joel hoffman

You didn't provide enough information to understand the basis of the question. How is it "not legal under the FAR", according to the Prime? Please elaborate. I can't answer such a general statement, except with another one. Is she/he saying that construction work is outside the scope of the prime (service?) contract? It is legal to include construction work in a service contract as long as the contract scope includes the possibility of such work. Our organization has done so for years.

Hooter, the government could still extend services beyond 6 months, but not unilaterally. A further extension would be generally beyond the terms of the contract. So, an out-of-scope supplemental agreement between the parties would be necessary. This means that your firm would have to agree to the terms and conditions of any further extension. If a further extension is outside the scope of the current contract, the government would first have to justify using other than full and open competition to acquire the services pursuant to FAR Part 6 before it could implement the extension. It would also have to justify only acquiring the extended services from your firm. Since the new contract is apparently sole source, the government may not have much problem with the justification. But your firm would have to agree with the terms of the extension.

I will say that our Chief of Contracting (one of the KO's) was TOTALLY competent as a Contracting Officer and as SSA. I served with him in the first Gulf War and he was FANTASTIC! He had great trust in me and we worked together very well...

Yep, I said: "Considering the alleged shortfalls in the overall quality of today's source selection's, a little more KO/SSA involvement would seem reasonable to me." Notice that I didn't say: "Considering the alleged shortfalls in the overall quality of today's source selection's, a little more KO/SSA oversight would seem reasonable to me." I think they might learn more if they occasionally sat in on the process. Back in the mid 1990's, I ran or supervised my folks who "ran" of all of our construction, design-build and JOC source selections and those service contract source selections assigned to us. We also negotiated all sole source contracts. Neither the SSA (KO) nor any contract specialists set foot in the evaluation room or participate in negotiations. Nor did they prepare any of the source selection plans, documentation, discussions, write-ups, trade-off analyses, decision memo's, debriefings, etc. Now please realize that USACE Contracting civilians only took over the Contracting Officer role from the District Military leadership after passage of the Defense Acquisition Workforce Improvement Act in the late 1980's. They were trying to both run Contracting and learn contract Administration functions at that time. Nobody in Contracting wanted to run source selections or to negotiate new contracts, so my boss took it on. I took over when he left in the early 1990's. After I transferred to a Division level office in the late 1990's, Contracting had to take over the process. In circa 2004, Army policy came out which made the KO/SSA independently make all the decisions...

Considering the alleged shortfalls in the overall quality of today's source selection's, a little more KO/SSA involvement would seem reasonable to me. I would say that an oral discussion between the Chair and the KO (I'm assuming that you are also the SSA in this instance) after they finish the evaluation of a proposal wouldn't seem unreasonable. The team might only possess notes for the formal write-up at this point though. Writing up the evaluations does take time. However, I would definitely want to know that my board was evaluating proposals using an organized, acceptable approach. I know that a lot of Boards and Contracting officials alike concentrate on the factor or element "score" or rating then worry about how to support that rating, which is the opposite of how I evaluate proposals. The board should concentrate on determining and documenting the strengths, weaknesses, deficiencies and clarifications, then let the rating more or less fall out on its own, based upon the rating criteria. The Chair ought to be able to go through her notes at least, if the final write-up isn't done. And yes, certainly assure her that adjustments can be made throughout the process. She could update you on those type things during the oral brief. I think that would be reasonable, but a written daily or interim report is a resource time waster to me. Its time consuming enough to prepare the boards official documentation without adding more reports.

