joel hoffman

Yes but it would seem that it is a good principle to apply any time you contract for services, free or not. But I guess it’s similar to Sola Scriptura. If it isn’t in a reg somewhere it doesn’t exist and you can’t do it.

Replacing a civilian employee on a Technical evaluation panel or even on a source selection evaluation board is not an adverse personnel action under this definition. It’s simply a temporary assignment not involved with their employment position or status. I do remember asking an SSEB member to recuse themself after discovering they had a conflict of interest upon advising the members of the identities of the proposers and asking them if they had a conflict of interest.

Understood. In my case, it was two senior Air Force Officers who weren’t listed in the Source Selection Plan. They attended the beginning of the Source Selection Evaluation Board meeting before we began with introductions, overview, and SSEB and Technical Evaluation Panel (TEP) training for the 3-5 day long evaluation and award recommendation process.

@Vern Edwards, it was about 30 years ago. Yes, it was the GSBCA. GSBCA 13003-P HSQ TECHNOLOGY Protestor and WILLIAMS ELECTRIC Intervenor, v. DEPARTMENT OF THE ARMY Respondent, and JOHNSON CONTROLS, INC Intervenor. Dismissed HSQ Technology submitted a canned protest to GSBCA within one hour of being notified of the contract award by the Mobile District , US Army Corps of Engineers, complete with alleged reasons, etc. They couldn’t have known because nothing about the evaluation had been disclosed and we didn’t have the opportunity to debrief anyone. There are two GSBCA Decisions. I have provided the links that I found below. The first decision doesn’t include any details. The protestor and intervenor agreed to withdraw the protest because the Army agreed to re-evaluate the proposals. I’m going from memory on details. But I have some vivid memories due to personal frustration with that decision and the whole protest process. Here is the Link to the First Protest: https://www.gsbca.gsa.gov/oldprotests/d130031.txt This was a late add project in the late Spring of 1984. Proposals were received in late August or early September. Award was made without discussions because of limited time remaining to award and the fact that the Corps didn’t feel that the lower priced proposal could be technically improved, the other unsuccessful proposal didn’t offer any advantages and (I think) was the highest priced offer. Initial award was made to the highest technically rated and either highest priced or second highest priced offer (I don’t remember and the details of the initial protest were unpublished). Without going into too much detail, the protestor’s proposal was marginally compliant and was the lowest priced proposal. The GSBCA, referenced an earlier 1994 GSBCA Decision “Widnal vs.B3H” (US Air Force), where that Board stated that every tangible and intangible advantage in a technical factor and performance capability factor over those aspects of a lower priced proposal had to be quantifiable in $$ to justify award to the higher priced proposer over the lower priced, technically acceptable proposer. Nobody, including our Office of Counsel or the HQ attorney assigned to the protest was aware of the B3H Decision at that time. Plus, our District weren’t even aware that the GSBCA had jurisdiction over protests for this type of acquisition. We asked our HDQTRS Office of Counsel to urge the Air Force to Appeal the B3H Decision. I can’t find a reference to a Court of Appeals case but the Air Force was successful some time later in getting that Decision overturned. The Protestor’s well practiced attorney deposed every member of the SSEB as well as the KO/SSA and me. I was the “professional advisor to the SSEB”, author of the Source selection portion of the solicitation, SSEB moderator and recorder, working directly for the KO and Chief of Contracting. The KO was primarily working service and supply contracts. This was the first Construction SS for that young KO. Unfortunately, the sister District that would be administering the contract at Ft Riley sent a non-engineer, construction rep to the SS as that District’s member of the SSEB. It turned out that that person was NOT technically qualified to be on the SSEB. He struggled to keep up throughout the Consensus evaluation and writeup. During his deposition, he became so “flustrated” that he couldn’t state his own name at the beginning of the interview because he was tongue-tied. And he couldn’t remember much about the consensus evaluation, ratings or conclusions. This was a case where we should have replaced him but didn’t have adequate time to delay the SS in order for someone else from that District to be appointed , familiarize themselves with the solicitation and the project and travel across country and start the evaluation over. We also didn’t suspect that there would be a protest. We hadn’t had any protests in my previous years handling Source Selections. The KO’s interview was as bad as the Board member - actually worse - [He or She] had zero technical knowledge or expertise in the complex area of operation of and controls for an electronic Utility (and every building system (e.g., electrical, HVAC, lighting, security, communications, fire suppression, plumbing, etc) Monitoring and Control System.He/She lost composure and overcome by emotions during the deposition. The KO was briefed by the project manager, the project engineer, who wrote the technical requirements, and me, before making the selection but relied on the SSEB reports and recommendation. The KO turned in [his][her] KO warrant after the protest. The Corps agreed to re-evaluate the original proposals and to replace the SSEB and KO. So the protestor and intervenor agreed to withdraw the protest. The 1995 second Protest after re-evaluation of the original proposals resulted in the same selection by an completely independent SSEB, technical evaluation team TEB and KO (our seasoned Chief of Contracting), resulted in the same award for similar reasons as the initial Award. This time, the USACE Headquarters Office of Counsel assigned a sharp Army Captain attorney to the Protest. In reading the linked protest, USACE convinced GSBCA that they had no jurisdiction over the acquisition because it wasn’t Federal Information Processors FIP, thus wasn’t subject to the Brooks Automatic Data Processing Act. I believe that HSQ appealed the Decision to an Appeals Court and the Appeals Court affirmed the Decision but it was well over one year of delays in awarding the Contract, which was transferred to Kansas City District for execution. The second Protest can be read here: https://www.gsbca.gsa.gov/oldprotests/d132800.txt Shortly thereafter, Congress Repealed the Brooks ADP Act and GSA lost its jurisdiction over DoD Federal Information Processing Equipment acquisitions. And the Corps of Engineers established Multiple Award ID/IQ contracts for the three different types of Utility Monitoring and Control Systems UMCS, which I think ended the endless string of Protests.

