FrankJon

Pepe - That was a transcription error on my behalf. The BPA reference is cited correctly as "8.405-3." Yes, I will have to follow the procedures for BPA calls in excess of the SAT. Is there a particular sentence within that reference that you want to draw my attention to?

C Culham - There is nothing in the BPA terms that stipulates the evaluation process for call orders, apart from "IAW FAR 8.504-3."

Somewhat related tangent: The real shame is that DAU doesn't teach this stuff as part of its core curriculum. The vast majority of their content is focused on non-commercial FAR 15 procedures. I can't tell you how many time I've raised my hand in class to clarify how an issue might change in a commercial environment, and was met with blank stares from the instructors. We are constantly being told by senior DoD leaders and policy directives to "innovate" and to work "smarter not harder," yet our formal education does nothing to reinforce these maxims. Instead, entry- and journeymen-level 1102s are often forced to put themselves out on a limb in order to try something different.

C Culham - Thank you for your reply. The BPAs are already established; this is a competition I am holding among five BPA-holders. While I don't think I agree that terms like "factor, pass/fail and risk" make this "almost like FAR Part 15," I do agree that there is likely room to make this even simpler, yet that may not be feasible at this time. I think it might be helpful if I explain that in my office, it's just me (and perhaps a couple of other quiet warriors) trying to convince about 130 other 1102s and several attorneys to do anything other than LPTA or trade-offs. I am not a supervisor, nor have I ever held a warrant. Few in my office would dare to do something that could be seen by OGC as "cutting corners," thereby increasing protest risk (case-in-point: the award decision for the BPA I am competing this requirement under is 200+ pages). Other than Wifcon, I really don't have many outlets for testing ideas, pushing boundaries, or trying to effect cultural change. I am grateful that I was able to convince my current CO to try something new, but this is uncharted territory for him, too. I am doing my best to persuade others, but without any senior 1102s to guide me or provide cover, incremental improvements may be the best I can hope for.

As a follow-up, my biggest challenge with this has been wrapping my head around the "direct comparison" technique. After years of conducting trade-offs against objective criteria, it's difficult to switch gears and do something that is antithetical to everything I was taught. I would especially be interested in hearing about the experiences and advice of others in this regard.

Wifcon Community - I am seeking critical feedback for my planned evaluation approach. I want to ensure that I have my ducks in a row before approaching Legal with this. This method is based upon a mix of Vern's past posts and the Sevatec holding. Thank you in advance for your assistance. OBJECTIVE: To utilize an evaluation scheme that is more streamlined, intuitive, and flexible than trade-offs, without increasing protest risk. If this works as intended, I would apply it (or some variation) to most of my future service procurements competed under FAR 8.4, 13, or 16.5. CONTEXT: Competitive BPA call pursuant to 8.4. Four FTEs to provide consulting and management support services. Utilizes PWS and exceeds SAT. EVALUATION METHOD: Factor 1: Quote acceptability (compliance w/ T&Cs, in-scope, etc.). (Pass/Fail) Factor 2: Personnel qualifications. (Pass/Fail) Factor 3: Risk - Combination of personnel experience and contractor past performance. (I advised against including PP being that this is a BPA call, but my customer insisted.) Factor three will be evaluated through direct comparisons of quotes. Quotes will be ordered from lowest to highest performance risk. Price will not be a factor, since the Government is willing to pay up to the ceiling rates. Award will be made to the contractor that passes Factors 1 and 2, presents the least amount of performance risk, and quotes a F&R price.

Thank you again, Vern. I think this clarification was needed. I'm going to take some time to digest all of this and see if I can't convince a bold CO to try something new...

Todd - I would say it's a mix of older and younger. My agency is pretty close to the flagpole, as they say. COs are generally leery of running afoul of OGC and PMR guidance, which is generally incongruous with exploiting efficiencies and experimenting.

Vern - Thank you for the thorough response. ji20874 - Thank you for the GAO decisions, which I will review. You are absolutely correct that historically, I have not worked with many COs fully comfortable with using SAP, particularly when over the SAT. When I say that this approach seems like it could be trickier to write to than a traditional trade-off approach, it could just be due to my lack of familiarity with a comparative approach. When I've done trade-offs in the past, I initially compare each proposal to fixed criteria specified in the solicitation. It seems like there would be less risk for error in that situation than when directly comparing proposals to one another, since the proposals may not align and may not be using the same language to discuss the same things. The latter seems like a moving target. But maybe not. Maybe it's just a matter of familiarizing myself and trying it. Thanks again.

