Broad LPTA rating definitions

[Sam101]

Say you have an LPTA solicitation that has section L and M looking like this:

Section L:

L.1 Corporate Experience: Offerors shall describe three past relevant contracts that they have been performing for at least three years.

Section M:

M.1 Corporate Experience: The government will determine whether the offeror has sufficient experience based on the three past contracts that they described.

Choice 1 Rating Definitions:

Acceptable: The offeror meets requirements.

Unacceptable: The offeror does not meet requirements.

In this case, the government is free to rate offerors Acceptable even if only one out of their three past contracts are determined to be relevant. And further, Offeror A can be rated Acceptable because only one out of their three past contracts are determined to be relevant, and Offeror B can be rated Acceptable because two out of their three past contracts are determined to be relevant, because the two contracts combined “meets the requirements”, but not by themselves like in Offeror A’s case, and Offeror C can be rated Acceptable because all three of their past contracts were determined to be relevant.

Choice 2 Rating Definitions:

Acceptable: All three past contracts are relevant.

Unacceptable: Not all three past contracts are relevant.

Then an offeror cannot be rated acceptable unless all three of their past contracts were determined to be relevant.

This is my question:

So, it’s better for the solicitation to have the Choice 1 Rating Definitions if the government evaluators want more flexibility in determining who is technically acceptable, correct?

Answering my own question:

I am 99.9% sure that the answer to my question is “yes” because of this:

FAR 15.304(d) says this, emphasis added:

Quote

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. 3206(b)(1) and 41 U.S.C. 3306(b)(1)) (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.

From GAO case U.S. Facilities, Inc. B-418229; B-418229.2:

Quote

An agency’s chosen evaluation rating scheme, however, is not the stated evaluation criteria, nor need it be disclosed in the solicitation.

Quote

Competitive prejudice is an essential element of a viable protest; where the protester fails to demonstrate that, but for the agency’s actions, it would have had a substantial chance of receiving the award, there is no basis for finding prejudice, and our Office will not sustain the protest.

Is anything that is written above "This is my question:" not true?

[joel hoffman]

6 hours ago, Sam101 said:

GAO case U.S. Facilities, Inc. B-418229; B-418229.2:

This was a best value trade off acquisition decision, not an LPTA acquisition decision. 

For LPTA, the government must clearly and comprehensively describe the minimum requirements. The government cannot subjectively judge the qualifications or non-price factors of one proposal as more desirable than another competing proposal. 

Thus, the government must provide enough  information for each proposer to determine the minimum acceptability requirements to qualify for contract award.

Price is the determining discriminator for the award.

“DFARS 215.101-2-70 Limitations and prohibitions.

a) Limitations.

(1) In accordance with section 813 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328) as amended by section 822 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91) (see 10 U.S.C. 3241 note prec.), the lowest price technically acceptable source selection process shall only be used when—

(i) Minimum requirements can be described clearly and comprehensively and expressed in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;

(ii) No, or minimal, value will be realized from a proposal that exceeds the minimum technical or performance requirements;

(iii) The proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal;”

“FAR 15.101-2 Lowest price technically acceptable source selection process.

(c) Except for DoD, in accordance with section 880 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232, 41 U.S.C. 3701 Note), the lowest price technically acceptable source selection process shall only be used when—

(1) The agency can comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;

(2) The agency would realize no, or minimal, value from a proposal that exceeds the minimum technical or performance requirements;

(3) The agency believes the technical proposals will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal;

(4) The agency has a high degree of confidence that reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit to the agency;”

 

[joel hoffman]

16 hours ago, Sam101 said:

Section M:

M.1 Corporate Experience: The government will determine whether the offeror has sufficient experience based on the three past contracts that they described.

If this is the full extent of what you describe  in the request for proposals, then it doesn’t meet the minimum requirements expressed in either the FAR or DFARS references provided above. Why would you expect industry to spend money and resources to prepare technical and price proposals without knowing what is “sufficient experience”  or what is “relevant experience” ? 