Davis-Bacon threshold is similarly enshrined at $2000…

Deleted.

@WifWaf, I didn’t attribute anything to you from my own past or some other discussions. I questioned what this opinion had to do with contracting, caselaw, CFR, etc. and now - how this Elon Musk statement applies in application of complying with FAR 1.602-1(b). Please clarify/elaborate. Thanks. “(b) No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.”

Is this thread related to contracting issues or matters? Please see Terms of Use, rule number 8. “No straying from contracting. All discussions must be related, in some way, to contracting issues and must remain on topic.” It appears to be a request for legal justification to support or argue against a political opinion. We were once upon a time chided by an esteemed member here for providing legal advice, although that water has long flowed over the bridge.😃

The Government agency also has a duty to industry to professionally evaluate solicited proposals using qualified, knowledgeable persons. Ive personally seen a situation where, after depositions of members and the KO, a Board of Contract Appeals directed replacement not only of the SSEB but also the KO. The KO returned their warrant, refusing to serve as KO in the future.

If the contracting officer is the Source selection authority, they have the authority and responsibility to establish the evaluation teams, right? If the KO is not the SSA, obviously they should consult with the SSA. FAR 15.303 “(b) The source selection authority shall- (1) Establish an evaluation team, tailored for the particular acquisition, that includes appropriate contracting, legal, logistics, technical, and other expertise to ensure a comprehensive evaluation of offers;” Please define the role of the “TEP” (Technical Evaluation Panel) as used here. Is this an advisory team to a source selection evaluation board SSEB or similar term)? I don’t know what your agency is (assuming that you are the KO and the Source selection authority). But the DFARS 215.303, DOD Source Selection Procedures, and PGI 215.303 are consistent with the FAR. —————————————-— If you are a supervisor of the person on the TEP or the person on the TEP, I will say that the answer is yes, the SSA/KO can remove your member or you. That includes a member representing a client organization or agency. Of course we don’t know any particulars, including the affected organizations or agencies. Or the magnitude of the acquisition. —————————————- You can look up the definition of “establish” The SSA/KO is responsible for the proper and professional conducting of the SS. So, someone assigned to a technical evaluation panel to technically evaluate proposals and advise a source selection evaluation panel or the SSA/KO is unqualified to technically evaluate the proposals. What value do they add and what business do they have being involved with source selection sensitive/confidential information? Do you need a replacement for the person? Since the KO isn’t the technical representative’s supervisor, I would advise that the KO discuss the situation with the supervisor and seek a replacement, if necessary. i don’t disagree with Vern’s recommendation . But II think that the FAR establishes the SSA/KO’s responsibility and apparent authority to “establish” the teams and add or replace members - especially of advisory panels to the SSA/KO and SSEB. Coordinate with superiors and other offices as much as possible to maintain relationships but don’t shrink from your “duty”.

I agree with you, Vern. Yes evaluate and assess The second sentence, as written doesn’t make sense - unless the “and then assess” refers to a comparison between proposals. But 1) the comparisons between proposals are discussed separately - after the evaluation, in the trade-off process and 2) if they meant “compare”, they should have said “compare”. So, what does evaluate “and then [evaluate]” mean? It doesn’t mean anything!! They also used the term “technical” in various ways. In 15.304 (c)(2) it lists “technical excellence” as one example of a non-cost factor for evaluating quality of the product or service. 15.305 (a) is Technical evaluation. ”When tradeoffs are performed (see 15.101-1), the source selection records shall include- (i) An assessment of each offeror’s ability to accomplish the technical requirements; and (ii) A summary, matrix, or quantitative ranking, along with appropriate supporting narrative, of each technical proposal using the evaluation factors.” In one case it is an example of a quality factor. Next, the technical evaluation encompasses a technical proposal and evaluation factors to evaluate the offeror’s ability to accomplish the technical requirements…

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

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

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

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

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

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

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

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

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

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

Note: SIGAR is Special Inspector General for Afghanistan Reconstruction

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

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

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