As recently as 2008, Villanova Law School was teaching its students to omit the Oxford comma. I do not recall whether that came from our style guide or was the school's preference. In retrospect, it seems like a strange thing to teach law students, who should be more interested in clarity than character counts.

Fine, so your conclusion is...FAR 13 is using the precise term "comparative evaluation" to be synonymous with "trade-offs"? Or do you just not know the answer to my original question (which used a precise term and a precise citation)? I'm genuinely asking.

Thank you, ji20874. The only caveat that I can see is that supporting the decision could become tricky, particularly for complex services, higher dollar values, and/or multiple proposals. I imagine that the CO and COR would really need to be on the same page to substantiate every distinction between proposals (perhaps more so than in the case of a FAR 15 trade-off).

Vern - I am not asking about a trade-off as defined by FAR 15, which allows for comparison only after each proposal has been independently evaluated against fixed criteria. As I understand the meaning of "comparative evaluation" as used in 13.106-2(b)(3), the Government may directly compare the strengths and weaknesses of proposals as they relate *to each other*, as opposed to comparing them to fixed criteria. ji20874's response seems like a plausible real-world application to me: Once proposals have been deemed acceptable, they are compared side-by-side against one another, and the "best" one is chosen. This seems like a flexibility that customers would really appreciate.

napolik - Thank you for sharing the article. I'm aware of the "looks like a duck" FAR 15 trap. I don't think this article quite drills down to the level specificity I am asking for. ji20874 - I appreciate you painting that picture for me (the "subjectively select the quoter" bit). The fact that you are the first person that I've ever heard of doing this is why I would describe it as "non-traditional." I've been contracting in the DC region for 5.5 years now across two agencies, and I never seen nor heard of this. In fact, this question originated from an old colleague, who's also worked at DHS at Vermont and VA in Dallas. Right or wrong, I don't get the impression that the practice is very widespread. I'm curious, are there instances where you would have favored trade-offs when this method was available to you?

I'm curious to know whether anyone has successfully done, or knows of anyone who has successfully done, a comparative evaluation pursuant to 13.106-2(b)(3). Specifically, I'm curious about the following: What did/would this look like in practice? For instance, beyond the evaluation factors themselves, would I need to specify the types of information that would lead to a superior proposal? Are there real efficiencies to be gained by using this method? In your opinion, if there are efficiencies, are they significant enough to be worth the risk of using a non-traditional evaluation method (particularly if the value exceeds the SAT)? I've searched message boards, GAO opinions, and reference books, and talked to colleagues, supervisors, and legal counsel for any precedent on this, but have come up empty. Thanks for your time.

So then what is a Government contracting scenario where price is not influential?

For what it's worth, I think Matthew raises an interesting and valid point of discussion (which is, after all, the purpose of message boards). In Sevatec, price could not have been less of a factor. F&R determination is the bare minimum. If this meets the meaning of the word "substantial" in FAR 15.403-1(c)(1)(i), that renders this use of the word superfluous. Isn't it more likely that the drafters meant something by using this word? Am I missing something?

Did the fact that GSA conducted a thorough cost/price analysis have any bearing on the outcome? What would have happened if GSA had instead conducted a simple price evaluation based on adequate competition? The depth of analysis appears to be immaterial to the decision, yet GAO did make a point to directly quote the steps GSA took.

Well, I received back two responses from DPAP/DARS, which appear to support my initial position (but are probably just vague enough to allow for alternate interpretations). In my first email, I stated: I am seeking an opinion on the applicability of the determination requirement of DFARS 212.207(b)(iii) to acquisitions accomplished using FAR 8.4 procedures. The issue seems to have been left ambiguous in the DFARS due to the fact that DFARS 208 is silent. DPAP/DARS response: FAR 8.404(h)(3)(ii) requires execution of a determination and finding before issuing a time-and-materials (T&M) or labor-hour order under a Federal Supply Schedule (FSS). Since this requirement is located at the FAR level for FSS T&M orders, there is no need to repeat the guidance in the DFARS. I then wrote back for clarification, pointing out that, at a minimum, the requirement for HOA approval in DFARS 212 is in addition to the requirements of FAR 8, not duplicative. DPAP/DARS response: The response provided was intended to point you to the regulatory coverage that seemed pertinent to the information provided in your initial question - pointing out there are separate standards for award of a DoD time-and-materials (T&M) commercial contract at DFARS part 212 from those for issuing a task order under an existing Federal Supply Schedule (FSS) contract pursuant to FAR 8.4. For award of T&M contracts for commercial services, FAR 12.207(b) specifies the minimum content for the determination and findings and approval thresholds. For award of commercial T&M contracts within DoD, the coverage at DFARS 212.207(b)(iii), supplements the requirements at FAR 12.207, implementing the National Defense Authorization Act for FY 2008, which imposed the standard for award of a commercial T&M contract within DoD to be approved by the head of the agency. [Emphasis added.] The POC then goes on to discuss non-commercial requirements under 16 and 216. I wish she had specifically stated that DFARS 212 does not apply to FAR 8 in order to definitively answer the question, but as things are, I do feel comfortable referencing this response as a basis for making a case against my agency's current procedures. I do not believe that the DAR Council intended DFARS 212.207(b)(iii) to influence FAR 8.404(h)(3)(ii).

