joel hoffman

Don't get too deep in trying to figure this out. Last night, I spoke with a senior KO in the office that conducted the Source selection, who indicated that the criteria are probably a mistake and who seemed to agree with me that you can't make price both the least important factor and the most important factor at the same time. This wasn't the responsible KO. I still don't quite understand why GAO didn't question the contradiction. I suppose it is because this wasn't a relative issue in the Protest. I know some of the folks in one of the protesting firms. I suspect they don't have a clue either.

Parkerr, I do not have access to the FAR or the Federal statutory Code tonite - sorry, Vern. However, the answer to your question might be a lack of coordination back in the rewrite of FAR Part 15 in the Fall of 2006. Prior to the rewrite, the LPTA method was discussed under a separate subparagraph from the "Best Value" FAR coverage. As part of the acquisition reform rewrite process, the FAR Council pulled LPTA under the "Best Value Continuum" with the Tradeoff Process at one end of the "Continuum" and the LPTA process at the other. I may be wrong, but don't have the present FAR or 1996 version available (I am TDY) for comparison or to check the current paragraph organization or numbering. Going back to your original post in this thread, I do remember recently checking my FAR comparison book between the 1996 and 1997 language regarding having to separately identify the relative order of importance of each factor in addition to stating the overall importance of price and non-price. The 1996 version more clearly expressed this requirement. I don't know why they revised that specific language. as I compared the old and new language, I wondered at the time why they edited out the more clear wording. Maybe it was just part of "acquisition streamlining" to save print and what they thought were extra words.

Formerfed, I didn't provide the chronology, but the PEO responded to industry as I explained above. We made price significantly less important than the technical factors. The Army wanted to reduce building cost by 15% and to obtain full authorized scope within the programmed amount (PA). We had been averqaging about 85% of dcope within the PA. Achieving full scope in itself would effectively result in about 18% reduction. Obviously, when faced with cost cutting manadate, the Installations were concerned about maintaining quality of construction. I won't go into great detail on how we reduced costs. (Using performance based design-build, standardized source selection critria and methods, standardized design criteria, using Centers of Standardization for each major facility type, maximizing use of commercial design and construction standards, standardizing and streamlining design-build contract execution, etc.). We identified the contract cost limitation, included an aggressive upper limit on contract duration and made quality and further time reductions the most important factors. So, if we could get full scope within the PA with a much shorter schedule than pre-MT, we didn't need to emphasize further cost emphasis. Overall, the program is a success. Last year, our Army workload was about 6 times greater than normal program and we awarded over 99 percent of the program within the overall MCA and BRAC budget. The example I cited in the GA0 is a deviation from the published MILCON Transformation approach. In addition, it is seemingly in contradiction with itself.

I would like to add that it appeared to me from the scenario that this is a competitive acquisition. Far Fetched mentioned "bid". Thus, I presumed that a TINA exception would apply. But - I don't know for sure.

napolik, yes - of course, as the non-price factors move toward equality, then price will tend to become the discriminator in the trade-off decision. That's not what I'm referring to here. I agree with Vern's first post. Although Army can't use point scoring for technical or price, Vern's illustration makes the same "point" (no pun intended). I've seen this in 2 recent GAO Decisions and am amazed that GAO didn't notice the contradiction. If such as "august" group didn't pick up on this, I figured that I am somehow missing something. I'm beginning to think more and more that many people don't seem to have a clue how the trade-off process really should work. We as the Program Executive Ofiice for Army MILCON program execution, developed a mandatory source selection model for all Army design-build MILCON projects, in concert with a team of contracting officers and lawyers, a few years ago. We initially and purposely made price the fourth most important factor out of five factors in an attempt to make design quality, performance capability and contract duration the most important competitive factors within the budget. We also stated that price was significantly less important than the non-price factors when combined, but that price had to be both fair and reasonable and be within the contract cost limitation. We also said that additional quality would have to justify paying additional cost beyond a fully conforming proposal, etc. We said that price was more important than the fifth factor, the extent of SB/SDB subcontracting participation. This factor had mandatory requirements and annouced goals anyway. In essence we were saying that we didn't care about more extensive SB/SDB involvement than the goals if it would increase the cost beyond the budget. Thus, if all higher rated factors were essentially equal, the extent of SB/SDB participtation would become the discriminating factor. The contracting community complained because they said they didn't know how to apply this in a trade-off comparison between proposals. Furthermore, the feedback was that they didn't know how to do a trade-off and selection where price wasn't either the most important factor or "equal to the non-price factors". Note that being the most important factor or being equal to all the other factors seems to be saying the same thing. So, to mollify the community, our headquarters said to make price the least important factor, but still within the budget, price significantly less than non-price, etc. The reasoning was th it "would be easier to evaluate", so to speak. I've been recently told that some of our regions have started using language like that described in the GAO protest. I wonder, what do they mean? Do they even know what they are saying? I don't.

