joel hoffman

I do find it interesting that the WIFCON analysis pages for Protests do not list "experience" or "corporate experience" as issues, key words, etc. I had to look under "past performance" to find the discussion of "experience". I wonder why the Webmaster doesn't seem to distinguish between experience and past performance (I may have missed it) because a lot of people don't understand that the two may be separate factors or aspects and they may be evaluated using separate criteria. Yes, the GAO has distinguished the "extent and relevancy aspects" of a firm's experience from the "qualitative aspects" of a firm's experience in numerous decisions - but generally when the Solicitation distinguishes between them. Many Solicitations (incorrectly, in my opinion) mix them under a "Past Performace" factor. You can read excerpts from some of these decisions and references to other decisions at this link in WIFCON: http://www.wifcon.com/pd15305a2iii.htm The DoD Guide to Evaluation of Past Performance and the Army Source Selection Manual distinguish between experience and past performance. I also looked in the second edition of The Government Contracts Reference Book. I couldn't find a definition for "experience". Interestingly, I found a definition for "past performance", which started with "(a)n EVALUATION FACTOR used to assess an offeror's capability, comprising three elements: "(1) observations of the historical facts of a company's work experience - what work it did, when and where it did it, whom it did it for, and what methods it used; (2) qualitative judgements about the breadth, depth, and relevance of that experience based on those observations; and (3) qualitative judgements about how well the company performed, also based upon those observations." Edwards, How to Evaluate Past Performance: A Best Value Approach (The Geo. Wash. Univ. Law School, Government Contracts Program 1996)..." However FAR 42.1501 defines "past performance information" as "relevant information, for future source selection purposes, regarding a contractor's actions under previously awarded contracts. It includes, for example, the contractor's record of conforming to contract requirements and to standards of good workmanship; the contractor's record of forescasting and controlling costs; the contractor's adherence to contract schedules, including the administrative aspects of performance; the contractor's history of reasonable and cooperative behavior and commitment to customer satisfaction; and generally, the contractor's business-like concern for the interest of the customer." There is no direct mention in FAR 42.15 of anything resembling " observations of the historical facts of a company's work experience - what work it did, when and where it did it, whom it did it for, and what methods it used" or "(2) qualitative judgements about the breadth, depth, and relevance of that experience based on those observations". The FAR at 15.305 discusses evaluation of past performance (see definition in 42.1501); FAR 15.305 (2) (iv) requires, "(i)n the case of an offeror without a record of relevant past performance or without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance." The FAR implemented this PP provision from either the Federal Acquisition Reform Act or Federal Acquisition Streamlining Act (I forget which one). Thus, if the government distinguishes between extent of experience and past performance, as defined in FAR 42.1501, it can legally evaluate them differently in the case of a firm with no experience vs. a firm with no history of or information on past performance. It really depends upon the language in the actual solicitation. If the government has mixed up extent and relevancy of corporate experience with the quality of experience under the same factor, without any differentiation between them for evaluation purposes, then I think that they have to treat lack of experience the same as lack of past performance history. But if they have (wisely, in my opinion) differentiated between them, the solicitation will probably allow the government to downgrade or even disqualify a firm for lack of any experience relevant to the instant contract work. And the government may refuse or elect to consider either the experience or the past performance of key personnel or key subcontractors in making the evaluation but should state such in the evaluation criteria. See the example decisions in WIFCON at the link above. I also think that, if you are a small business and the government disqualifies you for having no experience, they might have to go through the SBA's Certificate of Competency procedures, if challenged. I haven't recently looked at this. I don't remember the GAO addressing that aspect, because I don't think it is under their area of purview (I may be wrong). I know that I disqualified firms for lack of relevant experience on a few LPTA source selections 15 years ago. We didn't go to SBA and nobody challenged us. These were SDB set-asides for construction under an old DoD program, where we required some minimal experience by the prime or it's trade subcontractor (if any) on critical trade work. I agree with Vern that you need to get some professional advice, if you intend to protest the terms of the solicitation or an evaluation.

If this is a DOD customer, I assume you read the earlier discussions concerning construction asa commercial item, so you'd have read the DOD acquisition chief's position that construction should "rarely be" considered a commercial item for DoD contracts. But that doesn't definitively rule out construction as a commercial item . For small jobs, mobilization, demobilization and spoil sitework could comprise a large share of costs, in addition to actual dredging costs, if the dredge has to be shipped very far (unless we are talking about a little dredge, located in the local area. So I imagine there are many other costs than a cost per cubic yard. Unit prices usualy depend upon he specific dredging conditions. There are many variables involved. Small pile driving jobs can be very simple and easily estimated bycomparing with local costs per foot or per pile or can be complex, depending upon lengths and subsurface conditions.

