Hello Everyone,

Does a contracting officer have the ability to remove a selected TEP member from the evaluation if they do not have the technical knowledge to evaluate proposals.

That is not expressly covered in the procurement regulations. That is likely a matter of agency policy. The CO should raise the issue with their superiors. But see FAR 15.303.

On 8/13/2024 at 10:27 AM, P-Ferg said:

Hello Everyone,

Does a contracting officer have the ability to remove a selected TEP member from the evaluation if they do not have the technical knowledge to evaluate proposals.

If the contracting officer is the Source selection authority, they have the authority and responsibility to establish the evaluation teams, right? If the KO is not the SSA, obviously they should consult with the SSA.

FAR 15.303

“(b) The source selection authority shall-

(1) Establish an evaluation team, tailored for the particular acquisition, that includes appropriate contracting, legal, logistics, technical, and other expertise to ensure a comprehensive evaluation of offers;”

Please define the role of the “TEP” (Technical Evaluation Panel) as used here. Is this an advisory team to a source selection evaluation board SSEB or similar term)?

I don’t know what your agency is (assuming that you are the KO and the Source selection authority). But the DFARS 215.303, DOD Source Selection Procedures, and PGI 215.303 are consistent with the FAR.

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If you are a supervisor of the person on the TEP or the person on the TEP, I will say that the answer is yes, the SSA/KO can remove your member or you.

That includes a member representing a client organization or agency.

Of course we don’t know any particulars, including the affected organizations or agencies. Or the magnitude of the acquisition. 

—————————————-

You can look up the definition of “establish”

The SSA/KO is responsible for the proper and professional conducting of the SS.

So, someone assigned to a technical evaluation  panel to technically evaluate proposals and advise a source selection evaluation panel or the SSA/KO is unqualified to technically evaluate the proposals.

What value do they add and what business do they have being involved with source selection sensitive/confidential information?

Do you need a replacement for the person? 

Since the KO isn’t the technical representative’s supervisor, I would advise that the KO discuss the situation with the supervisor and seek a replacement, if necessary.

i don’t disagree with Vern’s recommendation . But II think that the FAR establishes the SSA/KO’s responsibility and apparent authority to “establish” the teams and add or replace members - especially of advisory panels to the SSA/KO and SSEB.

Coordinate with superiors and other offices as much as possible to maintain relationships but don’t shrink from your “duty”.

The Government agency also has a duty to industry to professionally evaluate solicited proposals using qualified, knowledgeable persons.

Ive personally seen a situation where, after depositions of members and the KO, a Board of Contract Appeals directed replacement not only of the SSEB but also the KO. The KO returned their warrant, refusing to serve as KO in the future.

7 hours ago, Vern Edwards said:

That is not expressly covered in the procurement regulations. That is likely a matter of agency policy. The CO should raise the issue with their superiors. But see FAR 15.303.

Exactly.  The process varies by agency.  P-Ferg, check with your agency procedures. 

Rather than a contracting officer trying to remove an evaluator on their own, it’s more prudent for the CO to discuss issues first with their management and then with the technical evaluators management.  If it’s a legitimate concern, mostly likely it can be resolved through frank conversations.  

Yeah; good luck with that.  I basically had to assume the role of TET lead because the entire technical team was an arrogant, ignorant, incompetent bunch of stewed cabbages. My justification was that it was Part 16 therefore the technical team were 'advisors'.  I found out after award that the DHS PIL was holding meetings with the TET on an active competitive procurement without my knowledge. The protest decision is due in 2 weeks. 

For those of you in DoD, on the civilian side the program technical/engineering expertise is atrocious. I have Theatre majors acting as CORs on billion-dollar A-E contracts and no one bats an eye.

On 8/19/2024 at 1:48 PM, joel hoffman said:

Ive personally seen a situation where, after depositions of members and the KO, a Board of Contract Appeals directed replacement not only of the SSEB but also the KO. The KO returned their warrant, refusing to serve as KO in the future.

@joel hoffman That sounds interessting. Can you cite that BCA case? Was it the GSBCA?

You have to be careful about kicking a person off an evaluation board and how you do it. Such an action might be considered an adverse (personnel) action under OPM rules. See the OPM Glossary of Terms Used in Processing Personnel Actions:

Quote

ADVERSE ACTION—A personnel action considered unfavorable to an employee, e.g., removal, suspension, furlough, or reduction in grade or pay. (5 U.S.C. chapter 75 and 5 CFR part 752)

 

8 hours ago, Vern Edwards said:

@joel hoffman That sounds interessting. Can you cite that BCA case? Was it the GSBCA?

@Vern Edwards, it was about 30 years ago.

Yes, it was the GSBCA.

GSBCA 13003-P

HSQ TECHNOLOGY

Protestor and

WILLIAMS ELECTRIC

Intervenor,

 v.

DEPARTMENT OF THE ARMY

Respondent,

 and

JOHNSON CONTROLS, INC

Intervenor.

Dismissed

HSQ Technology submitted a canned protest to GSBCA within one hour of being notified of the contract award by the Mobile District , US Army Corps of Engineers, complete with alleged reasons, etc.  They couldn’t have known because nothing about the evaluation had been disclosed and we didn’t have the opportunity to debrief anyone.

There are two GSBCA Decisions. I have provided the links that I found below. 

The first decision doesn’t include any details.  The protestor and intervenor agreed to withdraw the protest because the Army agreed to re-evaluate the proposals.

I’m going from memory on details. But I have some vivid memories due to personal frustration with that decision and the whole protest process.

