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Good day,

Purpose: I am soliciting feedback on the following scenario for the purpose of understanding better how discussions held in a FAR Part 8 setting work and if the below scenario passes your sniff test as experienced 1102's.

Scenario: a significant weakness or deficiency is identified in a quoter's submission in an FSS order (FAR 8.4). Past Performance was not an evaluation factor in the RFQ. To address this issue the Contracting Officer decides to enter discussions to allow the vendor opportunity to be eligible for award. Contracting Officer looks to the procedures laid out in FAR 15.306(d) for guidance on how to fairly conduct the discussions as FAR 8 is silent on the matter. The Contracting Officer understands FAR 8.404(a)'s principle regarding FAR 15 but in light of the need for discussions decides to use it for guidance.

Contracting Officer reads the following in FAR 15.306(d):
 

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At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting officer judgment.


The Contracting Officer sends out discussion letters addressing only the required elements (deficiencies and significant weaknesses) without addressing regular weaknesses. 

Question: Does the Contracting Officer's act of not addressing weaknesses with any quoter constitute a problem/issue? 

 

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1 hour ago, TechnicallyAcceptable said:

I am soliciting feedback on the following scenario for the purpose of understanding better how discussions held in a FAR Part 8 setting work and if the below scenario passes your sniff test as experienced 1102's... The Contracting Officer sends out discussion letters addressing only the required elements (deficiencies and significant weaknesses) without addressing regular weaknesses...

Question: Does the Contracting Officer's act of not addressing weaknesses with any quoter constitute a problem/issue? 

Here's what the GAO said on August 6, 2021, in MAXIMUM Federal Services, Inc., B-419487.2, 

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To satisfy the requirement for meaningful discussions, an agency need only lead an offeror into the areas of its proposal requiring amplification or revision; all-encompassing discussions are not required. Id. Agencies are not required to “spoon-feed” an offeror during discussions by identifying every possible area where a proposal might be improved or suggesting alternative approaches. Torrent Techs., Inc., B-419326, B-419326.2, Jan. 19, 2021, 2021 CPD ¶ 29 at 12. Agencies have broad discretion to determine the content and extent of discussions, and GAO will limit its review of the agency's judgments in this area to a determination of whether they are reasonable. InfoPro, Inc., B-408642.2, B-408642.3, Dec. 23, 2014, 2015 CPD ¶ 59 at 9.

They've said that or something like it in more than 250 decisions going back to 1986.

See also Bodell Construction Company, B-419213, December 28, 2020:

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While discussions must address deficiencies and significant weaknesses identified in a proposal, they need not be all-encompassing; agencies are not required “spoon-feed” offerors, or to discuss every weakness in a proposal that is found to be technically acceptable, but that receives less than the maximum possible score. Id.; LexisNexis, a Division of RELX Inc., B–418885, B–418885.2, Oct. 8, 2020, 2020 CPD ¶346 at 8.

They've said that or something like it in more than 35 decisions going back to 1980.

I'll add that contracting officers should not conduct anything called "discussions" in FAR Subpart 8.4 acquisitions.

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3 hours ago, TechnicallyAcceptable said:

a significant weakness or deficiency is identified in a quoter's submission in an FSS order

So why was a quote entertained from the FSS contractor in the first place?   

And my read of FSS MAS ordering guidance simply suggests evaluation and the award.  As Vern notes as well as you that "discussions" is a FAR 15 process and not recommended for FSS MAS orders.

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6 hours ago, Vern Edwards said:

Here's what the GAO said on August 6, 2021, in MAXIMUM Federal Services, Inc., B-419487.2, 

They've said that or something like it in more than 250 decisions going back to 1986.

See also Bodell Construction Company, B-419213, December 28, 2020:

They've said that or something like it in more than 35 decisions going back to 1980.

I'll add that contracting officers should not conduct anything called "discussions" in FAR Subpart 8.4 acquisitions.

Thank you kindly for the reference material. Can you tell me what exchanges would be appropriate in a FAR Subpart 8.4 procurement when there are competitive quote for a service procurement where a tradeoff is being conducted and significant weaknesses or deficiencies are identified with one or more quoters?

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11 minutes ago, TechnicallyAcceptable said:

Can you tell me what exchanges would be appropriate in a FAR Subpart 8.4 procurement when there are competitive quote for a service procurement where a tradeoff is being conducted and significant weaknesses or deficiencies are identified with one or more quoters?

For what purpose are you trying to categorize an exchange of information in a FAR subpart 8.4 procurement? 

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@TechnicallyAcceptable

9 hours ago, TechnicallyAcceptable said:

Can you tell me what exchanges would be appropriate in a FAR Subpart 8.4 procurement when there are competitive quote for a service procurement where a tradeoff is being conducted and significant weaknesses or deficiencies are identified with one or more quoters?