Source selection evaluation teams can take many forms, depending upon the complexity of the source selection and organizational rules. Generally all of them eventually report their results to someone or another team higher up the selection chain, ultimately to a a person responsible for the selection decision. I can see one reason why an evaluation team might hesitate to make interim reports to a KO. However, it shouldn't be a problem if the KO is smart: It isn't uncommon to complete the rating of a proposal against the evaluation criteria, then discover we either missed something, misunderstood something or just plain gained a different perspective while evaluating another or other proposals. We would then go back and adjust the previous rating of a factor or two for the sake of consistency or to correct a mistake in the evaluation. But we had to be extremely careful to adjust it against the evaluation criteria and rating scheme, not against the other proposal(s). Sometimes, it was a matter of gaining better understanding of the actual eval criteria or the rating schema. Sometimes it was realizing that we were rating the same thing in 2 proposals differently. It wasn't a big deal and my role was often as the neutral referee to keep the process fair and consistent. The chairperson or the team might have reservations about briefing the KO before the overall evaluation is complete because of what I said above. However, if the KO is "smart", she or he should understand that this will sometimes happen and work with the team to allow them to make the adjustment. The KO might even be the one to point out such inconsistencies as an observer of the actual evaluation or during a summation briefing. If that is the chairperson's hang-up, then she or he ought to bring it up to the KO and come to an understanding of how such situations must be handled, because they do occur. I actually enjoyed having the KO sit in and observe the evaluation process in those few instances where it happened. I thought that it made her more aware of the details and allowed her to better understand the criteria and proposals. In order for her to maintain her independent judgement (required by Army source selection rules), she reserved the right to disagree with us in the final selection analysis. There are many ways to skin a cat, as long as you follow the basic rules applicable to all source selections and the ones established for your particular acquisition.

Yes the request was reasonable (unless there is an agency rule against this practice). The KO is responsible for the source selection and should be setting the rules. In the last office I was in, it was was not uncommon for the KO to sit in on the technical evaluation.. The TEB works for the KO at the pleasure of the KO. The KO can be as proactive as she/he wants to be. The TEB chairperson had better cooperate or the KO can and should replace her/him. What basis did the TEB chair have for refusing the KO's request? I'm assuming here that the KO is the source selection authority, ultimately responsible for the selection decision.

I agree with Vern. You said "I am hoping there is some regulation that can guide me, but I am at a loss." I probably should have expanded my answer to say that the FAR doesnt provide a nice, neat answer to your question. You don't owe firms who haven't shown themselves to be competitive or good performers an optional contract extension. I recommend that you not put the government (taxpayers and customers) at risk to pay guaranteed minimums or to have to award delivery orders to firms that otherwise wouldnt win any delivery order competitions. Even if you don't owe any minimum guarantees during an extension, you need to decide whether or not you think that a firm would be competitive or be a good performer during the extended period if you have a reasonable basis to make such a conclusion. But you aren't bound to extend them simply because the firm rated well in the initial source selection competition. In reality it does cost the government money in the amount of resources and time necessary to continue dealing with non-performers and non-competitive firms (contract administration efforts and time to review, document the reviews, etc.every time they submit a proposal). In our organization, the acquisition personnel cost our clients money because we are generally reimbursible to the program being served. And clients don't like to pay for guaranteed minimums. There might be other considerations that you didn't bring up here. I hope you see though that there might be valid business reasons involved in the decision to extend or not extend firms, beyond simply whether or not they are "good" or "bad" firms. But don't be arbitrary in your decision. Yes, after considering the facts and using your business judgement, document the basis of your decision to exercise or not to exercise an option to extend a firm. Ater all, it is called an "option".

You hinted but didn't directly say that "some" suppliers weren't competitive, due either to pricing or "other factors". Do you have guaranteed minimums for the option period? If they aren't competitive, would you want to extend their contracts, especially if there is a risk of having to either set-aside delivery orders for them or pay a guaranteed minimum stipend? If you had to set aside orders for firms during the initial period because they weren't competitive, that would seem to be a legitimate reason not to renew them. If you had to pay the guaranteed minimum, that would be a strong reason not to renew them. How much competition would remain if you eliminated the mundane firms? Those are all legitimate considerations. You didn't provide a lot of detail as to why or how the "some" firms only received their guaranteed minimums. But it looked like they weren't competitive. You sure don't want to have to set aside delivery orders for non-competitive firms. You don't get the best deal and deny the top performers opportunities to continue to excel. And you certainly don't want to have to pay a guaranteed minimum for no return. If a firm isnt competitive,that seems to me to be a reasonable excuse not to extend them.

