joel hoffman

A performance specification specifies a desired end result, without unnecessarily specifiying the means, methods or materials to achieve those results. Performance specifications also normally include means to verify or for the contractor to substantiate that the specified level of performance has been achieved. The CSI (Construction Specifications Institute) and other organizations provide like definitions of performanceformance specifying. A level of effort specification "prescribes" the means and/or methods to be used to achieve or attempt to achieve some result. Thus, they are a form of prescriptive specifying. I agree with Vern.

What are you contracting for? I've often led or participated in discussions concerning pricing in competitive acquisitions for construction and design-build contracts but won't go into details unless that is what your acquisition concerns. Suffice to say that you can explore areas of differences in pricing, discuss scope and pricing issues and seek price reductions, clarify and/or revise unclear, incorrect or excessive requirements, seek alternative solutions to meet your requirements, where appropriate. Discussions can be a very effective means of achieving two way exchanges of information.

You said "I guess I was not thinking about scope in terms of hours but in terms of the additional work being requested due to the unknowns that remains in scope of the PWS." Notwithstanding your choice of terms, which is confusing, a basic question is "are you increasing the actual 'scope of work' that is described in the contract?" I can see a possible scenario where the government described the scope of work that was/is(?) described in the "PWS" in the RFP, the contractor may have proposed a certain level of effort that it said it would provide to perform that scope of work and then the government included that level of effort into the contract as a requirement to assure that the contractor would actually provide it. Is your scenario similar to this? Then a question would be was the final intent of the contract to perform a level of effort in order to tackle (pursue completion of ) the necessary work or is it to complete the work that is decribed in the contract? I agree with Vern that you talk to a competent person in your own organization about this. I don't think that you described the actual scenario well enough for anyone to provide a definitive answer.

Then it appears to be a negotiated agreement between a first and second tier sub as to share of their work between them and nothing more.

There may be more to this than first meets the eye. Please explain further: Is this an agreement to team as part of a prime contract proposal or bid process or has the prime contract already been awarded? Please advise me if I am correct in assuming that 1) the subcontractor is asking for a guarantee of "at least 20% of the [contract] work" and 2) the "contract manager" works for the prime? If the prime contract isnt awarded, is the percentage of subcontracting to small business a factor in the selection process? Finally, why does the contract manager say "that the provision would violate the prohibition against contingent fees and the anti-kickback act"?

Had to check out of hotel and drive to work... Yes, I agree. [EDIT: As I Did say and agree] DoD uses an evaluation of past performance in its assessment of their level of confidence that the contractor will successfully perform the contract. The DoD agencies cant "rate" past performance on a pass/fail basis when using the trade-off approach. The DoD policy discusses evaluation of offerors with no relevant past performance history. [EDIT: Please See my edit to post #10 above. My initial reference to PP ratings was with respect to "Contractor Performance Evaluations" , not to source selection performance evaluations. There is a rating system used for evaluating the relevance of the past performance evaluations/ratings to the instant acquisition in step one. Step Two is a confidence assessment, which takes into account the quality of past performance as well as the relevancy of the information.]

Thank God only DoD has to use that system for their Past Performance evaluations. I only described them as examples in response to 2 different questions. In DoD the pass/fail evaluation of PP iis limited to LPTA. The DoD guide describes how they rate a firm with no PP.

The thread initially concerns rating Past performance on a pass/fail basis under a trade-off source selection. The DoD would only do that under an LPTA approach. DoD would otherwise rate PP under a 2 step comparative approach for a Trade-off approach, as described in the DoD Manual. The second question asked how a firm with no past performance is rated wnder a pass/fail system. That is described in the 2 step LPTA acceptable/unacceptable approach.