Thank you both for your input. Your interpretations make sense to me. In addition, I sent an email to the DAR Council, and will report back here if I hear anything definitive.

Good morning Vern, Appreciate the suggestion to contact the DAR Council. I was not aware that this was an option. My intent by posting was to initiate a discussion that might either support or undercut my belief. At best, I may be in a position to change the status quo in my office. At worst, I am scratching an intellectual itch. As you know, there is a lot of bad information in this industry. I learned within my first months on the job never to trust an opinion without verifying on my own. I will pursue the DAR route, but I hope that won't preclude a discussion of ideas within this forum for posterity's sake. Thank you.

SITUATION: I work for the Department of Defense (DOD), and my office executes a healthy number of time-and-materials/labor-hour (T&M/LH) determination and findings (D&Fs). My leadership has decided, at legal counsel's suggestion, that the requirements of DFARS 212.207(b)(iii) can apply to all commercial T&M/LH D&Fs, including those done under the authority of FAR 8.404(h)(3). The upshot is that nearly all such D&Fs require Head of Agency (HOA) signature, since nearly all are defined under paragraph (6) of the "commercial item" definition. As you can imagine, this has created an administrative inconvenience. (The idea of delegating this approval authority to the Head of Contracting Activity (HCA) has been raised and rejected.) QUESTION: My question can be phrased specifically or broadly: Specifically, should HOA signature on commercial T&M/LH D&Fs, in accordance with DFARS 212.207(b)(iii), be required when using FAR 8.4 procedures? Broadly, where FAR 12 specifically instructs the reader to defer to FAR 8.4 on a topic, can DFARS 212 "override" FAR 12? DISCUSSION: I suspect that the answer is "no" (acknowledging that my response is at least partially biased). Part of the challenge here is that for DOD employees, there are no less than 5 different regulatory parts that provide T&M/LH guidance. I will attempt to address each in a logical order in walking through my thinking on this: FAR 16.601(d) provides general guidance for a D&F, and directs the reader to FAR 12.207(b) for "further limitations" when purchasing commercial services. Diverting for a moment to FAR 12.102(c), this assigns precedence to FAR 12 over conflicting FAR parts when purchasing commercial items. FAR 12.207(b)(1) and (2) provide commercial item D&F guidance; however, 12.207(b)(4) states: "See 8.404(h) for the requirement for determination and findings when using Federal Supply Schedules." In my opinion, this language unambiguously intends for the reader to exclusively defer to 8.4 for T&M/LH D&F guidance when using 8.4 procedures. (Compare the language in (b)(4) to the "additional approval" language in (b)(3).) Based on #3, there is no conflict as described under #2. FAR 12 defers to FAR 8 on this specific topic. As promised, 8.404(h) creates its own set of D&F requirements. Significantly, the highest stated approval authority here is HCA. Strangely, DFARS 208 is silent on the topic of T&M/LH contracts. DFARS 212.207(b), however, creates additional limitations when using T&M/LH contract types for commercial items. Specifically, (b)(iii) requires HOA approval when paragraph (6) of the "commercial item" definition applies. DFARS 216.201(d) provides additional limitations and guidance for T&M/LH D&Fs. My opinion is that if DFARS intended to impact the FAR guidance to defer to FAR 8 in these situations, it should have unambiguously done so by addressing it under DFARS 208 (as it did under DFARS 212 and 216). The most compelling counter-argument I've heard is that this reading would nullify the intent of NDAA for FY 2008 (on which DFARS 212.207(b) is based), which views T&M/LH contracts with skepticism and attempts to limit their usage. I agree that it would have been odd for DOD to intend to allow for a FAR 8.4 T&M/LH loophole, but in effect I believe this is what it did by neglecting to address the topic under DFARS 208. What say you, Wifcon community?