Can someone please explain how price can be the third most important factor in descending order of importance but price is equal to all non-price factors in overall importance? I can't seem to envision where, if design and performance capability are both more important than price, then price = both of the more important factors... Industry has repeatedly told our agency that when we state that price = all the other factors combined, then price must be the most important individual factor. In a recent protest (Clark/Caddell Joint Venture, B-402055, January 7, 2010), the protest decision stated the following: "Under the RFP, proposals were to be evaluated for ?best value? on the basis of the following evaluation factors listed in descending order of importance: ?design technical,? performance capability, and price. RFP at 4 and 5. The two non-price evaluation factors when combined, were equal to price. See FAR 15.304 -- "Evaluation Factors and Significant Subfactors" for the requirement to describe relative importance of each factor and ALSO state the relative importance of price with respect to all evaluation factors other than price, when combined. "...(d) All factors and significant subfactors that will affect contract award and their relative importance shall be stated clearly in the solicitation (10 U.S.C. 2305(a)(2)(A)(i) and 41 U.S.C. 253a((1)(A)) (see 15.204-5( c)). The rating method need not be disclosed in the solicitation. The general approach for evaluating past performance information shall be described. (e) The solicitation shall also state, at a minimum, whether all evaluation factors other than cost or price, when combined, are -- (1) Significantly more important than cost or price; (2) Approximately equal to cost or price; or (3) Significantly less important than cost or price (10 U.S.C. 2305(a)(3)(A)(iii) and 41 U.S.C. 253a?(1)( C))." Some people erroneously argue that "price or cost" is not a "factor". However, "price or cost" is discussed as a factor under 15.304 ( c). The folks who argue this with me are confused because they only evaluate technical factors, not price. They assume that since price is evaluated differently than the technical factors and by different people that it isn't a "factor". 15.304 ( 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) Price or cost to the Government shall be evaluated in every source selection (10 U.S.C. 2305(a)(3)(A) (ii) and 41 U.S.C. 253a( c)(1)() (also see Part 36 for architect-engineer contracts); (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 (10 U.S.C. 2305(a)(3)(A)(i) and 41 U.S.C. 253a( c)(1)(A)); and (3) (i) Except as set forth in paragraph ( c)(3)(iii) of this section, past performance shall be evaluated in all source selections for negotiated competitive acquisitions expected to exceed the simplified acquisition threshold. (ii) For solicitations involving bundling that offer a significant opportunity for subcontracting, the contracting officer must include a factor to evaluate past performance indicating the extent to which the offeror attained applicable goals for small business participation under contracts that required subcontracting plans (15 U.S.C. 637(d)(4)(G)(ii)). (iii) Past performance need not be evaluated if the contracting officer documents the reason past performance is not an appropriate evaluation factor for the acquisition. (4) The extent of participation of small disadvantaged business concerns in performance of the contract shall be evaluated in unrestricted acquisitions expected to exceed $550,000 ($1,000,000 for construction) subject to certain limitations (see 19.201 and 19.1202). (5) For solicitations involving bundling that offer a significant opportunity for subcontracting, the contracting officer must include proposed small business subcontracting participation in the subcontracting plan as an evaluation factor (15 U.S.C. 637(d)(4)(G)(i))..." (P.S., I disabled moticons but they still appeared in my preview post. I had to add a space...)