[EDIT: Please note that I didnt make any mention above of "rating" past performance during the source selection. The past performance ratings that I referred above to are those associated with evaluations of contractor performance and in the performance reports. We use such previously prepared reports, as well as evaluations by references or other documentation of past performance assessment in the private sector to evaluate the relevancy and quality of past performance to be used in step 2 confidence assessment. I don't know if service and supply contracts use "ratings" in their contractor performance evaluations. The evaluation of relevancy of past performance uses "Past Performance Relevancy Ratings"] It is DoD's form of a past performance evaluation system. It is based upon a level of confidence that the contractor will successfully perform the contract. Both the Trade-Off and LPTA processes use a 2 strep process, which are described (though not in depth or clearly in my opinion) on pages 16-19 of the Manual . For step 1, the evaluators determine the relevancy of the past performance information to the instant contract scope. In the LPTA method, the first step only uses the Relevant or Non-Relevant ratings. From page 17: "The SSP shall clearly identify the treatment of relevancy within past performance evaluation." From page A-2: ,"The criteria to establish what is recent and relevant shall be unique to each LPTA source selection. Therefore, the solicitation shall establish the criteria for recency and relevancy in relation to the specific requirement being procured. In establishing what is relevant for the acquisition, consideration should be given to what aspects of an offeror’s contract history would give the most confidence that the offeror will satisfy the current procurement." In the second step, only an "acceptable" or "unacceptable" level of confidence is assigned for past performance per Appendix A. Also refer back to the body of the document for more background. That's what DoD agencies are now required to uss for their PP evaluation. I cited it as an example in response to FSCO's question. The acceptable rating in Appendix A states: "Based on the offeror’s performance record, the Government has a reasonable expectation that the offeror will successfully perform the required effort, or the offeror’s performance record is unknown. (See note below.)" And: "Note: In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available or so sparse that no meaningful past performance rating can be reasonably assigned, the offeror may not be evaluated favorably or unfavorably on past performance (see FAR 15.305 (a)(2)(iv)). Therefore, the offeror shall be determined to have unknown past performance. In the context of acceptability/unacceptability, “unknown” shall be considered “acceptable.”

See Appendix A, pages A-2 through A-3 at the reference I provided above for example. http://www.jacksonkelly.com/jk/pdf/S0327133.PDF

Charlie might be thinking of the Department of Defense Source Selection Procedures, dated 4/4/2011. In its quest for uniformity, the DOD Guide prescribes use of uniform rating systems for the non-price factors and subfactors when using the Trade-Off Process. The DoD's procedures for the trade-off process don't allow the use of a Go/No-Go or Pass/Fail rating system for Past Performance. Although use of acceptable/unacceptable criteria might be allowed for some technical factors with the Trade-off process, the Past Performance factor is further distinguished from the other non-price factors. It is a "confidence assessment" of the offeror’s probability of meeting the solicitation requirements, using a two step evaluation procedure. The first step considers how relevant the past performance information is to the instant acquisition. More relevant past performance ratings have "more influence on the past performance confidence assessment than past performance of lesser relevance." The second aspect of the past performance evaluation is to determine how well the contractor performed on the contracts. Both steps use prescribing rating systems. See the Manual at: http://www.jacksonke...df/S0327133.PDF

I guess I didnt really answer your question about getting the price/cost analysis done. Are you with the contracting agency or with the customer? The contracting agency should have the resources to evaluate proposals. Did they mention anything about the prime having to perform the analyses mentioned above.

That is excellent input from Vern. You were asking about some options available to determine fair and reasonableness of subcontract using cost/price analysis under a Prime Contract subject to TINA (certification required)? I dont know what type of contracting or contract action you are dealing with. I can explain some of my real life experience with negotiating construction contracting for new sole source contracts or modifications, where DCAA audits of primes and/or subs were involved. I don't know DCMA's policies and procedures, though. They might be quite different and the following may not be directly applicable to your situation. Your action might not even require negotiation. The audit can be more effective if a prime has performed some type of realistic cost analysis - which would hopefully include a technical analysis of the sub's approach to the required effort. The DCAA audit is often much more effective if the government contracting agency performs and provides a technical analysis (see 15.404-1 (e )) with the audit request. The Technical analysis may utilize the results of the prime contractor analyses, if provided. The technical analysis may question the technical approach, question the need for or reasonableness of various aspects of the proposal, estimated manhours or equipment, materials, etc. The technical analysis may also steer the auditor toward certain aspects of the proposal that need some price verification or investigation of price basis. Inasmuch as DCAA has limited resources, the more help we can provide may maximize their effectiveness. The neat thing I liked was that the DCAA often incorporated our analysis into the audit, which were reflected in the unsupported or questioned costs identifed in the audit. OKAY - once we get the results of the audit, the government estimate, the technical analysis and any other analysis - THEN we would perform or finalize our cost and price analysis of the proposal in developing the government's pre-negotiation objective, taking into account the proposal, analyses, audit, etc. There is a lot of gobblygook in FAR Supart 15.4. It never has been clear. When it was rewritten in 1997, it was intended to reduce the burden on industry somewhat and to streamline some requirements. It still isnt clear.