Scott2, you are welcome. Vern, Means is a starting point for estimating if you don't have any better information on how the work would actually be done for new work or actually was done when pricing an after-the-fact mod on the job. However, I don't generally just use the numbers in the tables without adjusting for expected or actual conditions, labor rates, equipment makeup and rates, material prices, , overheads, self-performed or subbed work, etc. The Means guide usually has detailed information about the crew makeup, type of equipment being used, material prices and provides average productivity rates, as reported to Means. It might or might not represent the actual conditions and technical approach employed or to be employed. For small mods for new work, it probably wouldn't matter a whole lot whether or not you go into detail to substitute actual wage rates, actual material costs and actual equipment rental/ownership costs into the equations used in the Guide. However, you'd want to, at the least, use some more representative rates for markups. For work on an existing job, the adjustment is supposed to be based upon the estimated (future) or actual cost to the contractor versus unchanged work. So, we might theoretically know much of the actual equipment being used, the actual crew makeup, material costs, overhead rates, bond rates, etc. Means actually developed the USACE's Estimating programs many years ago. "MCACES Gold" alllowed the estimator to customize the labor, equipment, material, OH, bonds, etc. For anything other than a minor amount of work, using Means without adjusting for realistic expected or actual labor and equipment rates and often for equipment or material rates is only reasonably accurate for Rough Order of Magnitude estimating purposes to make go/no go decisions to proceed with a proposed change, obtaining funding, etc. Then, I'd probably want a more accurately developed estimate to help prepare for negotiations.

Yes, you are right, Vern. However, the actual effort to negotiate and write up the Mod and supporting paperwork shouldn't take more than a couple of hours, based upon personal experience. I should have been more specific. The whole thing, including processing the various reviews, etc. certainly shouldn't take longer than rochellekings' proposal to change the contract from a requirements contract to an IDIQ. In addition, they would still have to closeout the IDIQ contract at some point.

A no cost TFC takes a couple of hours to process, assuming both parties agree. It certainly is easier or no more work than changing the contract type. It appears that you have the negotiating position to make it happen. Call the guy up, offer the solution and then do it.

The VEQ clause is not applicable to changes in the work specified in the statement of work. The VEQ clause is intended for use when the nature of the specified scope of work doesn't change but the estimated quantities are inaccurate. If the unit priced line item is described for "spot repair work" and you are changing the nature of the specific work to wide area application (i.e., the method of installation is essentially different), then it would seem to me that you need to negotiate a unit price for a new CLIN for the actual work to be done, pursuant to the Changes clause - assuming that the work is within the original scope of the contract (road repairs).

But Vern - the Russians were our Ally in helping defeat our (now an Ally) Germany! We supplied them planes, tanks, ships... Well, I guess if we can rig the criteria so that planes partially built by our Allies can't win, we can find a way to non-qualify the source of much of the reason we've had to have a Strategic Air Force the past 70 years. LOL

Obviously, something FUNNY (comical) is going on here. According to today's Mobile (AL) Press Register, the Los Angeles based US attorney for the Russian State owned - yep you read that right - United Aircraft Corp, Jon Kirkland, indicated that UAC had planned to bid on the Tanker contract. But, coincidentally a week after our Secretay of State visited Moscow, Vladimir Putin and the Company now deny any knowledge of the project, which had allegedly been in the works for at least 6 months. Having the Russian Government build and PROVIDE PARTS for a USAF Tanker is an even scarier thought than the US providing F-14's to Iran then cutting off all spare parts supply since 1979!!!!! But it is also funny that a certain firm with tremendous insider support in the US government managed to influence (manipulate?) the selection criteria to LPTA. Then appears a plane that might meet the "published" technical criteria at about 1/2 the price of "America's Team" LOL LOL LOL.

Bottom line in the decisions to... 1) Use the LPTA method and 2) To allow the opportunity to conduct discussions ...depend upon your ultimate goal as a KO or project delivery team. Is it... 1) To get the "best" deal, employing a reasonable amount of effort? Or is it 2) Just to make an award using the least amount of effort possible? For me as a professional and as a fellow taxpayer, I certainly would hope that the acquisition professionals out there, especially contracting officers leading the process, would choose to get the best deal for the taxpayer as well as the customer. So, find a way to streamline the process for everyone's benefit, the PDT, the industry and the taxpayer. If you allow yourself some flexibility, you don't have to conduct discussions if it will cost more to do so than the expected benefit or take an unacceptable amount of time to do it. But at least don't box yourself into a corner by not allowing yourself the opportunity to get a better deal, if it is worth the effort and if there is a possibility that the lowest-priced technically acceptable offer is substantially higher than ?ou could have achieved with a little more effort. I think that is one reason that the FAR rewrite team brought the LPTA method under the "best value spectrum" in the 1996 FAR 15 rewrite. In our organization, the source selection process is reimbursable to the particular acquisition program being served. So, we'd want to weigh the cost of the source selection, task order selection, etc. against the benefit to be gained. But I always try to keep the taxpayer, the customer and industry in mind. After all, what does "the best interest of the government" really mean? Not just the amount of work involved or the instant program but in the best overall interest to all concerned including the taxpayer. Especially in this day and age where deficits are running into the TRILLIONS of dollars!!

