joel hoffman

One must define what the “technical factors” are in each solicitation. EDIT: That was done in each of the GAO decisions that Vern referenced. And that should be evident by a reading of FAR 15.3 (15.304 and 15.305), for instance. We don’t know here what, if any, “technical” (non-price) factors would be necessary using a simplified acquisition approach under 13.5**. That’s why I didn’t define “technical criteria” (should have said “technical factors” instead or better yet, “non-price factors”, though). ** Don asked @lawyergirl earlier IF a reasonable price from any responsible offerer, based solely on the responsibility criteria under 9.104-1, would be an acceptable approach to the agency.

Are you suggesting that the second sentence might be ambiguous? Does “assess their relative qualities” refer to the quality of an individual proposal relative to the specified, individual factor/subfactor criteria and applicable rating scale? Or does it mean assessing (comparing) the relative qualities between competitive proposals solely on the specified factors and subfactors? I think here that it is referring to the evaluation of each individual proposal. The trade-off analysis is discussed separately but in very sparse detail. Maybe not. That detail wasn’t what I was looking for in my post though. I was focused on “technical”, as in “technical factors”, “technical evaluation” and “technical [evaluation] “criteria”. The FAR 15.3 usage of the word “technical” isn’t consistent other than distinguishing between non-price and price factors.

Vern, one thing in common in the sample GAO decision quotes was that “technical factors” referred to non-price/cost factors, which were defined in various ways in each solicitation. I reviewed FAR 15.3, in particular 15.304 and 15.305 in detail to refresh my memory about how the non-cost or non-price factors were described. I’ll start with 15.304 because it specifically mentions “technical evaluation” , “technical proposal” and “the proposal factors” for the technical proposal factors. It is noted that past performance evaluation is listed separately from the technical evaluation. Both technical and past performance refer to an offeror's ability to perform the contract. Some of the GAO Decisions included.past performance in the “technical factors” applicable to those Decisions. “15.305 Proposal evaluation. (a) Proposal evaluation is an assessment of the proposal and the offeror’s ability to perform the prospective contract successfully. An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation… (1) Cost or price evaluation… (2) Past performance evaluation. (i) Past performance information is one indicator of an offeror’s ability to perform the contract successfully… (3) Technical evaluation. When tradeoffs are performed (see 15.101-1), the source selection records shall include- (i) An assessment of each offeror’s ability to accomplish the technical requirements; and (ii) A summary, matrix, or quantitative ranking, along with appropriate supporting narrative, of each technical proposal using the evaluation factors.” Every evaluation factor generally has “evaluation criteria” in order to accomplish the evaluation and rate the factor. In reviewing 15.304 , we find that the various non-price factors are grouped as the “quality of the product or service”, considering one or more “non-cost evaluation factors” such as those listed, including past performance. Then past performance is noted as generally a mandatory evaluation factor. “15.304 Evaluation factors and significant subfactors. (a) The award decision is based on evaluation factors and significant subfactors that are tailored to the acquisition… b) Evaluation factors and significant subfactors must- (1) Represent the key areas of importance and emphasis to be considered in the source selection decision; (2) Support meaningful comparison and discrimination between and among competing proposals. (c) The evaluation factors and significant subfactors that apply to an acquisition and their relative importance, are within the broad discretion of agency acquisition officials, subject to the following requirements: (1) (i) Price or cost to the Government shall be evaluated in every source selection [with certain exceptions] (2) The quality of the product or service shall be addressed in every source selection through consideration of one or more non-cost evaluation factors such as past performance, compliance with solicitation requirements, technical excellence, management capability, personnel qualifications, and prior experience… (3) (i) Past performance, except as set forth in paragraph (c)(3)(iii) of this section, shall be evaluated in all source selections for negotiated competitive acquisitions expected to exceed the simplified acquisition threshold… (4) For solicitations, that are not set aside for small business concerns, involving consolidation or bundling, that offer a significant opportunity for subcontracting, the contracting officer shall include proposed small business subcontracting participation in the subcontracting plan as an evaluation factor…” This just reminded me that I may have used the overarching terms “Quality Proposal” and “Price Proposal” Volumes consistent with 15.304. For design build solicitations, the Quality proposal was further divided into Technical Design (Volume I) and Performance Capability (Volume II - all the other non-price Factors) for the separate evaluation teams. When we evaluated the quality and/or technical aspects of proposed critical equipment choices or material selections on straight construction solicitations, Volume I would consist of that information.