Please ensure that you include the Differing Site Conditions Clause, too. DSC are commonly encountered in dredging operations and in pile driving operations. And, I hope you will have some cost type basis to support the adjustments. Another one to include is the standard Variations in Estimated Quantities Clause.

See: http://www.wipp.org/news/24579/President-O...t--Agencies.htm President Obama Released a Presidential Memorandum for the Heads of Executive Department & Agencies Thursday, April 02, 2009. This notice can be found in the Federal Register- Vol. 74, No. 43- in the "Presidential Documents" section published on Friday, March 6, 2009. Go to http://edocket.access.gpo.gov/2009/E9-4938.htm <http://edocket.access.gpo.gov/2009/E9-4938.htm> to view. See http://www.wipp.org/news/24579/President-O...t--Agencies.htm

I agree - provide the report; drain the tank and allow bidders to inspect for themselves.

See an example Decision at http://www.gao.gov/decisions/bidpro/402324.htm Matter of: Energy Systems Group File: B-402324 Date: February 26, 2010 W. Bruce Shirk, Esq., Jessica M. Madon, Esq., and Townsend L. Bourne, Esq., Sheppard Mullin Richter & Hampton LLP, for the protester. Kenneth G. Wilson, Esq., Department of the Navy, for the agency. Jonathan L. Kang, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging potential offeror's exclusion from competition on the basis of an organizational conflict of interest (OCI) is denied where the agency reasonably concluded that the protester's preparation of a report that was used to prepare a statement of work for a competitive solicitation created a biased ground rules OCI. DECISION Energy Systems Group (ESG), of Hampton Roads, Virginia, protests its exclusion from the competition under request for proposals (RFP) No. N40085-09--5083, issued by the Department of the Navy, Naval Facilities Engineering Command, for energy conservation and efficiency design-build services at Naval Station Norfolk, Virginia. ESG contends that the Navy unreasonably concluded that the protester's preparation of a study that was used by the agency to develop the statement of work (SOW) for the RFP created a biased ground rules organization conflict of interest (OCI) that required its exclusion from the competition. We deny the protest.

Have you studied FAR 9.5, including the basic principles, as well as the rest? Do you think that there might be a conflict of interest from a firm that determined what work to include in a repair contract? Are you asking whether it is "illegal" or if it would be an improper conflict of interest to allow the firm to compete for the repair contract if it inspected the tank and wrote a report describing the condition and identified items requiring repair? Do you think that there would be an unfair bidding advantage? Will the water tank be empty and accessible to all bidders to closely examine? Will they be able to see the same conditions as the original inspection firm? Any other considerations?

Thanks for finding and sharing the evaluation criteria, Vern.

Technically, both the "trade-off process" (FAR 15.101-1) and the "lowest price technically acceptable" process (15.101-2) are considered to be "Best Value" under the "Best Value Continuum" in FAR 15.101. They include both technical quality and price as selection criteria, as opposed to price only or to technical quality only. I remember that they were combined under "Best Value" processes in the "FAR 15 Rewrite" back in 1996. Prior to that, only the trade-off process was covered in the Part 15 "best value" paragraphs. LPTA was discussed separately. The design-build industry broadly defines acquisition processes (involving proposals vs. bids) that include both quality and price selection criteria as "best value" and processes that only consider qualifications as "Qualifications Based Selection".

I think he dropped his "hold" a couple of weeks ago.

No lie - when I lived in Huntsville, AL., I was able to walk-in a couple of times when someone didn't show up on the opening morning for class!

I hope so, too. To be quite frank, I believe that Boeing REALLY doesn't want EADS to get a foothold in the US. EADS had already announced that, if it gets the Tanker contract, the plant will also be used to assemble commercial A330 aircraft in Mobile, AL., with much associated supplier and fabrication in surrounding SE states. I think that has been more important to Boeing than the tanker contract, itself. Of course, I'm speculating but that is the Scuttlebutt around town. I suppose that EADS would like to at least partially amortize the cost of building the plant and assembly line through the Tanker contract. Boeing has heavily criticized how EADS would build its planes with much outsourcing. However, Boeing's skilled labor force went out on strike the year before last because Boeing planned to do the same (or similar) assembly process with its new Dreamliner. Hmmm... The 767 series is assembled using Legacy assembly construction processes that Boeing can't ditch due to labor agreements and the need to completely retool to change the way they build the 767's (tankers included).