Vern, do you think that we may have to also include other proposals in the competitive range which had some potentially fixable deficiencies but were within a competitive price range of the lowest priced (but also deficient) proposal? I would think that if you include 1) the lowest priced but deficient proposal and 2) Technically acceptable proposals that are higher priced than a proposal that also has minor deficiencies, ...it would also be prudent to include such proposal(s). I suppose that we could cut off the competitive range at a proposal that is technically acceptable, depending upon the circumstances. As for extra effort, the government would have already evaluated those proposals during the process of determining a competitive price range, as you described above. So, in effect, the competitive range would include all proposals within a theoretically competitive price range that were either technically acceptable or deemed capable of becoming technically acceptable. I'm saying this from the theoretical perspective of a firm that might protest if we include conforming proposals that are higher priced than "mine" as well as lower cost proposals with similar deficiencies as "mine". What do you think?

I'm presuming that price is the most important factor in your acquisition strategy. What if the lowest priced offer(s) don't meet all the technical requirements but have the potential to be correctable. I'd want the ability to be able to conduct discussions and to include them, wouldn't you? I suppose that it depends upon what you are buying.

I agree with Vern.

"Mr. Hoffman, Is the gist of your long comment that experience and past performance are different things, as Mr. Edwards already said?" Yes. Sorry that I took up your time. I read the original post in a thread mistakenly posted to the"Contracting Workforce" area. After posting there, I discovered Vern's well written response. "You seem to be saying the same things he said only without references." Sorry that you couldn't read anything at the decisions and references to other decisions that I provided at this link in WIFCON: http://www.wifcon.com/pd15305a2iii.htm. Guess you want a free lawyer. "Why didn't you mention Mr. Edwards' blog entry of 23 Feb 09, "The "'Neutral' Rule and the Evaluation of Experience"? It explains everything more clearly than you did and with extensive references." Super. He is a great scholar and excellent author. Sorry to waste your time and mine.

I am assuming that the contract either doesn't contain a maximum estimated ordering quantity or you haven't reach any such max order limit beyond which neither party is obligated to continue to provide or order. Since you don't "want any more of these items", someone appears to want to change the contract type to an Indefinite quantity type. In reality do you just want to be free from the obligation to purchase any more of these (dud?) items from the (dud?) manufacturer? If you really don't intend to purchase any more of this type or similar item, you don't have to do anything, since you met the minimum order quantity, right? If you really intend to purchase more items or want to have the right to purchase more from someone else, it appears to me that you probably would be better to terminate the contract than change to a sham arrangement, wouldn't it? To terminate for default (no further government obligation ito purchase similar items from this firm), you'd have to show that the Contractor is in default of its obligations. If you can establish default conditions (contractor breach), the government would be in a position to offer to revise the contract type in lieu of TFD, or offer a no cost TFC agreement to the contractor as an alternative to TFD. From reviewing the discussion of requirements contracts in Nash and Cibinic's 3rd Edition of Formation of Government Contracts, absent a contractor breach for non-performance of valid technical requirements, I'd say that the government probably can't unilaterally revise the contract type and can't breach its obligation to the contractor without being liable for the breach. It also appears that the government can't just issue a TFC, then order essentially the same product from other sources, without relief to the current requirements contractor, based upon the refereced decisions in N&C. Questions: 1) Did the Contractor comply with all material terms of the orders? 2) Do the items meet the contract requirements? 3) Is this a problem with the government's specifications or requirements rather than the contractor's performance? 4) If the Contractor isn't performing in accordance with the contract, can you terminate for default or offer the above deals in lieu of default? 5) Does the government really intend to purchase more of the same or similar type item during the effective ordering period of the requirements contract? 6) Do you have legal counsel that you can discuss this with?

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