[Vern Edwards]

@Sam101

You asked:

17 hours ago, Sam101 said:

Is anything that is written above "This is my question:" not true?

I presume that your question pertains to this set of four propositions, which I have numbered in brackets:

17 hours ago, Sam101 said:

In this case,

[1] the government is free to rate offerors Acceptable even if only one out of their three past contracts are determined to be relevant. And further,

[2] Offeror A can be rated Acceptable because only one out of their three past contracts are determined to be relevant, and

[3] Offeror B can be rated Acceptable because two out of their three past contracts are determined to be relevant, because the two contracts combined “meets the requirements”, but not by themselves like in Offeror A’s case, and

[4 ] Offeror C can be rated Acceptable because all three of their past contracts were determined to be relevant.

You want to know whether we think those four propositions are valid ("true").

You say that RFP Section L states:

17 hours ago, Sam101 said:

Section L:which L.1 Corporate Experience: Offerors shall describe three past relevant contracts that they have been performing for at least three years

Emphasis added. You say that RFP Section M states:

17 hours ago, Sam101 said:

Section M:

M.1 Corporate Experience: The government will determine whether the offeror has sufficient experience based on the three past contracts that they described.

Emphasis added.

I presume that the purpose of your inquiry is to develop an opinion about whether a protest tribunal would agree with your propositions. If so, then I say your propositions [1], [2], and [3] are dubious. Although the RFP does not define "sufficient," RFP Sections L and M, read together, might be interpreted to mean that in order to be "sufficient" an offeror's experience must include three relevant instances of performance. The protest tribunals interpret RFPs as a whole.

The fact that Section L demands ("shall") "three past relevant contracts" i.e., three instances of relevant experience, strongly implies that any proposal which fails to include three independently relevant instances of experience would be unacceptable.

Thus, I think a protest tribunal might well find  your propositions [1], [2], and [3] to be invalid. (Not "true".)

However, a famous legal writer has said that experience, not logic, is the life of the law.

[Sam101]

Thank you Joel,

10 hours ago, joel hoffman said:

FAR 15.101-2 Lowest price technically acceptable source selection process.

Emphasis added:

10 hours ago, joel hoffman said:

(3) The agency believes the technical proposals will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal;

I don't want to be in a situation where all proposals received do not have all three of their past contracts indicating that they were performing them for at least three years... that would mean that I would need to re-solicit, note that corporate experience is not the only evaluation factor, I have multiple very concrete evaluation factors, I just want the corporate experience factor to be flexible to avoid having to award to an offeror just because they have three contracts that meet the three year performance requirement while another offeror has only two out of the three that meets the requirements while being rated technically acceptable for the other factors.

Actually, I already received the quotes (it was an RFQ in real life) and I don't have time to re-solicit, all quotes received did not meet the three year requirement for all three past contracts, that means all quotes would be unacceptable if the rating definitions looked like Choice 2 in my original post.

58 minutes ago, joel hoffman said:

Why would you expect industry to spend money and resources to prepare technical and price proposals without knowing what is “sufficient experience”  or what is “relevant experience” ? 

The quoters will look at the RFQ's SOW and know that if their past contracts were similar then this will be determined to be sufficient and relevant experience.

1 hour ago, joel hoffman said:

Why would you expect industry to spend money and resources to prepare technical and price proposals without knowing what is “sufficient experience”  or what is “relevant experience” ?

Gamble.

[Sam101]

Thank you Vern,

12 minutes ago, Vern Edwards said:

Thus, I think a protest tribunal might well find  your propositions [1], [2], and [3] to be invalid. (Not "true".)

I see this statement in many GAO cases, emphasis added:

Quote

In reviewing a protest challenging an agency’s evaluation, our Office will not reevaluate proposals, nor substitute our judgment for that of the agency, as the evaluation of proposals is a matter within the agency’s discretion.

