-Materials and Labor-Hour Contracts).

52.232-7(a)(8)

“Unless the Schedule prescribes otherwise, the hourly rates in the Schedule shall not be varied by virtue of the Contractor having performed work on an overtime basis. If no overtime rates are  provided in the Schedule and overtime work is approved in advance by the Contracting Officer, overtime rates shall be negotiated. Failure to agree upon these overtime rates shall be treated as a dispute under the  Disputes clause of this contract. If the Schedule provides rates for overtime, the premium portion of those rates will be reimbursable only to the extent the overtime is approved by the Contracting Officer.”

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Hi Joel, that is a good find. I am guessing that these parts of the regs could be what triggered the issue if the CO kind of worked through the typical requirements for a labor hour contract without really checking the applicability of the procedures. 

This is a labor hour contract, but it is one of those special labor hour contracts where the exact number of hours for each position is prescribed by the government in the solicitation. In this case, they also included overtime specifically in the schedule for many of the positions (up to 50% extra hours for some positions). We did not propose any additional overtime use (and included some methods to reduce overtime use).

So they have stated that overtime will be used (this was an RFQ not an RFP) while apparently trying to include the procedures you reference (though those clauses are not referenced in the solicitation).

So when the government is specifically requiring overtime and including it in the schedule, that would seem to eliminate the requirement that we justify 'eligible' overtime hours for premium pay/rates, or am I mistaken?

It still doesn't explain how we were responsible for providing wage determinations though...

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2 hours ago, Salus said:

So when the government is specifically requiring overtime and including it in the schedule, that would seem to eliminate the requirement that we justify 'eligible' overtime hours for premium pay/rates, or am I mistaken?

It still doesn't explain how we were responsible for providing wage determinations though...

If it was an RFQ , were the labor positions described* or were proposers responsible to define those?

*22.1007   Requirement to obtain wage determinations.

The contracting officer shall obtain wage determinations for the following service contracts:

(a) Each new solicitation and contract in excess of $2,500.

(b) Each contract modification which brings the contract above $2,500 and—

(1) Extends the existing contract pursuant to an option clause or otherwise; or

(2) Changes the scope of the contract whereby labor requirements are affected significantly.

(c) Each multiple year contract in excess of $2,500 upon—

(1) Annual anniversary date if the contract is subject to annual appropriations; or

(2) Biennial anniversary date if the contract is not subject to annual appropriations and its proposed term exceeds 2 years—unless otherwise advised by the Wage and Hour Division.”

 

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Yep you should not have been responsible for obtaining the wage rate determination. 

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Like usual without all the full details there seems to lots of questions regarding the government approach expressed in the RFQ, how it relates to the parent contract, etc.

Two additional thoughts have come to mind as I follow...

How the positions line up with the SCA Directory of Occupations?   Regardless of what the government names a labor category if the required tasks are equal to a SCA category might be a leg up to argue the OT matter as well.

The conformance process might be an avenue as well.  Described on a wage determination and in FAR 22.

Offered without additional detail, just as thoughts if the OP has not considered.

 

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5 hours ago, C Culham said:

Like usual without all the full details there seems to lots of questions regarding the government approach expressed in the RFQ, how it relates to the parent contract, etc.

All of the posts in this thread, and all of the speculative responses that have followed from people who have not seen the solicitation and who have had no other source of information, have been based on a one-sided and often confusing description of one acquisition by one employee of one disappointed competitor.

"There are eight million stories in the naked city. This has been one of them."

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1 hour ago, Vern Edwards said:

All of the posts in this thread, and all of the speculative responses that have followed from people who have not seen the solicitation and who have had no other source of information, have been based on a one-sided and often confusing description of one acquisition by one employee of one disappointed competitor.

"There are eight million stories in the naked city. This has been one of them."

True

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