You should be asking your lawyer and insurance company these questions. We dont know what insurance requirements are in your subcontract, what type of insurance you are referring to or what kind of coverage for the prime you are referring to. As to your second question, you didn't explain what coverage you provide concerning the prime. If the general contractor is requesting some form of protection under your policy then your policy is modified by endorsement. I'm guessing that this is what you are referring to. Again, it depends upon your subcontract requirement and the additional coverage provided. In the event of a loss under the policy, are you insuring the prime for your acts, acts of the prime or acts of the prime and others? Primes want to protect themselves from liability caused by subs. A prime doesnt want claims that will increase its experience modification factor, causing their workers compensation premium to increase. That's why you should talk to your legal advisor and insurance professionals about what coverage you need.

I have the same question as Don. Has the prime performed - and attached - its cost/price appropriate cost or price analyses to establish the reasonableness of proposed subcontract prices, which helps the government evaluate the reasonableness of the proposal? Perhaps DCMA is waiting for this. It isnt the auditor's responsibility to perform cost or price analysis.

Understood. The suggestion of "you might want to consider.." is probably okay here. I should not have come across as condescending to the poster. There wasn't enough information in the original question to know if the poster had considered anything else and we dont know whether the circumstances warranted the opportunity or value to consider anything other than an award to a conforming offeror. The forum is widely read and a lot of people often take shallow issues as gospel for adoption to real world scenarios. I have noticed a huge tendency to cut and paste a single solution to most any situation. I am involved with some massive programs that required 100's of source selections and large task orders for construction and design-build construction. I found a tendency among some of the organization to not take advantage of the opportunity to negotiate for better performance or pricing, then complain about the end product. I wanted to address some of those other considerations other than making award based upon a conforming proposal, without regard to other possible pricing opportunites. My zealousness sometimes is reflected in my writing. Yep - there is no way of knowing in this situation whether or not that is necessary. It may be a straight forwad purchase of a service or supplies. I will also admit that I read into the question that the other proposal was lower priced but the emphasis or plan was to award without discussions. This might be perfectly acceptable or most practical for some types of acquisitions but not for all.

OK, truce - truce. Vern,please don't take this as personal. Some of the decisions you cited do refer to "evaluating" price. Some use the term "consider", which may or may not have a different connotation than "evaluate". The act of considering often follows an evaluation. HOWEVER - we don't necessarily disagree that one would be within the letter of the law for not "evaluating price" if the proposal is technically deficient. At the risk of repeating myself - just as you here have - I am advocating that the KO should consider more than simply meeting the minimum legal or regulatory requirements. You have certainly commented many times over the years about the importance of the contracting profession looking beyond simple legal sufficiency and that true professionals also exercise sound business judgement. From an agency perspective, I've seen and heard of numerous design-build projects, for instance, where the government awarded without discussions because they had an awardable - but mediocre - design proposal. Proposals with less than optimal features usually come back to haunt the Army or Air Force customer. They raise Heck, then we have to conduct after action reviews, answer the Generals and Colonels, etc. We must live forever with poor architecture or poor building systems, while nobody remembers the speed of the award or a low price. We actually have folks who think that they can't conduct discussions if they have an awardable proposal. Then everyone later bitches for years about what they get.

