Looking for Best Contract Type to Use Under an Aggressive Competition Time Frame

[Voyager]

4 hours ago, Vern Edwards said:

Call me a skeptical pessimist, but I think that any DOD office that has to ask Wifcon Forum for suggestions about how to competitively award a $14M contract in 11 calendar days by any method permitted by FAR and DFARS has a snowball's chance in hell of doing so successfully.

"We Are Tackling Roadblocks..."

"We Are Bridging the Valleys of Death..."

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[Jamaal Valentine]

On 8/8/2024 at 3:48 AM, joel hoffman said:

But see 5.203 (c) for commercial products (supplies) and services:

“c) Except for the acquisition of commercial products or commercial services (see  5.203(b)), agencies shall allow at least a 30-day response time for receipt of bids or proposals from the date of issuance of a solicitation, if the proposed contract action is expected to exceed the simplified acquisition threshold.

Or if curiosity, do you read that as an exception to FAR 14.202-1?

*Also, in addition to other requirements set forth in FAR 5.203, for acquisitions covered by the World Trade Organization Government Procurement Agreement or a Free Trade Agreement (see  subpart  25.4), the period of time between publication of the synopsis notice and receipt of offers must—generally—be no less than 40 days.

[joel hoffman]

It’s apparently commercial services. So they can use simplified acquisition method under 13.5. They could probably seek bids or price only proposals/quotes if they don’t need to do a technical evaluation and instead rely on a responsibility determination under FAR 9.1 of the lowest price.

Am I correct about that?

I still think they ought to expedite the preparation of the solicitation to provide a longer lead time.

I have a feeling that it may be  it’s a “business as usual” effort. 

[joel hoffman]

On 8/9/2024 at 4:33 PM, Jamaal Valentine said:

the period of time between publication of the synopsis notice and receipt of offers must—generally—be no less than 40 days

Ok, so what? Publish the synopsis at least 40 days before the receipt of offers/quotes.

And why not publish a preliminary draft of the solicitation requirements with the synopsis stating that it is for preliminary information only and that there will be an expedited period for submitting offers after issuing the final solicitation.

This could include a statement encouraging interested parties to start organizing and seek team members, etc.

It may be out of the ordinary to maximize the opportunity to publicize the upcoming solicitation and critical schedule for offers and award. The agency might not be able to adapt anything other than doing “business as usual”.

EDIT:

See, for instance, FAR 15.201 “Exchanges with industry before receipt of proposals” for some ideas and methods to notify and communicate with and familiarize industry with upcoming solicitation and short periods for submission and award.

If using simplified acquisition procedures in FAR 12.202,  FAR 13.5, I don’t think that the KO is prevented from considering using applicable tools and methods described in 15.201. 

 

Edited August 12, 2024 by joel hoffman
Added reference to FAR 15.201, 12.202 and 13.5.

[Jamaal Valentine]

20 hours ago, joel hoffman said:

Ok, so what?

There’s around 52 days left and the question was presented to Wifcon…do you feel confident the team has time to understand, implement, get approval, and execute your plan? (“the client is allocating 2 weeks for proposal submission and only 11 days for award.”)

[joel hoffman]

On 8/11/2024 at 12:48 AM, Jamaal Valentine said:

There’s around 52 days left and the question was presented to Wifcon…do you feel confident the team has time to understand, implement, get approval, and execute your plan? (“the client is allocating 2 weeks for proposal submission and only 11 days for award.”)

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. 

[joel hoffman]

On 8/11/2024 at 12:48 AM, Jamaal Valentine said:

do you feel confident the team has time to understand, implement, get approval, and execute your plan? (“the client is allocating 2 weeks for proposal submission and only 11 days for award.”)

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!!

[Jamaal Valentine]

I agree with you, @joel hoffman. Interesting times.

[Vern Edwards]

On 8/11/2024 at 4:19 PM, joel hoffman said:

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 think she said $14.5 million. Fourteen, not four.

How can they not have "technical" (nonprice) evaluation criteria?

[joel hoffman]

On 8/15/2024 at 9:23 AM, Vern Edwards said:

I think she said $14.5 million. Fourteen, not four.

Yes, I didn’t see the 1 in front of the 4.

On 8/15/2024 at 9:23 AM, Vern Edwards said:

How can they not have "technical" (nonprice) evaluation criteria?

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].

Edited August 18, 2024 by joel hoffman

[Vern Edwards]

1 hour ago, joel hoffman said:

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.

I asked because it is not always clear what someone means by the phrase "technical criteria".

The phrase "technical evaluation criterioa" ("criteria") does not appear in FAR. "Technical criteria" appears in five places, but not in parts 7, 9, 12, 13, 14, or 15.

Does "technical evaluation criteria" refer to all "nonprice" criteria? Something less? Does it include responsibility criteria? Does it refer only to criteria concerning the offer itself, or the quote, or does it also refer to criteria concerning the offeror or quoter??

So I was not sure what you meant when you said:

Quote

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.

That's why I asked my question.

[joel hoffman]

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.” 

[joel hoffman]

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.