 

14 minutes ago, Vern Edwards said:

Although the RFP does not define "sufficient," RFP Sections L and M, read together, might be interpreted to mean that in order to be "sufficient" an offeror's experience must include three relevant instances of performance. the protest tribunals interpret the RFPs as a whole.

The best bet to be on the safe side is to re-solicit and relax the corporate experience factor, however I won't re-solicit because I don't have time and it's not out of the realm of possibility that my propositions [1], [2], and [3] are valid, i.e., "true".  

[Vern Edwards]

@Sam101Here's a thought. What if an offeror submits not three, but only one relevant contract? Could you accept its offer?

Don't respond to me. Just think about it.

[C Culham]

22 minutes ago, Sam101 said:

Actually, I already received the quotes (it was an RFQ in real life)

There you go!!!!!!!

[joel hoffman]

1 hour ago, Sam101 said:

Thank you Joel,

Emphasis added:

I don't want to be in a situation where all proposals received do not have all three of their past contracts indicating that they were performing them for at least three years... that would mean that I would need to re-solicit, note that corporate experience is not the only evaluation factor, I have multiple very concrete evaluation factors, I just want the corporate experience factor to be flexible to avoid having to award to an offeror just because they have three contracts that meet the three year performance requirement while another offeror has only two out of the three that meets the requirements while being rated technically acceptable for the other factors.

Actually, I already received the quotes (it was an RFQ in real life) and I don't have time to re-solicit, all quotes received did not meet the three year requirement for all three past contracts, that means all quotes would be unacceptable if the rating definitions looked like Choice 2 in my original post.

The quoters will look at the RFQ's SOW and know that if their past contracts were similar then this will be determined to be sufficient and relevant experience.

Gamble.

Sam, your initial post is quite misleading.

It would have been nice to know that you were talking about commercial item/service “quotes”, not an LPTA Part 15, source selection process.

You repeatedly referred to “proposals”, not “quotes”, “offerors” , not “quoters”, Part 15 source selection procedures, and case law for a Part 15, best value trade-off acquisition.

EDIT: Quotes are not offers. The government makes an offer in response to a quote…

 

Edited May 1, 2023 by joel hoffman

[Don Mansfield]

On 4/30/2023 at 12:03 PM, Sam101 said:

The government will determine whether the offeror has sufficient experience based on the three past contracts that they described.

Isn't the Government already making this determination when applying the responsibility standard stated at FAR 9.104-1(e)?

Quote

 

To be determined responsible, a prospective contractor must-

[...]

(e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors).

 

 

[Sam101]

22 hours ago, joel hoffman said:

You repeatedly referred to “proposals”, not “quotes”, “offerors” , not “quoters”, Part 15 source selection procedures, and case law for a Part 15, best value trade-off acquisition.

Fair enough, however in my original post I was only referring to "offerors".

22 hours ago, joel hoffman said:

and case law for a Part 15, best value trade-off acquisition.

Right, but from B-418229,B-418229.2 the full text is this, emphasis added:

Quote

In a negotiated procurement, an agency is required to identify the bases upon which offerors’ proposals will be evaluated and to evaluate offers in accordance with the stated evaluation criteria.  Competition in Contracting Act of 1984, 41 U.S.C. § 3306(b)(1)(A); FAR §§ 15.304(d), 15.305(a); A-P-T Research, Inc., B-414825, B-414825.2, Sept. 27, 2017, 2017 CPD ¶ 337 at 4; Northrop Grumman Info. Tech., Inc., B-400134.10, Aug. 18, 2009, 2009 CPD ¶ 167 at 5.  An agency’s chosen evaluation rating scheme, however, is not the stated evaluation criteria, nor need it be disclosed in the solicitation.

A negotiated procurement can be LPTA can't it?

22 hours ago, joel hoffman said:

It would have been nice to know that you were talking about commercial item/service “quotes”, not an LPTA Part 15, source selection process.