Well, it didn't work the first time they negotiated sole source with Boeing for Tanker leases. Both parties have to agree to the prices. One party owns a whole lot of 50 year old tankers ... The law of supply and demand will be evident. I doubt if it will be be "simple".

I think that the Air Force's apparent decision to stress price and meeting the requirements will probably backfire if Boeing ends up being the only proposer. Boeing also had the benefit of knowing N-G/Eads' pricing during the previous Protest. N-G/E recently requested that the Air Force release Boeing's pricing from the last round, too to help even the playing field. But the AF declined.

Reading between the lines... Are you indicating that you have not exceeded the "ordering capacity" for the currently awarded option period, therefore you'd like to extend the period in order to award additional task or delivery orders and that you also want to award the next option year for ordering purposes? If so, do you want to award it "early"? As Vern said, please be clear about what you are asking...

Vern, I was responding to your statement "In sealed bidding you consider "only price and price-related factors." In LPTA you consider technical acceptability and 'evaluated price.' " It appeared that you were trying to make a distinction between "price and price-related factors" and "evaluated price". I wanted to mention that price and price-related factors in an IFB can be considered in the "evaluated price". I don't think that we necessarily disagree about LPTA. I used to use LPTA and liked it. In fact, our situation with the trade-off process on our projects for a favorite DoD Service back in the 1990's was very frustrating. At one point I convinced our KO to use LPTA until they would quit demanding a "Cadillac desire" on a "Yugo Budget" for every project. Turns out that the client installation would have our A/E or in-house designers stack the scope of work and include a bunch of options and/or betterment options. Then they insisted that we stress a desire to obtain the best contractor team on construction and design-build projects. We actually ran off some of the best national contractors for several years because we discovered that the budget was so slim that all we could afford were the lowest-priced, minimally acceptable contractor teams, construction products and/or design solutions. With LPTA, we often ended up with the best technical qualifications as well as the lowest price. And the typical dirt-bags didn't bother to propose! At least we were being honest with industry and they appreciated the candor. I am just trying to point out that LPTA doesn't necessarily guarantee a lower price than the trade-off process when it is clear that price is the most important factor. And it often isn't easy to perform life cycle cost analysis. I won't bother with the details that I wrote about but didn't post.

Vern, it is also possible in an IFB to manipulate various criteria as price related factors and use a "total evaluated cost method" to determine the lowest bidder.USACE did this about 16 years ago but it was controversial, unpopular with industry and a bit cumbersome. It survided the Protest process but went by the wayside. I recall that we used factors such as average time growth with a bid daily compensable time extension rate, average cost growth with a bid overhead and bond rates, etc., then added these factors to the construction bid price to determine the lowest "total evaluated cost" to determine the winner.

Vern, I prepared a response, but my personal laptop isn't recognizing the wirelss card, the desktop bit the dust this morning and I can't transfer the data to my government laptop due to Army security restrictions. And I'm not going to retype it all on this BB, which also has to be replaced, because it decides itself when to lock up in the middle of typing. I'll post it when I get things going here. Of course you are right that the government COULD include a life cycle analysis in the price evaluation. I actually knew that but it has been so long since I have personally worked with LPTA (Army hasn't wanted us to use it for many years and officially discouraged it in 2004) that I forgot it. I should have indicated that wekd have to incoporate some type of Life cycle cost analysis or other price or cost evaluation in order to be able to pay $1 more... My post will discuss some impracticalities of doing this in all situations where we'd want to be able to select better products or systems.

A big disadvantage of LPTA is that we normally can't pay $1 more for a better or more capable product or service, including those which offer a lower life cycle cost but cost more up front. The biggest advantage to me of LPTA is the relative ease of evaluation and selection. But the method doesn't necessarily guarantee or result in the lowest price that the buyer could otherwise get using trade-off process.