Several large and/or complex service, R&D and construction projects with Bechtel, Parsons, Fluor, Washington Group (URS), etc. These firms live with DCAA auditors, CAS coverage, etc. Some were ID/IQ contracts with all three types of work. EDITED April 2015: We used the Army's "Alpha Contracting" method in the development and negotiation of some of the SATOC task order proposals for the Chemical Demilitarization Projects at Bluegrass Kentucky and Pueblo, CO. Thus, there was wide disclosure of the pricing methodology.used to develop the proposals, including the risk factors and their reasonableness.

duplicate post.

Formerfed, if your pricing reflects greater risk, then I suggest identifying how those risks are considered in the proposal breakdown. My savvy contractors don't call it "contingency" or simply jack up the profit percentage. They include risk factors and often do Monte Carlo analyses which consider probabilities of single or mutiple problems or events occurring. To me there is a difference between simply adding a contingency factor and considering risk probabilities and taking them into account. This might be more difficult for some service type contracts. Depends upon the specific project and location.

Delivery orders are associated with supply contracts. Is this a supply, service , construction or other type contract?

Can you include the requirement to update the government's software systems, if necessary to be compatible with the contractor's systems in the contract? Sorry, I didn't see a response to my earlier question.

Is this a service contract?

You might be right. But I look at it as sort of an "advanced agreement". Signatures signify that each party understands and "agrees" in advance to the terms and conditions, so they don't have to be reissued with each order, unless they are modified. Its also a good way to keep up with the documentation and with mods to the agreement ("configuration management"). Plus, I agree with Navy_Contracting that a document with the word "Agreement" in it signifies an agreement. BPA's have time limitations, too, right?

See FAR 13.303-1(a) , 16.702 (a). These are negotiated agreements containing certain terms and conditions that will apply to future orders/purchases under the agreement. Do you think that the agreement shouldn't be bilateral?

I don't know positively for sure, but I think that the reason materials aren't counted in either the numerator or denominator under the "Limitation of Subcontracting" (LOS) Clause (52.219-14) is because primes will often try to claim self performance where they simply purchase materials for their subs to install. I used to see it often on non-small business set-aside construction contracts, where the prime has to self-perform a specified amount of the work with its own forces under the Performance of Work by the Contractor Clause (52.236-1) . I would reject that because it isn't self performance with ones "own forces". Congress or SBA got it right (or at least better) when they developed the LOS clause for small business set-asides. Note that, even though the same clause is used, there are slight variations in the SBA rules for interpretation of the LOS clause for 8(a) and for HubZone contracting.

Vern, I agree with you that there may be times when a COR would first advise a subcontractor then inform the prime. And, I guess I made a pre-emptive strike about the PO not keeping the prime informed. I was trying to figure out what the real problem is as Sjanke dribbled in information. The "end around" situation is often the problem when our folks talk to subs without the prime being there. He did indicate that the contract language discussed the PO providing technical direction or details. As of today, Sjanke is still looking for a legalistic solution. There appears to be a real problem with what is going on between the PO and either the prime or the sub. If the sub and the prime don't like the unannounced visits, all I know that they can do, from the information provided, is unite, bow-up and say that they are required to provide reasonable access to the PO. They can assert that their standard of reasonableness includes courtesy notice to the prime before going to the sub's business. Sjanke apparently wants to be there for some reason, as he indicated that the sub is allegedly being treated differently than his other sub. I'd suggest continuing to try discuss their concerns with the KO before letter writing, but sjanke has that right, too. I don't know who the PO is but our KO's are usually effective at instituting some corrective action if our QA folks or our customer personnel are being unreasonable. When I was the District Chief of Contract Admin, we'd often get the call before the contractor went either to the KO or to the District Commander. The ACO's worked for our boss as well as contractually under the KO. Between us, the KO and/or the Colonel, many of the personality issues got resolved.