[joel hoffman]

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. 

[Vern Edwards]

@joel hoffman

The adjective technical is so widely and loosely used that it is almost meaningless in the context of government contracting and thus practically useless as a tool for making distinctions among various considerations. If anyone is going to engage in a discussion and intends to use the phrase "technical factors" then they should be prepared to explain what they mean.

The phrase "technical factor" has appeared in 3,219 GAO decisions since 1964. Here are some quotes:

• "The technical factor included two subfactors, technical approach and management approach."
• "Under the technical factor, the RFP required offerors to address their understanding of the technical requirements and approach to performing the work, including proposing individuals for the key personnel roles of program manager and medical director."
• "Under the technical factor, the RFP provided that the Navy would evaluate proposals to determine offerors' understanding of, approach to, and ability to meet the solicitation requirements; the evaluation would include an assessment of compliance with the solicitation requirements, as well as the risk associated with offerors' approaches."
• "Proposals will be evaluated under two factors, technical and price, and the technical factor consists of the following three subfactors: experience and past performance, accounting system, and facility clearance."
• Under the technical factor, the Army would evaluate offerors' staffing and management plans, organizational diagrams, and staffing and labor mixes.
• The technical factor consisted of three subfactors: (1) key personnel resumes; (2) understanding of the work; and (3) management approach.
• Award would be made to the vendor whose quotation was the most advantageous to the government considering price and two technical factors: ballistic kits and corporate experience.

My conclusion is that the adjective technical is generally sufficient to distinguish price and nonprice factors, but that's about it.  Usage has broadened over the course of time with the growth in service contracting. Today, a technical proposal might include information about anything.

Here is the definition of the adjective technical from Chambers Disctionary:

Quote

technical /tekˈni-k(ə)l/ 

adjective

1. Relating to a practical or mechanical art or applied science
2. Industrial
3. Belonging to, or in the language of, a particular art, department of knowledge or skill, or profession
4. So called in strict legal or technical language
5. Being so by virtue of a strictapplication or interpretation of the rules
6. Caused by a mechanical problemor failure
7. Of or relating to a market whoseprices are influenced by internalfactors (such as supply and demand) rather than externalones (such as general economic conditions) (finance)

I could go on, but I think you get the idea. The phrase technical factors, without explanation, is meaningless for most practical purposes. This is a matter that the members of a true profession would sort out among themselves.

I have been as guilty as everyone else for careless use of the phrase in speaking and writing. 

[C Culham]

And all the while I wonder what advice @lawyergirl provided to her client?

[joel hoffman]

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. 

[Vern Edwards]

@joel hoffman

11 hours ago, joel hoffman said:

I reviewed FAR 15.3, in particular 15.304 and 15.305 in detail...

I'm surprised that you did not mention the confusion in these two sentences in 15.305(a):

Quote

[1] Proposal evaluation is an assessment of the proposal and the offeror’s ability to perform the prospective contract successfully. [2] An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation.

[joel hoffman]

On 8/16/2024 at 7:03 PM, Vern Edwards said:

@joel hoffman

I'm surprised that you did not mention the confusion in these two sentences in 15.305(a):

Are you suggesting that the second sentence might be ambiguous?

On 8/16/2024 at 7:03 PM, Vern Edwards said:

2] An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation.

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.

 

[joel hoffman]

On 8/16/2024 at 8:44 AM, Vern Edwards said:

I could go on, but I think you get the idea. The phrase technical factors, without explanation, is meaningless for most practical purposes. 

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.

Edited August 18, 2024 by joel hoffman

[Vern Edwards]

On 8/17/2024 at 9:38 AM, joel hoffman said:

Are you suggesting that the second sentence might be ambiguous?

Ambiguous? No. Contradictory.

15.305(a):

Quote

[1] Proposal evaluation is an assessment of the proposal and the offeror’s ability to perform the prospective contract successfully. [2] An agency shall evaluate competitive proposals and then assess their relative qualities solely on the factors and subfactors specified in the solicitation.

First sentience: "Evaluation IS an assessment..." (evaluation and assessment are the same process)

Second sentence: "... evaluate AND THEN assess.." (evaluation and assessment are separate processes)

I think the contradiction was introduced by the FAR Part 15 Rewrite of 1997. Haven't checked.

When you get a chance, look up dictionary definitions of evaluate and assess.

This kind of thing is why the FAR does not work as a textbook or a procedural prescription. In any case, no one pays attention. No wonder that newbies get confused.

[joel hoffman]

3 hours ago, Vern Edwards said:

Ambiguous? No. Contradictory.

15.305(a):

First sentience: "Evaluation IS an assessment..." (evaluation and assessment are the same process)

Second sentence: "... evaluate AND THEN assess.." (evaluation and assessment are separate processes)

I think the contradiction was introduced by the FAR Part 15 Rewrite of 1997. Haven't checked.

When you get a chance, look up dictionary definitions of evaluate and assess.

This kind of thing is why the FAR does not work as a textbook or a procedural prescription. In any case, no one pays attention. No wonder that newbies get confused.

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…