Why would commercial vs. non-commercial, or Simplified Acquisition Procedures vs. FAR 15 make a difference as to whether or not propositions [1], [2], and [3] are true? Does the fact that it's a commercial buy magically make it true and if it's a non-commercial buy it magically makes it false? Or if it's FAR 13 it's true but FAR 15 makes it false? I don't think that it matters, it's either true or false no matter what FAR part you're using or if it's proposals or quotes or commercial or not.

16 hours ago, Don Mansfield said:

Isn't the Government already making this determination when applying the responsibility standard stated at FAR 9.104-1(e)?

I suppose so, however I always think of responsibility determinations as a lower bar than having corporate experience as an evaluation factor even for LPTA.

[Vern Edwards]

@Sam101

Am I correct in thinking that you are a government contract specialist?

If so, would you tell us what agency you work for?

[Sam101]

39 minutes ago, Vern Edwards said:

Am I correct in thinking that you are a government contract specialist?

Yes, I'm a Contracting Officer.

[Vern Edwards]

Thanks, SAM101, and thanks for the private message.

[joel hoffman]

I’m only going to say here that a quote is not an “offer” ; there are significant  differences between quotes and offers; there are significant differences between best value trade-off and “best value” * LPTA processes; I quoted the requirements to define to the industry what is “acceptable” for an LPTA acquisition process; that concept should be obvious whether making a commercial or non-commercial purchase.

*Please note that, before Part 15 was rewritten in 1996, as part of “Acquisition Streamlining”, the LPTA was not defined as a  “best value” process. It was incorporated in the Part 15 Re-write as being within the “Best Value Continuum”. The Re-Write otherwise was re-miss in not addressing distinctions between the previously separate concepts of LPTA and “best value”.

 

[Vern Edwards]

1 hour ago, joel hoffman said:

there are significant  differences between quotes and offers

@joel hoffmanThis is the Beginners Forum, so please tell us what the differences are.

And don't quote the FAR, because, to the best of my recollection, FAR does not explain the concept of "offer" and does not explain why a quotation is not an offer. If my memory is correct, then the FAR definition of offer is stupid and unhelpful. So please educate us.

And please provide authoritative references that can help beginners.

[C Culham]

2 hours ago, Sam101 said:

or Simplified Acquisition Procedures vs. FAR 15 make a difference

I just have to interject....because SAP is different than FAR 15.   I will agree that you can incorporate some of 15 procedures into a SAP but you do not have to.  And if you do then this is true "In a negotiated procurement, an agency is required to identify the bases upon which offerors’ proposals will be evaluated and to evaluate offers in accordance with the stated evaluation criteria." because by using some of FAR part 15 (LPTA) you made it so, correct?  So my view if truly a procurement that is based solely on FAR part 13 SAP with no FAR part 15 implications your propositions are not applicable nor necessary.  A difference correct?

2 hours ago, Sam101 said:

I always think of responsibility determinations as a lower bar than having corporate experience as an evaluation factor even for LPTA.

Really?   So you are saying that if one has corporate experience that trumps a responsibility determination?   I fear you have not correctly interpreted FAR 9.1 and would suggest a close read would support that responsibility is the higher bar.

[Don Mansfield]

4 hours ago, Sam101 said:

I suppose so, however I always think of responsibility determinations as a lower bar than having corporate experience as an evaluation factor even for LPTA.

Why do you think that?

[Sam101]

5 hours ago, C Culham said:

because by using some of FAR part 15 (LPTA) you made it so, correct?

I never thought about that but now my mind is blown... if not using LPTA or trade-off (including technically acceptable past performance price trade-off) then what are you using? Something with no name? FAR 13.106-1(a)(2)(i) just says the CO shall notify potential quoters or offerors of the basis on which award will be made and FAR 13.106-1(a)(2)(ii) says Contracting officers are encouraged to use best value, and best value is defined as "Best value means the expected outcome of an acquisition that, in the Government's estimation, provides the greatest overall benefit in response to the requirement." in FAR part 2.