By the way, the terms “technical proposals”, “technical evaluation factors”, evaluation criteria, etc. have been widely used over the course of several decades in solicitations to refer to non-price portions of proposals, regardless of whether the FAR has defined it. I developed the term “performance capability” in circa 1990 to differentiate “technical evaluation factors” pertaining to such things as organization, management, key personnel, experience, past performance, scheduling capability, etc. from other “technical factors” for solicitations for construction and design-build source selections. The other “technical factors” pertain to means, methods, materials, design features, etc. That spread across the overall USACE and I’ve seen the term used outside of USACE. We segregated the two types of technical factors into separate proposal volumes to facilitate proposal evaluation by the different evaluator teams. Often, there were only “Performance Capability” and “Price” proposal volumes. But it’s like Sola Scripura I suppose. If it’s not in the FAR, it never happened/doesn’t exist. Other than an outline of two-phase design-build selection process in FAR Part 36 (36.104 and 36.3), the FAR doesn’t even have any coverage for the unique aspects, revised roles, responsibilities and risk allocation of the contractor and government for D-B contracting. Anyone attempting to do D-B contracting is left on their own to figure out how to write a D-B contract or to actually use the process. That’s another story that I’m directly familiar with.

Why is the latter so complicated? If you know what your rates were and what their costs were in each year, I think that it shouldn’t be too difficult to burden those costs accordingly. It’s five calculations… It would seem to be a more accurate representation of the actual contract costs for those years. I read your initial post as that the sub has provided adjusted rates for each year. I imagine that @here_2_help (H2H) can advise you here whether you apply your current rates to the current invoice or adjust for the adjusted yearly costs accordingly.

But based upon the stated scope of the intended contract, I doubt that they wouldn’t require and wouldn’t evaluate non-price factors or limit such to the responsibility determination of the lowest, reasonably priced offer. Could they use an LPTA approach, announcing that the agency would evaluate only the technical acceptability and responsibility of the lowest reasonably priced offer under FAR 13.5? If not technically acceptable, then the next lowest reasonably priced proposal would be evaluated, etc. This approach could potentially fail to result in an affordable contract within the compressed time limit for award. But it would save time by not having to technically evaluate every proposal. EDIT ADD: However, there would have to be sufficient time allotted for industry to organize teams and prepare the “technical” (non-price) proposals.

I meant that only price related factors would be evaluated for reasonableness, in addition to the mandatory responsibility determination, “[if] any contractor that met general responsibility standards at FAR 9.104-1 [would] be sufficient.”

Yes, I didn’t see the 1 in front of the 4. See Don’s earlier questions concerning whether or not the government could accept a reasonable price from any of the offeror’s who meet the responsibility criteria. That’s why I said “if there were no technical evaluation criteria…” and if using SAP for commercial services. EDIT: I should have said “no technical evaluation factors” [which will have associated evaluation criteria].

All the more important to develop good working relationships between government and contractor…

The question is this: Where is this required in the contract or referenced in the contract?

Note: SIGAR is Special Inspector General for Afghanistan Reconstruction

Where is and what is the specific due date that you are referring to ?

I suggested the essence of this, including issuing the synopsis early and including a preliminary draft requirements portion of the solicitation package last mid-week. If there is no technical evaluation criteria and using simplified acquisition methods, why should it take eleven days to evaluate and award a contract (or three) for about $4 1/2 million total effort. I don’t know if they could pull this off or if the OP has made this or any other suggestions to their client yet. After all, the clock is ticking!!

It shouldn’t take 11 days to award one or even three separate contracts if they only ask for price proposals under one solicitation. The extra time could be used for submission of bids/proposals. Our COE District was receiving price only* year end proposals for multiple maintenance/repair and minor construction contracts in Panama in the 1990’s, which were advertised subject to availability of funds. Many were within the last week of the fiscal year. US Southern Command couldn’t make funds available to the F&A office until they were able to determine that how many O&M funds were still available. Our Contracting/F&A/legal offices were busy awarding contracts up to midnight on the last day of the FY. The contractor community was well aware and onboard with the situation every year. This was prior to implementation of full electronic contracting and accounting systems *OCONUS May use price only RFP’s.