Here is the Link to the First Protest:

https://www.gsbca.gsa.gov/oldprotests/d130031.txt

This was a late add project in the late Spring of 1984. Proposals were received in late August or early September. Award was made without discussions because of limited time remaining to award and the fact that the Corps didn’t feel that the lower priced proposal could be technically improved, the other unsuccessful proposal didn’t offer any advantages and (I think) was the highest priced offer.

Initial award was made to the highest technically rated and either highest priced or second highest priced offer (I don’t remember and the details of the initial protest were unpublished). Without going into too much detail, the protestor’s proposal was marginally compliant and was the lowest priced proposal.

The GSBCA, referenced an earlier 1994 GSBCA Decision  “Widnal vs.B3H”  (US Air Force),  where that Board stated that every tangible and intangible advantage in a technical factor and performance capability factor over those aspects of a lower priced proposal  had to be quantifiable in $$ to justify award to the higher priced proposer over the lower priced, technically acceptable proposer. Nobody, including our Office of Counsel or the HQ attorney assigned to the protest was aware of the B3H Decision at that time.

Plus, our District weren’t even aware that the GSBCA had jurisdiction over protests for this type of acquisition. 

We asked our HDQTRS Office of Counsel to urge the Air Force to Appeal the B3H Decision. I can’t  find a reference to a Court of Appeals case but the Air Force was successful some time later in getting that Decision overturned.

The Protestor’s well practiced attorney deposed every member of the SSEB as well as the KO/SSA and me. I was the “professional advisor to the SSEB”, author of the Source selection portion of the solicitation, SSEB moderator and recorder, working directly for the KO and Chief of Contracting. The KO was primarily working service and supply contracts. This was the first Construction SS for that young KO.

Unfortunately, the sister District that would be administering the contract at Ft Riley sent a non-engineer, construction rep to the SS as that District’s member of the SSEB. It turned out that that person was NOT technically qualified to be on the SSEB. He struggled to keep up throughout the Consensus evaluation and writeup.

During his deposition, he became so “flustrated” that he couldn’t state his own name at the beginning of the interview because he was tongue-tied. And he couldn’t remember much about the consensus evaluation, ratings or conclusions.

This was a case where we should have replaced him but didn’t have adequate time to delay the SS in order for someone else from that District to be appointed , familiarize themselves with the solicitation and  the project and travel across country and start the evaluation over. We also didn’t suspect that there would be a protest. We hadn’t had any protests in my previous years handling Source Selections.

The KO’s interview was as bad as the Board member - actually worse - [He or She] had zero technical knowledge or expertise in the complex area of operation of and controls for an electronic Utility (and every building system (e.g., electrical, HVAC, lighting, security, communications, fire suppression, plumbing, etc) Monitoring and Control System.He/She lost composure and overcome by emotions during the deposition.

The KO was briefed by the project manager, the project engineer, who wrote the technical requirements, and me, before making the selection but relied on the SSEB reports and recommendation.

The KO turned in [his][her] KO warrant after the protest.

The Corps agreed to re-evaluate the original proposals and to replace the SSEB and KO.  So the protestor and intervenor agreed to withdraw the protest.

The 1995 second Protest after  re-evaluation of the original proposals resulted in the same selection by an completely independent SSEB, technical evaluation team TEB and KO (our seasoned Chief of Contracting), resulted in the same award for similar reasons as the initial Award.

This time, the USACE Headquarters Office of Counsel assigned a sharp Army Captain attorney to the Protest. In reading the linked protest, USACE convinced GSBCA that they had no jurisdiction over the acquisition because it wasn’t Federal Information Processors FIP, thus wasn’t subject to the Brooks Automatic Data Processing Act.

I believe that HSQ appealed the Decision to an Appeals Court and the Appeals Court affirmed the Decision but it was well over one year of delays in awarding the Contract, which was transferred to Kansas City District for execution. 

The second Protest can be read here:

https://www.gsbca.gsa.gov/oldprotests/d132800.txt

Shortly thereafter, Congress Repealed the Brooks ADP Act and GSA lost its jurisdiction over DoD Federal Information Processing Equipment acquisitions.

And the Corps of Engineers established Multiple Award ID/IQ contracts for the three different types of Utility Monitoring and Control Systems UMCS, which I think ended the endless string of Protests.

7 hours ago, Vern Edwards said:

You have to be careful about kicking a person off an evaluation board and how you do it. Such an action might be considered an adverse (personnel) action under OPM rules. See the OPM Glossary of Terms Used in Processing Personnel Actions:

Understood.

In my case, it was two senior Air Force Officers who weren’t listed in the Source Selection Plan.  They attended the beginning of the Source Selection Evaluation Board meeting before we began with introductions, overview,  and SSEB and Technical Evaluation Panel (TEP) training for the 3-5 day long evaluation and award recommendation process.

8 hours ago, Vern Edwards said:

ADVERSE ACTION—A personnel action considered unfavorable to an employee, e.g., removal, suspension, furlough, or reduction in grade or pay. (5 U.S.C. chapter 75 and 5 CFR part 752)

Replacing a civilian employee on a Technical evaluation panel or even on a source selection evaluation board is not an adverse personnel action under this definition. It’s simply a temporary assignment not involved with their employment position or status. 

I do remember asking an SSEB member to recuse themself after discovering they had a conflict of interest upon advising the members of the identities of the proposers and asking them if they had a conflict of interest.  

Thanks for the info, Joel.

Rule 17 violation.