I think that there are many situations where the trade-off approach with price as most important factor would drive lower prices than LPTA. In situations where there are significant differences between products, a slightly cheaper but significantly less capable product wins in LPTA, whereas in the trade-off, the proposer of the less capable product, assuming that it knows the competition, may be motivated to reduce its price significantly to ensure that the buyer doesn't select the more capable product. Example might be the B 767 tanker, which (according to Nothrup-Gruman/Eads: NGE) doesn't really offer much more refueling capability than the present B707 era (1950's) tankers vs. the larger Airbus KC-45, based on the A-330, which I think was more expensive. Both firms know their competition's capability. Boeing knows Northrup-Grumman/EADs' prices from the earlier Protest but the Air Force refused to provide Boeing's prices to NGE. I haven't read the new criteria, but NGE says they are going to pull out because the criteria is stacked toward Boeing. So I suspect that the criteria is heavily weighted toward price with both planes meeting the minimum technical criteria. Also at present, the Army requres high level approval to use LPTA per the AFARs/Army Source Selection Manual.

To make that easier, I recommend getting a second monitor so you don't have to toggle; you can keep both windows open. Works great for many applications. Everyone should have 2 monitors if you ever have to review anything and comment at the same time. They only cost around $100 these days. The productivity gains make it pay for itself.

To fully explain the MILCON Transformation program to you would take hours and a major article length narrative. We have several courses to explain the MT program and the design-build process and a web-site that contains the outline, Army goals and objectives.guidance, sample tools, policies, etc. I've been part of the team that developed our Programatic procdures and processes Over the past 5 years to meet the Challenge. How do we know that it works. The GAO is reviewing the program and results now to see how well it works. The ARmy program last year was about $12 billion in comparison with traditional $2 billion with better results..Overall Corps programs were somewhere in the $22 billion range, not to quote - that is my recollection from the Chief's end of year report.

Vern, we could probably have saved money using LPTA. However, I think we would have accomplished it at the expense of the aforementioned higher than "minimum acceptable" material and systems quality, faster completion times and quality of contractors. We didn't have the resources that would have been necessary to develop the designs for each project to the extent necessary to fully prescribe high quality within the budget and we would not have been able to.have the benefit of industry being able to provide appropriate design solutions to fit local market conditions within the budget. Programmatically, we stressed performance specifications, time and quality and allowed the proposers as much flexibility as we felt we could to meet or exceed the requirements within the budget. We would give the budget with price as the least important factor- as long as prices were within budget and competition tended to reign in prices. Our legacy processes typically resulted in less than 100% scope at full budget. Programmatically, we were awarding somewhere around 85% on average of scope at 100% budget, which correspnds to exceedimg the budgeted cost per square foot by about 16% while obtaining less than full scope. By awarding most projects for full scope within the budget, we saved close to 16% on on average per project on a program that was somewhere around 5-6 times larger than it was prior to the initiative I can't prove that the state of the construction economy didn't also play a major role in meeting our goals (standardized design criteria and facility operational and functional requirements, 30% shorter acquisition cycle to turnover, 15% cost reduction, acheive full scope within budget, maintain or improve "quality", increase sustainability and environmental protection, use industry standards and performance requirements wherever possible instead of prescribing one design solution, etc.). I think that both the economy and the programmatic acquisition approach with a lot of dedication from hard-working project delivery teams accomplished essentially all those goals. Could we have done the same thing in this economy with prescribed solutions, LPTA and other legacy processes? We had not been able to do it as well for many years before on a program about one sixth this size so I don't know. I agree with your argument concerning the probable dubious value achieved using the tradeoff method for many typical service contracts. The pumped up proposals don't appear to be contractually binding anyway.

I don't necessarily agree that the trade-off process doesn't provide a real benefit to the government that would justify the additional expense, at least in construction and design-build construction when higher quality systems, materials and finishes can be shown to have a lower life cycle cost and better contractors often will complete the project faster and with lower incidences of requests for equitable adjustments and less claims than during the IFB years. Those are real savings in collateral costs to the taxpayers. Stressing best quality within the budget over stressing price on the Army MILCON program last year produced a significant overall increase in award of full scope within the budget compared with Legacy methods. We had the best record in years for scope and price, which effectively reduced costs by almost 16% overall. However, I fully agree that many Contracting, Program and Technical personnel have little understanding of the complexities of the trade-off process. Since the leadership doesn't know much if any more than newbies, it will continue to present a great challenge to effectively "train the next generation" in the nuances of the trade-off process. I also agree with Vern that the country is broke and we can't afford to purchase goods and services at Cadillac prices.

One would never know that "This was supposed to provide greater flexibility in meeting the widespread needs of DoD" by the present system. This is a perfect example of the "tail wagging the dog". The present system seems to be controlled by persons who appear to think that every peg will fit in a round hole and that all contract types are the same.