Vern, thank you for this decision. It validates my point, above. The government evaluated both the prices and the technical proposals, considered the merit and likelihood of obtaining a compliant proposal from the protestor and the likelihood that the price would increase in response to fixing the proposal. Then - it decided that discussions weren't required to obtain the best value. QUOTE: "The CO concluded that all proposals, except Mortenson's, required extensive revisions through discussions and that, based upon her experience, she expected that offerors' proposed prices would increase as a result of the revisions. The CO determined that there was no benefit in conducting discussions and recommended award to Mortenson." In the cited Stetten decision, the agency did evaluate the price of the non-conforming offer as well as the likelihood of a price increase. The GAO did not say that "the agency does not have to go on to evaluate the proposal's price." The GAO said that "the agency was not required to consider the firm's lower proposed price in its tradeoff decision."

To rephrase my earlier post above - others did provide an answer of sorts to the specific question of "the agency does not have to go on to evaluate the proposal's price, right?" However, even if you don't "have to" evaluate the proposal's price, I feel that the acquisition team is also charged with weighing more considerations and should try to obtain the "best value" to the customer and taxpayer. I assume you defined the best value in the acquisition approach chosen. In that case, you "should consider" whether the government might obtain a better price, if you evaluate the proposal price and find that it would provide a better value. Some considerations might include the time and cost to condusct discussions vs. expected benefit of discussions, the nature of the unacceptable aspect or aspects of the lower priced proposal, ease and likelihood of being able to obtain an acceptable proposal, etc. It might be also be feasible that there could be benefits to consider the ease and likelihood of correcting a higher priced proposal if it could result in lower prices upon discussions and the opportunity for a firm to correct deficiencies and revise its pricing. The discussion process might not be worth the effort, time and cost to conduct. Again, it really depends upon the circumstances. I didn't mean to come off as though I'm accusing you of getting away with something. I wished to emphasize that the acquisition team should be concerned with obtaining the best value, considering more than just being able to award without discussions. I don't know if your team has the perogative to take the time and effort to do that or if there would be any value in it. Maybe the unacceptable proposals arent worth messing with or there is no time to do it.

You stated that "there is no need to evaluate the reasonableness of its price or to compare its price to the prices of acceptable proposals." My reply, which I was working on before anyone else posted replies, was meant to advise that there are other considerations, which might mean that it may be advisable to review the pricing of tun acceptable proposals, even if not "required" to. I was not responding to your answer or anyone else's. In fact I hadn't even seen any when I first pushed the post button. Of course, only certain posters on this forum are entitled to "lecture" others on the professionalism expected of the acquisition workforce.

I assume that you are asking if one is permitted not to perform a price analysis or evaluation of specific, lower priced, technically unacceptable proposal, if award can be made at a fair and reasonable price to a conforming proposal. You may also be asking about not having to evaluate pricing of higher priced, technically unacceptable proposals. I believe that there has been previous discussion in this Forum confirming that the agency may have the perogative to use simplied evaluation procedures, such as starting with the lowest price proposal and checking for technical acceptability, then awarding, if it is determined to be fair and reasonable. And others have commented on the "can I get by with this" aspect of your question. Regardless of being able to get by with it, Is your responsibility simply make an award or to also obtain the "best value" for the customer and for the taxpayers, taking various considerations into account? I think both must be considered. This requires the exercise of business judgement, which contracting professionals are supposed to have and use. Some considerations may include the time and cost vs. expected benefit of any possible discussions, the nature of the unacceptable aspect or aspects of the lower priced proposal, ease and likelihood of being able to obtain an acceptable proposal, etc. It might be also be feasible that there could be benefits to consider the ease and likelihood of correcting a higher priced proposal that might also result in lower prices. Again, it really depends upon the circumstances. Below are some FAR principles and responsibilities of the acquisition team, led by the Contracting Officer or other source selection authority for your consideration. I have personally seen many instances where acquisition teams appear to overlook these principles in the quest to simply make an award. Beyond the "Can I get away with it to make an award" aspect, I think that the team is also charged with weighing all considerations and trying to obtain the "best value" to the customer and taxpayer, which you defined in the acquisition approach chosen. “FAR 1.102 -- Statement of Guiding Principles for the Federal Acquisition System. (a) The vision for the Federal Acquisition System is to deliver on a timely basis the best value product or service to the customer, while maintaining the public’s trust and fulfilling public policy objectives.” “FAR 1.102-1 -- Discussion. ...(b ) Vision. All participants in the System are responsible for making acquisition decisions that deliver the best value product or service to the customer. Best value must be viewed from a broad perspective and is achieved by balancing the many competing interests in the System.” “15.302 -- Source Selection Objective. The objective of source selection is to select the proposal that represents the best value.” “15.303 -- Responsibilities. …(b ) The source selection authority shall -- …(6) Select the source or sources whose proposal is the best value to the Government (10 U.S.C. 2305(b )(4)(B ) and 41 U.S.C. 253b(d )(3))." “15.306 -- Exchanges With Offerors After Receipt of Proposals.” ...(d) (2) The primary objective of discussions is to maximize the Government’s ability to obtain best value, based on the requirement and the evaluation factors set forth in the solicitation.”