Vern, I accept your apology, thanks. Factually, I indicated in a post on the afternoon of the 12th of January that if the PO appears to be leaving the prime out of the information loop that is "unprofessional". I stand by my statement. A government representative should - no must, as a matter of professional contract administration - keep the prime, who is responsible for the performance of its subs and for meeting the contract requirements, informed about technical directions he provides to the sub. That is not only common sense, it is a requirement in our agency QA and contract administration procedures and training curricula. I would hope that is a requirement in any agency's procedures. If that isn't happening in this situation, then my statement isn't relevant to the instant problem.

The contract and regulations don't always cover every situation. There isn't always a black and white solution and there isn't always only one reasonable answer.

Sjanke, I sense that you are looking for a smoking gun in the form of a regulation or contract language that will require the government to coordinate with you. From your earlier post, you seem to indicate that there is a real problem between the PO and one of your subs, whom I assume isn't towhether the sub has or doesn't have an open door policy, anyway. Most contracts don't prescribe a solution to every behavioral problem by people. There needs to be a way to informally deal with such situations. My advice is to continue to discuss the specific problems that the PO is causing between the sub and your firm with the KO before taking up letter writing, citing contract terms and regulations. If you and the sub are on the same page, I suggest explaining that you are obligated to provide "reasonable access" to the subs plant and that you feel that reasonable includes advance notice to the prime and to the sub as a courtesy, unless there is a good reason that this cant be accommodated. In my organization - yes, I feel that my organization is a pretty good one, overall - the Corporate policy is that we are to offer a formal "Partnering" process with each of our contractors, in order to open up communication channels, in order to help each party understand the others' goals, needs and concerns in order to succeed in contract execution. We've found a lot of success in resolving small problems before they get out of hand - as well as some failures - through the Partnering process. Partnering isn't intended to ignore, change or otherwise avoid contract requirements, but to find ways within the contract and the rules to resolve problems or to find mutually satisfactory solutions, procedures, etc., where the contract doesn't provide the black and white answer. I'm sorry if you have tried this and the KO doesn't have the personal or organizational ability to help you. I don't know that from the little info you provided. In the event that all else fails, I suppose you could write the formal letter expressing your concens about whatever problems the current relationship and procedures are causing and that you feel that reasonable access to the subcontractor's facility includes coordination through the prime, unless there is a valid reason where that cant' be accommodated. Perhaps one more try might work... Vern, please refrain from continuing your personal, condescending attacks on me because my background isn't the same as yours. The last time I checked the Forum rules, they don't restrict discussion to anyone in particular. And I thought that personal attacks were in violation of the spirit, if not rule number one, of the Forum. My advice here is to Sjanke, not to you. You don't have any idea of what my overall background, inside and outside of the Federal government, is with other organizations, other governments, contracts, the public or contractors that I've dealt with over my career as a contract administrator, engineer, ACO, source selection leader, claims advisor/negotiator, designer, planner or consultant to government, private clients and contractors.

