FrankJon

Is the idea that the options allow the order to serve as something akin to a "second-tier IDIQ"? Do many go unexercised?

Thank you! I haven't seen these but will check them out.

Thanks for the sanity check!

I noticed a phenomenon in recent years, whereby it seems an increasing number of 1102s describe CLINs that can be exercised to extend the term of the contract as "mandatory" or "optional." For example: OPTION PERIOD ONE 1001: Administrative support services (Mandatory) 1002: Logistical support services (Mandatory) 1003: Additional support services (Optional) These contracts will typically contain clauses 52.217-8 and -9, but no other option clauses and little explanation as to how CLIN 1003 would work in practice if exercised. CLIN 1003 will have the same POP as CLINs 1001 and 1002. What I think these folks are trying to do is distinguish between the option to extend the term of the contract and the option to increase the level of effort (or "surge"). They believe that an "option period" floats above the CLINs at the contract level, and that if the agency exercises this "period," it will fund all "mandatory" CLINs. I've tried explaining to colleagues that option "periods" are actually optional CLINs, and that options are optional, period. I also tried in vain to convince a senior CO that a definitized contract can have multiple different POPs running concurrently. Responses generally range from incredulity to grudging acceptance. I feel like I've been screaming into the abyss here. Are others seeing this in solicitations? Is it common for 1102s to believe that an "option period" somehow exists separate from the contract CLINs, to be exercised in a single decision across all eligible CLINs, as opposed to CLIN-by-CLIN?

I'd be interested to know whether new 1102s are able to comprehend NewFAR better than OldFAR. If nothing else, it should be easier to read, right??

Well, I was talking about acquisition efficiency, not quality. And I had in mind a very specific example when I wrote that -- my agency was in the process of seeking a class deviation for contract type when we moved from OldFAR to NewFAR. Now we don't need a deviation. With that stated, I wouldn't die on this hill defending NewFAR. I think NewFAR is more or less a net neutral from an efficiency perspective. In fact, but for the dubious process OMB took to implement it (which Don has called out), I'd say the most remarkable part of NewFAR is the lack of impact it will have on most agencies and practitioners.

Thanks for your thoughts, Vern.

Gents - To be clear, I’m not proposing to do anything. An agency has utilized this approach and intends to continue to do so. The reasons for doing so are rational and, in any event, the requirement office isn’t keen on changing its approach. My question is whether this runs afoul of procurement rules or principles. Personally, it rubs me the wrong way to potentially disqualify an offeror over reasons outside of its control. But I struggle to articulate why it’s impermissible. The best I can muster is that it’s akin to unstated evaluation criteria. Even though the agency alerts offerors as to its intention to conduct a correlation analysis, offerors have no way to prepare for it or guard against removal from the Best Value Range. It’s a crap shoot. They have to propose good value and then hope that their proposal is sufficiently complementary to other proposals.

It seems like the distinction would be that in my case, we wouldn't merely be bringing in a weak proposal for award, but swapping out an otherwise capable and deserving offeror for a weaker one because the weaker one happens to fill the remaining service gaps better than the stronger one.

Vern - What do you think of this source selection procedure? Specifically, utilizing a correlation analysis as a final step. I'm referring to a statistical correlation analysis. The work is financial in nature and lends itself to this. If you'd like, you can think of this as any source selection consideration that is outside of the ability of offerors to control. Recall that the agency intends to make multiple awards. I invented the term Best-Value Range to describe the group of prospective awardees once negotiations, final evaluation, and tradeoffs are completed. These are the offerors who will receive award unless the results of the correlation analysis dictate otherwise.

Consider the following situation: An agency intends to award multiple definitized (non-IDIQ) contracts for a class of services. The FAR part 15 procedures apply. The agency is seeking a range of approaches defined approaches. Let's call them A, B, C, and D. Some offerors can provide all approaches; some can only provide two or three. The agency is not looking to hit any defined quotas (e.g., one of each approach). It wants redundancy and expects each approach to be performed by two or more contractors. Stated evaluation factors include technical capability, quality, experience, and past performance. The agency informs offerors that it will determine the best-value proposals using a two-phase process. In Phase 1, it will perform tradeoffs between price and non-price factors and rank the proposals by overall strength. At this point the agency determines the Best-Value Range, which is composed of the prospective awardees. In Phase 2, it will perform a correlation analysis. If any of the approaches (A, B, C, or D) are under-represented, the agency may replace an offeror in the Best-Value Range with one another from outside of the Best-Value Range. In other words, the agency may decide that its need for sufficient coverage across all approaches outweighs the relative strength of a proposal. (Assume that the agency has a strong, mission-driven reason for performing the correlation analysis and replacing a comparably stronger offeror with a weaker one.) Questions: Is such a source selection methodology compliant with the FAR? If the agency received a protest before the solicitation closed, would this approach survive scrutiny? Why or why not?

Thank you for sharing this, and thank you for writing it, @Vern Edwards. This is a well-timed article for my agency, as our Director is insisting that we negotiate better terms across some of our largest and most complex contracts. I highlighted relevant portions of the article and shared with my colleagues and legal team. One point that I'm not clear on is where Vern advises agencies to avoid the the negotiation of non-promissory language at pages 13-14 and 16: If an agency requests both promissory and nonpromissory information within the proposal, evaluates both to assess proposal strength, and decides to hold negotiations, the agency must "at a minimum, indicate to, or negotiate with, each offeror any deficiencies or significant weaknesses in the proposal." RFO FAR 15.204-2(b)(1)(ii). Thus, if the nonpromissory information contains significant weaknesses or deficiencies, the agency must address it during negotiations, even if the reason for holding negotiations in the first place was to discuss promissory information. If Vern had instead stated, "Agencies should avoid negotiating exclusively or primarily for the purpose of allowing offerors to remedy nonpromissory weaknesses," I would have agreed wholeheartedly. But I don't see how an agency can negotiate promissory information without also negotiating any nonpromissory significant weaknesses or deficiencies.

The question is whether an agency can convert two or more existing single-award BPAs with overlapping scope into a de facto multiple-award BPA. Putting aside the obvious questions about what on earth OP's agency is doing, my answer to the question under the rules would be no, as the agency made the decision to deny competitors of additional BPAs when it determined that a single-award BPA was in the Government's interest. Converting these single-award BPAs into a multiple-award BPA after the fact subverts GSA competitive procedures and undermines the agency's rationales for awarding single-award BPAs to begin with.

I understand your point, but note that RFO part 16 and the EO are not diametrically opposed. The RFO indeed moved from a restrictive framework ("Contract types not described in this regulation shall not be used") to a permissive framework ("contract types...not described in this regulation, are permitted"). To your point, I imagine on balance the policies will result in a loss of efficiency, but there are still flexibilities to be found in the RFO that weren't there before.

Thank you, Vern. I’m referring to professional and administrative, severable contracts here. The other use of LH I see often is for optional “surge” work. Here, though, the agency is often tightly controlling the number of hours the contractor may work. The Government is very often seeking hours of effort, not an identifiable objective. Bottom line: I’d be willing to bet that the overuse of LH contracts this EO refers to carries much lower cost risk than implied. In practice, LH has evolved into something far different than what regulation intended.