I never seen this in any solicitation but does using FAR 13 with no FAR part 15 implications mean that the solicitation can just say "award will be made to the quoter that has the lowest price and is technically acceptable"?... and then magically the propositions in the original post are true? 

6 hours ago, C Culham said:

Really?   So you are saying that if one has corporate experience that trumps a responsibility determination?   I fear you have not correctly interpreted FAR 9.1 and would suggest a close read would support that responsibility is the higher bar.

I'm not saying that having a good rating on a corporate experience evaluation factor trumps the entirety of FAR 9.104-1 General standards as in everything in (a) - (g)... I'm just saying it would probably trump just (e)'s "experience"... but not all of (e) because (e) contains organization, accounting and operational controls, and technical skills, or the ability to obtain them on top of "experience".

4 hours ago, Don Mansfield said:

Why do you think that?

Because having a corporate experience evaluation factor allows the government to choose the best contractor to perform the responsibility determination on. 

[Sam101]

Or perhaps there is such a thing as technically acceptable corporate experience price trade-off, or technically acceptable key personnel price trade-off, or technically acceptable technical approach price trade-off... FAR 15.100 Scope of subpart says "This subpart describes some of the acquisition processes and techniques that may be used to design competitive acquisition strategies suitable for the specific circumstances of the acquisition."... the word "some" may imply that technically acceptable key personnel price trade-off is OK.

[joel hoffman]

21 hours ago, Vern Edwards said:

@joel hoffmanThis is the Beginners Forum, so please tell us what the differences are.

And don't quote the FAR, because, to the best of my recollection, FAR does not explain the concept of "offer" and does not explain why a quotation is not an offer. If my memory is correct, then the FAR definition of offer is stupid and unhelpful. So please educate us.

And please provide authoritative references that can help beginners.

Ok, Sam101 says that he issued a request for quotations (“it was an an RFQ in real life”) and that he had received quotations.

I have no intention of educating you, Vern. 
But I will try to explain some differences between an offer and a quotation to  Sam - at least of prices.

After spending the day doing yard work, I pulled out my textbook from my two Business Law classes that I took in night school in 1982-1983 at Mississippi University for Women in Columbus, MS.  Yes, I was one of the first “W-boys” at MUW, after a male nursing student won a lawsuit opening up the W for males to enroll for credit, not for simply auditing classes. It was in the Division of Business and Economics. My Professor was Dr.James G. Brown, a local Columbus Attorney.

My source is Part 3 Contracts, Chapter 10, “The Agreement” in the textbook Business Law, Eleventh Edition (UCC Comprehensive Volume), published by South-Western Publishing Company,  copyright 1980. The Author was Ronald A. Anderson with Contributing Authors Ivan Fox and David P. Toomey.

One of the essential elements of a contract is an agreement. An agreement is formed when an offer is accepted.

An offer expresses the willingness of the offeror to enter into a contractual agreement regarding a particular subject.  It is a promise, which is conditional upon an act, a forbearance or a return promise that is given in exchange for the promise or its performance.

To constitute an offer, the offeror must intend to create a legal obligation or must appear to intend to do so. When there is neither the intention nor the appearance of the intention to make a binding agreement, there is no contract.

A price quotation, similar to a seller sending out circulars or catalogs listing prices is not regarded as making an offer to sell at those prices, but as merely indicating a willingness to consider an offer made by a buyer on those terms. The same principle is  applied to merchandise displayed in stores with price tags and most advertisements. “For sale” ads in newspapers, etc. are -generally - merely invitations to negotiate and not an offer which can be accepted by a reader.

There are exceptions but I’m using these as examples of “an invitation to negotiate”. 

I became aware then that - even when there is a sticker price on it or an ad for a car, when one goes into the dealership and asks them what their best price is, they will tell you to make an offer.**

My instructor told us that everything with price tags or ads or catalog prices is theoretically, generally negotiable, unless it specifically says otherwise.