At the risk of being admonished again, please read these two paragraphs carefully: 45.502 Subcontractor locations. (a) For property located at a subcontractor, FAR 52.245-1(g) requires that the prime contractor allow support property administration. Should the prime contractor fail to comply with FAR 52.245-1(g), the property administrator assigned to the prime contractor shall immediately refer the matter to the contracting officer. FAR 53.245-1 (g)(4): 4) The Contractor shall ensure Government access to subcontractor premises, and all Government property located at subcontractor premises, for the purposes of reviewing, inspecting and evaluating the subcontractor?s property management plan, systems, procedures, records, and supporting documentation that pertains to Government property. Can this be read that the prime must take necessary action to allow government access to the subcontractors' locations? It doesn't say "allow unrestricted access" anywhere. I would think that, as part of the access arrangement, the prime could stipulate that, as a matter of courtesy, the government representative must (should? shall?, has to?) coordinate with the prime contractor. There isn't anything secret about what the guy is going to go look at - its property administration, after all. I doubt that the PO going to make a visit for property administration purposes is a Colonel or an SES. If so, I want that job! And - I would certainly hope that the KO is more than a procurement clerk. The KO's in our organization set down the rules for the COR's and the ACO is subject to their authority. The authorities for all ACO's and COR's on specific contracts flow from the KO. If the KO feels that the COR is exceeding their authority, the KO is empowered to take necessary corrective active. That is where my perspective comes from. And the PCO's from AMC that were assigned to our Chem-Demil Contracts (USACE was the ACO) were just as authoritative as our PCO's. Apparently, the KO in this case is different , either by organizational authority or by personality, than the ones we have and those I've dealt with in our work with other organizations. If nothing else, can't you discuss this with the KO and see what she/he can do about it more than merely a suggestion to the PO to coordinate and cooperate? If you are trying to establish your position via letter writing, citing FAR, etc., it won't get you very far. In your discussions, I suggest reiterating the trouble or potential problems that it is causing. Then, if that doesn't get you anywhere, you might try suggesting that the two clauses above don't give the PO unconditional access to the subcontractor's premises. Keep trying the personal communications route, then drop the (tack) hammer after all else fails...

If this is an in-scope change, then wasn't it executed pursuant to the "Changes" clause? I assume that you are referring to Block 13 c of the SF 30. If you are required to provide documentation for the change in the Mod file, I'd think that the "Reason for the Change" or similar term and the source of funding is the ARRA. The ARRA doesn't provide authority to modify an existing contract to add in-scope work or services, etc.

Sorry, duplicate post. My home computer is experiencing technical problems in viewing the Forum. I was unable to view my last post.

No problem, Vern. I said that you responded to the unfair advantage aspect of OCI, while I concentrated on the aspect of preventing the existence of conflicting roles that might bias a contractor's judgement. You don't agree with my opinion and I don't agree with yours.