Tguns, in response to your post #4, you said that you dont want to issue this action as a Termination for Convenience and that you want to issue a unilateral modification. It wasn't clear but you suggested that the Contractor doesnt want to deal with a TFC either. Then, I believe that it would be issued under the Changes clause as a deductive change. In reading the Changes Clause for Cost Reimbursement contracts at 52.243-2, with Alternate 1 or 2 for srvices, the contracting officer may make changes to "...(1) Description of services to be performed." And... "(b ) If any such change causes an increase or decrease in the estimated cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, or otherwise affects any other terms and conditions of this contract, the Contracting Officer shall make an equitable adjustment in the -- (1) Estimated cost, delivery or completion schedule, or both; (2) Amount of any fixed fee; and (3) Other affected terms and shall modify the contract accordingly." Note that fee adjustment would be part of the equitable adjustment for a decrease in the cost of services. It might not necessarily be the full 2/12 of the reduction in services though.

I didnt understand what your actual problem is. However, your method seems to add an appreciable amount of time to the project duration, especially for design-build projects, which are very time sensitive. Our organization typically issues the NTP after the awardee obtains and forwards acceptable bonds and the required proof of insurance for work on a government installation. The clock then starts ticking and the contract period includes all required submittals. The RFP should include a preliminary submittal register with ALL government idenified submitals and deliverables from the solicitation requirements. This will include identifying other pre-construction submittals, such as design and construction quality control plans, safety plan, stormwater runoff, erosion control and pollution prevention plans and other like requirements. Also includes any construction or design submittals already identified in the solicitation. The DB updates the Quality control plan and schedule to identify all tests and inspections required by Codes and/or the statement of work. The design-builder's designer of record is supposed to extend the submittal register with each design package. We dont "approve" desuigns. That is a "design-bid-build" concept stemming from the fact, that in design-bid-build, the owner (government) is responsible for the design and integrity thereof through completion and acceptance. In DB, the design-builder has that responsibility. Once we review the final design submission for a design package, and resolve all comments, if they are minor or easily correctable, the ACO or KO will send a letter releasing the design for construction.The DB must incorporate the corrections into the "released for construction" set of drawings and specs and we perform a backcheck for QA. There is no payment for construction or design completion until that is done. If your personnel arent doing their jobs, seems ike you should pull any ACO or COR authority they have until they get their act together. That includes authorization to proceed and any other "approval" authority.

Thanks, anoncon. 'M' - there are valid functional and operational justifications for escalators. I can't vouch for the current situation, but not everyone is as mobile as you probably are, plus escalators have a higher pedestrian capacity than elevators or stairs for heavy, between-floor traffic areas. And there are "green" elevator installations.

In addition to FAR 36.101 ( c ), do you plan on funding these contract line items separately, with appropiate funding? Will they be options, subject to funding? (By the way, the disabling of emoticons in the full editor doesnt' seem to always work)