“Price quotations, even when sent on request, are likewise not offers… in the absence of the existence of a trade custom which would give the recipient of the quotation reason to believe that an offer is being made….Whether a price quotation is to be treated as an offer or merely an invitation to negotiate is a question of the intent of the party making quotations.”

 I don’t disagree with Vern that it isn’t explained well. The FAR is a mishmash…

And- many government contracting and other acquisition personnel are reluctant to or loathe negotiating. The FAR allows them to offer less than quoted prices or catalog prices and encourages them to seek price reductions.

Yet many a discussion in the WIFCON Forum concern ways to avoid discussions or negotiating for better performance. Sad…

Don’t Colleges of Business teach anything about commercial selling practices or the Uniform Commercial Code, etc.?

** Recently, there is a trend by auto dealers to set “no haggle” prices, which means they aren’t inviting you to make any other price offer. Those might be legally considered to be an offer that the dealer would have to live up to if you accept it.

[Sam101]

Thank you Joel,

Your post is very informative, thank you. I just have one question, does the fact that it's a request for quote make the original post's propositions true or false?

[C Culham]

13 hours ago, Sam101 said:

I never thought about that but now my mind is blown

I will admit I am taking the easy way out of sorts while at the same time encouraging to to do further research.  First here is a link to a Forum thread that I hope encourages your interest to do more research. 

Next try a internet search using this "Quote versus quotation evaluation criteria + Vern Edwards".   Why? Because I think you will find several discussions in Forum and elsewhere that supports the proposition that you can use SAP that incorporates just a little or no elements of FAR part 15.   It is the true intent of FAR part 13 and Vern not only has gone to great lengths to promote same and I have learned much from his discussions.   

And again I will leave it at this you made is so by using LPTA so then you have to depend on your propositions.   But you did not, and I would even offer that for a true FAR part 13 RFQ you should not use LPTA.

As to responsibility thank you for the clarification.

 

[joel hoffman]

1 hour ago, Sam101 said:

Thank you Joel,

Your post is very informative, thank you. I just have one question, does the fact that it's a request for quote make the original post's propositions true or false?

If this is a Part 12, commercial, LPTA acquisition, then see:

“12.203 Procedures for solicitation, evaluation, and award

…(b) Contracting officers shall ensure the criteria at 15.101-2(c) are met when using the lowest price technically acceptable source selection process.”

15.101-2(c):

“(c) Except for DoD, in accordance with section 880 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232, 41 U.S.C. 3701 Note), the lowest price technically acceptable source selection process shall only be used when— 

(1) The agency can comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;  [thus, IMHO, your Section M doesn’t comply with this requirement]

(2) The agency would realize no, or minimal, value from a proposal that exceeds the minimum technical or performance requirements; 

(3) The agency believes the technical proposals will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal; 

(4) The agency has a high degree of confidence that reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit to the agency; 

(5) The agency determined that the lowest price reflects the total cost, including operation and support, of the product(s) or service(s) being acquired; and 

(6) The contracting officer documents the contract file describing the circumstances that justify the use of the lowest price technically acceptable source selection process.”

Please note that the DFARS has similar language…

Also: Unfortunately, the FAR language for solicitations and the SF1449 and other language refers to “offers” and “offerors”. Like Vern indicated, the FAR is stupid (and contradictory) and unhelpful.

 

[joel hoffman]

By the way, Sam, I do agree with you that requiring some specific minimum relevant experience and acceptable past performance on that experience “trumps” the standard responsibility determination. We used to keep getting the same dirtbag contractors before we started using RFP’s and either LPTA or trade off methods in the late 1980’s.. Our performance assessments were insufficient to result in non-responsibility determinations.

After switching to RFP’s, most of the dirtbags disappeared or reformed their behaviors and performance, even with LPTA.

You must clearly describe reasonable and essential minimum acceptability requirements to the industry for an LPTA basis of award. That can be tricky  and must be truly reasonable and necessary criteria in the event of a protest of the terms of the solicitation.