We're friends, Joel, but you tend to give hasty answers, sometimes dashing something off from your Blackberry while waiting in an airport. September asked a straightforward question that was not hard to answer. You went off like a rocket with a lot of blather. Slow down and think about what you say and why you say it. We want to give good answers, helpful answers, don't we? Vern, the reason you finally provided in your post yesterday (several days after the original question was asked), referred to FAR 9.505-2((1). It might appear that application of such reasoning could prohibit an A/E firm from performing A/E services for the owner after award of the resulting construction contract, if those services were described in the contract documents that the A/E prepared. That doesn't make any sense at all in the real world of government A/E contracting. The A/E firm is the designer of record for the government and must often perform various technical reviews, inspections, etc. The Commissioning Agent is to act as the owner's representative during the commissioning of the building by the contractor. As for me providing "hasty answers", I disagree. September specifically asked for feedback on the following points: "Does the writer of the Commissioning requirements in a Buildings Construction Specs have an organizational conflict of interest that would impair their ability to serve effectively as the Commissioning Agent?" "Others believe that the writer of the Commissioning specs will have a bias to believe the commissioning specs are perfect, and that will impact their ability of implement the most effective commissioning plan." September asked on January 11 for feedback about organizational conflict of interest with respect to the above described professional and ethical considerations. I responded that I assumed that September was talking about a firm that prepared the specs, then would be hired to work for the contractor after award. I said that there will be a conflict of interest. Later, I added: "Also, the commissioning agent could possibly become involved in conflicts of interest with the design itself, regardless of whom they are working for." As for being "not hard to answer", on the morning of Jan 12 you offered only your statement that "The organizational conflict of interest is rather obvious." What kind of "good, helpful answer" was that intended to be? Later that morning, September clarified that the firm prepared the specs for an organization, that her/his organization was going to issue the construction contract and was going to separately direct contract with a Commissioning Agent. She/he said that she/he didn't think that that would change the conflict of interest, but offered them up in case there were other comments "we" would want to provide. That afternoon I offered to check with my subject matter experts - those in the government who prepare designs, who execute contracts and commission buildings and work regularly with A/E firms. I didn't notice any professorial admonition from you between then and 23 1/2 hours later when I offered a basis to determine what an organization that we belong to and adopt their standards considers to be a reasonable basis for allowing the design firm to participate as the Commissioning Agent. The scope of those services is for whole building commissioning, which is even more complex and critical than simply commissioning an HVAC system. Because we regularly engage our A/E firms to provide some services after award of the construction contracts that they design and that they describe in the contract documents, that seemed to be a very professional and reasonable basis to respond to Septembers' concern. This concern was expressed as: Would being the writer of the commissioning spec..."impair their ability to serve effectively as the Commissioning Agent?" And: "Others believe that the writer of the Commissioning specs will have a bias to believe the commissioning specs are perfect, and that will impact their ability of implement the most effective commissioning plan." FAR 9.505 General Rules describes two underlying principles "( a) Preventing the existence of conflicting roles that might bias a contractor's judgement; and ( Preventing unfair competitive advantage. In addition to the other situations described in this subpart, an unfair competitive advantage exists where a contractor competing for award of any federal contract possesses- ( 1) proprietary information(that was obtained from a government official without proper authorization; or ( 2) source selection information (as described in (2.101) that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract. From my experience with specifications for commissioning of building systems - yes, these are "Buildings Construction Specs", Commissioning specs aren't custom written for construction projects. There are guide specs and there are standard industry guidelines for commissioning of HVAC systems or whole building commissioning. This isn't rocket science and it most likely isn't anything out of the ordinary. I later apologized for not addressing the issue of unfair advantage. Quite frankly I don't see any "unfair" or "competitive" advantage for an A/E firm who wrote the commissioning requirements in an A/E competition for Commissioning Agent services - unless the specs are custom written so that they would be in a position of unfair advantage. There wasn't any mention of this and I haven't seen custom commissioning specs on typical building projects. The fact that September used the term "Commissioning Agent" indicates to me that this is a standard procedure. I admitted that a service contract competition might be different, where price is a factor, due to some familiarity with the design. My concern was with the aspect of OCI that September specifically asked about: "Preventing the existence of conflicting roles that might bias a contractor's judgement." That is what I researched and answered. If you think that taking a day to request expert assistance, read that advice, check out the advice, then respond is "hasty", I suppose it is in comparison to the three days that you waited to provide your FAR reference. Your analysis appears to be based upon determining who or what the USGBC is, then seemingly dismissing any relevance to what is considered by many organizations to be one industry standard for determining what is considered to be a conflicting role that might bias a contractor's judgement. All Army building construction is required to be at least LEED certifiable these days and the Air Force and NAVFAC have also adopted LEED. Finally, you provided an answer on the basis of unfair advantage per FAR 9-505-2 ( . I don't know how you determined that the firm couldn't participate because it allegedly was in a position to favor its own capabilities. How is that so? How do you know that none of the exceptions in 9.505-2 ( (1) apply? As for the relevance of our respective answers, I concentrated on responding to specific OCI questions concerning professional judgement and bias. I believe that my response was reasonable and researched. I didn't pay much attention to the separate consideration of unfair advantage because 1) September didn't ask about that and 2) I don't think that a firm would have a competitive advantage in competing for an A/E contract to be the CA, assuming that the CA specs are not custom written to favor that firm's capabilities. There are many firms who provide CA services. You concentrated on concerns about unfair competitive advantage, basing your answer upon 9.505-2 (.