I agree with you.

Ok, so what? Publish the synopsis at least 40 days before the receipt of offers/quotes. And why not publish a preliminary draft of the solicitation requirements with the synopsis stating that it is for preliminary information only and that there will be an expedited period for submitting offers after issuing the final solicitation. This could include a statement encouraging interested parties to start organizing and seek team members, etc. It may be out of the ordinary to maximize the opportunity to publicize the upcoming solicitation and critical schedule for offers and award. The agency might not be able to adapt anything other than doing “business as usual”. EDIT: See, for instance, FAR 15.201 “Exchanges with industry before receipt of proposals” for some ideas and methods to notify and communicate with and familiarize industry with upcoming solicitation and short periods for submission and award. If using simplified acquisition procedures in FAR 12.202, FAR 13.5, I don’t think that the KO is prevented from considering using applicable tools and methods described in 15.201.

@Retreadfed we can’t seem to get flustered to state what the contract specific period of performance is defined as for their contracts. Flustered did state that the periods of performance for two contracts have expired. So, I will guess that the government can’t unilaterally require that Flustered continue to provide construction advisory services after the period of performance for such services has expired.

It’s apparently commercial services. So they can use simplified acquisition method under 13.5. They could probably seek bids or price only proposals/quotes if they don’t need to do a technical evaluation and instead rely on a responsibility determination under FAR 9.1 of the lowest price. Am I correct about that? I still think they ought to expedite the preparation of the solicitation to provide a longer lead time. I have a feeling that it may be it’s a “business as usual” effort.

Wow, this appears to be a technically challenging scope of work. The solicitation, short response and evaluation times don’t look reasonable to me. i suggest expediting the preparation of the solicitation package. And, if possible, publicize a draft solicitation.

@lawyergirl Another suggestion is the requirements team could work overtime to expedite preparation and issuance of the solicitation. Our USACE Division Commander once ordered Engineering Directorate to direct our Program A/E to work whatever overtime necessary to expedite designs for massive engineering change proposals. This was to minimize time/schedule and rework impacts to the active contracts for construction of large Chemical Weapons Disposal Plants. Both Engineering and the A/E resented the overtime work but it was absolutely necessary. Both Engineering and the A/E had little understanding of the time impacts of ECP’s and were used to taking their sweet time in issuing designs and design revisions. Your client might be very resistant to the idea of expediting the issuance of the solicitation or to providing advance notice/draft version for industry notice and familiarization. Our A/E contract was cost reimbursement, long term (decades). The construction portion of the Systems contracts affected by ECP’s for the various plants were FFP, after previous CPFF contracts for the earlier plants of similar design. This shift from CP to FP construction contracts in the on-going, evolving program required a massive mental shift and learning curve by all involved government agencies, including ours as well as the A/E and state regulatory agencies.

@lawyergirl Any Synopsis/pre-solicitation notice should amply precede your agency’s solicitation date. If possible, they could also publish a draft of the requirements/ preliminary solicitation, etc. for information only. I will echo formerfed’s inquiry for more details - without any idea of the scope of what your client is planning to buy, we are mostly throwing darts at a huge target (universe of acquisitions)..

But see 5.203 (c) for commercial products (supplies) and services: “c) Except for the acquisition of commercial products or commercial services (see 5.203(b)), agencies shall allow at least a 30-day response time for receipt of bids or proposals from the date of issuance of a solicitation, if the proposed contract action is expected to exceed the simplified acquisition threshold. (d) Agencies shall allow at least a 30 day response time from the date of publication of a proper notice of intent to contract for architect-engineer services or before issuance of an order under a basic ordering agreement or similar arrangement if the proposed contract action is expected to exceed the simplified acquisition threshold.”

Another reason to consider price only IFB and also to allow industry to bid on one or more than one bid schedule. This might also facilitate effective price competition.

Can they issue an Invitation for bids for a single contract award - with price only factor(s) ? Also, does it have to be a single contract or can the government reserve the right to make one or multiple awards from the single solicitation? A task order would require multiple awards of a base contract then the task order(s). That doesn’t seem to be very practicable for such a short deadline.

It appears to me that you may have no further duty to perform any further services if your stated period of performance has expired. But it depends upon the totality of the contract language.