From your opening post:

17 hours ago, TechnicallyAcceptable said:

I am soliciting feedback on the following scenario for the purpose of understanding better how discussions held in a FAR Part 8 setting work and if the below scenario passes your sniff test as experienced 1102's... The Contracting Officer understands FAR 8.404(a)'s principle regarding FAR 15 but in light of the need for discussions decides to use it for guidance.

You have indicated that your office is conducting a competition pursuant to FAR Subpart 8.4. I presume that you are proceeding under FAR 8.405-2, "Ordering procedures for services requiring a statement of work." However, your office, or maybe just your PWAC contracting officer, seems to suffer from FAR Part 15 Obsession Syndrome.

The words "exchange," "discussion," "clarification," "weakness," and "deficiency" — all from FAR Part 15 — do not appear anywhere in FAR Subpart 8.4. However, given your office's apparent determination to conduct a FAR Part 15 style competition, I suspect that its RFQ refers to one or more of those terms and otherwise reflects its Part 15 obsession.

But since I have not seen or read your RFQ, I'm will not give you any guidance or advice beyond what I provided in my earlier post, except to suggest that you read this, from Innovative Management & Technology Approaches, Inc., GAO decision B-418823.4, January 8, 2021, in which the GAO sustained a protest against the conduct of an 8.4 competition by an office like yours:

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Where an agency conducts exchanges with vendors in a FAR subpart 8.4 procurement, those communications--like all other aspects of such a procurement--must be fair and equitable. USGC, Inc., B-400184.2 et al., Dec. 24, 2008, 2009 CPD ¶ 9 at 3. While the requirements of FAR part 15 do not apply to procurements conducted under FAR subpart 8.4, our Office looks to the standards and the decisions interpreting part 15 for guidance in determining whether exchanges with vendors under a FAR subpart 8.4 procurement were fair and equitable. Id. In this regard, FAR 15.306 explains that discussions occur when an agency communicates with a vendor for the purpose of obtaining information essential to determine the acceptability of a proposal or quotation, or provides the vendor with an opportunity to revise or modify its proposal or quotation. Arrington Dixon & Assocs., Inc., B-409981, B-409981.2, Oct. 3, 2014, 2014 CPD ¶ 284 at 9; see FAR 15.306(d).

I also suggest that your contracting officer educate themself about FAR Part 15.

Finally, I suggest that you read this, http://www.wifcon.com/anal/analcomproc.htm , before you conduct your next 8.4 competition.

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15 hours ago, Vern Edwards said:

Agencies have broad discretion to determine the content and extent of discussions, and GAO will limit its review of the agency's judgments in this area to a determination of whether they are reasonable. InfoPro, Inc., B-408642.2, B-408642.3, Dec. 23, 2014, 2015 CPD ¶ 59 at 9.

Vern quoted the above  from a GAO Decision on August 6, 2021, in MAXIMUM Federal Services, Inc., B-419487. 
 

9 hours ago, TechnicallyAcceptable said:

Thank you kindly for the reference material. Can you tell me what exchanges would be appropriate in a FAR Subpart 8.4 procurement when there are competitive quote for a service procurement where a tradeoff is being conducted and significant weaknesses or deficiencies are identified with one or more quoters?

My guess is that Technically Acceptable is a contractor, so may not be able to answer the questions posed by the others here.

The government has discretion about the level or depth of exchanges. Whether it is appropriate or not depends upon the purpose of the exchanges. Yes, discussing in more depth might be beneficial to the government to obtain a better award. 

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3 hours ago, Vern Edwards said:

Maybe you're right, but the OP referred to "experienced 1102s," which doesn't read like something a contractor would write. 

Perhaps. 

 

4 hours ago, joel hoffman said:

The government has discretion about the level or depth of exchanges. Whether it is appropriate or not depends upon the purpose of the exchanges. Yes, discussing in more depth might be beneficial to the government to obtain a better award.

Depends upon what the “weaknesses” are, whether or not they would affect performance, whether or not they are curable, important, substantial, fatal, would cost money after award to fix, etc.

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As everyone else here has noted, don't mix FAR 15 and FAR 8.4. 

Vern's quoted GAO decision has the key phrase - " fair and equitable."

What's important is not so much what the CO tells to one particular offeror, but rather how the CO treats the offerors with respect to each other.   Whatever criteria the CO uses to engage with one vendor should be used for all vendors.   This isn't complicated, nor does this criteria need to be mechanistically implemented.  The CO's criteria could be quite straight-forward 'I'm not going to bother telling offerors about 'weaknesses' that are unlikely to have an impact on who gets awarded."     

In your case, what the CO is doing regarding 'discussions,' while not the preferred method (using FAR 15 procedures), does appear to be 'fair and reasonable' because they are treating the offerors the same.

Usual caveats apply.

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