# Presentation: 658820

## Revised FAR 15OrientationDepartment of Veterans AffairsAcquisition Policy Team (95A)Washington, DC

## Introduction

- - Course covers the highlights of the FAR Part 15 rewrite (excluding Subpart 15.4-Contract Pricing).
- - There are lectures, discussions, and team exercises.
- - Focus is on implications and practical applications.

## Introduction (cont’d)

- Three areas of change:
- Terminology
- Acquisition tools available for use
- Acquisition processes

## Introduction (cont’d)

- FAR 15 Rewrite published in FAC 97-02.
- FAR 15 Rewrite represents a milestone in acquisition streamlining and reform.

## Introduction (cont’d)

- Steps in the acquisition process that have been impacted:
- Acquisition Planning
- Determination of need
- Analysis of requirement
- Extent of competition
- Source selection planning
- Solicitation terms and conditions

## Introduction (cont’d)

- Contract Formation
- Solicitation of offers
- Proposal evaluation and negotiation
- Contract award
- Contract Administration
- Initiation of work
- Quality assurance
- Payment and accounting
- Modification and special terms
- Contract closeout or termination

## Background: Terms and Concepts

***Best Value****  - *The expected outcome of an acquisition that, in the Government’s estimation, provides the greatest overall benefit in response to the requirement.  (2.101)

## Background: Terms and Concepts (cont’d)

***Best Value Continuum**** - *The array of source selection strategies and approaches that may be used to reflect the relative importance of cost or price to the final result of an acquisition.  (15.101)

## Background: Terms and Concepts (cont’d)

- 	Government makes a case-by-case determination, tailored to fit its needs, as to which source selection approach or combination of approaches will result in best value, based on:
- Risk of unsuccessful performance
- Definiteness of the requirement
- Amount of development work required
- Relative importance of technical factors and/or past performance
- Cost or price
- Other appropriate criteria  (15.101)

## Background: Terms and Concepts (cont’d)

***Tradeoff Process - ***A source selection approach that *may* be appropriate for use to obtain best value when award to other than the lowest priced offeror or other than the highest technically rated offeror may be in the Government’s best interest.  (15.101-1)
- Formally known as “best value source selection.”
- Definitional distinction has been made to recognize that best value may sometimes be obtained by other than the tradeoff process.

## Background: Terms and Concepts (cont’d)

***Lowest Priced Technically Acceptable Source Selection Process - ***A source selection process that is expected to provide best value by award to the offeror with the lowest evaluated price whose proposal meets the *minimum* standards for technical acceptability (15.101-2).
- Typically involves “Go/no go” or “Pass/Fail” criteria.

## Background: Terms and Concepts (cont’d)

***Oral Presentations**** - *Oral Presentations may be used as a method for presenting  **part** of an offeror’s proposal.
- Opportunity for dialogue between the parties.
- May be used at any stage of the acquisition.
- Opportunity to streamline the acquisition process, _but_: subject to the same restrictions as submissions and exchanges of written information. (15.102)

## Background: Terms and Concepts (cont’d)

***Efficient Competition - ***Not formally defined, but used in Part 15 and Part 52 to denote a situation in which, for reasons of competitive efficiency, _fewer_ than all of the most highly rated proposals are included in the competitive range.  (15.306(c)(2) and 52.215-1(f)(4)).  **   **

## Background: Terms and Concepts (cont’d)

- CICA has _not_ been repealed by the FAR 15 rewrite and still upholds a full and open competition standard.  It does permit the CO to limit the competitive range to the most highly rated proposals, **and further limit the competitive range for purposes of efficiency**

## Best Value

- The goals of the FAR 15 Rewrite were:
- Infuse innovative techniques into the source selection process.
- Simplify the process.
- Utilize resources most effectively.
- Ensure the Government receives the best value on behalf of the taxpayer.

## Best Value (cont’d)

- The goal of all acquisition reform activity:  ensure the Government obtains best value for its requirements while maintaining public trust.
- The best value concept:  best value has always been a goal of the acquisition process.  However, the concept has undergone gradual evolution over time.

## Best Value (cont’d)

- Early concept:  Focus on award decision phase.
- Best value-low bidder
- Best value-lowest price, cost (including life cycle costs, cost of ownership, etc.) and other factors considered
- Best value-lowest price of those meeting the minimum technical standards.
- Best value-highest technically rated offeror, price not unrealistic.

## Best Value (cont’d)

- Shift in focus
- Best Value-result achieved by maximizing competition.
- The more recent focus
- Tradeoff process

## Best Value (cont’d)

- The current view (most highly evolved): The entire acquisition process contributes to best value.
- Acquisition strategy (risk management is preferable to risk avoidance)
- Choice of contracting method.
- Evaluation factors and subfactors including past performance.
- Source selection methodology
- Timeliness and efficiency of process to serve the customer.

## Exchanges

- The nature of exchanges between Government and industry has changed in the FAR 15 rewrite.  The following matrix describes the set of all exchanges which may occur under the new rule.  This is a major aspect of the FAR 15 rewrite.

## Exchanges

## Exchanges (cont’d)

**Concerns**
- In all exchanges, the following requirements are to be strictly observed:
- Procurement integrity (see FAR 3.104)
- Impartiality and fairness (see FAR 15.201 and 15.306(e))
- Privacy/Freedom of Information (see FAR Subpart 24.2)

## Exchanges (cont’d)

**“****On the Bubble” - **The selected class that may engage in communications with the CO, **in addition to mandatory communications with those having adverse past performance as described in the chart above.**
- Characterized by “uncertainty” with respect to exclusion from, or inclusion in, the competitive range.
- Communications must remain “within the four corners of the proposal.”  Anything beyond is entering the purview of discussions.
- (FAR 15.306(e))

## Exchanges (cont’d)

**Release of Government Price - **It is permissible, at the Government’s discretion, to indicate to all offerors the cost or price that the Government has identified as reasonable.  Reasonableness is based on price analysis, market research, and/or other reviews (FAR 15.306(e)(3)).  Government must consider, in the exercise of its discretion, whether this might limit the proposals the Government receives and their contents.

## Exchanges (cont’d)

**Summary** - 3 key attributes of the rewrite:
- Enhanced communication with industry
- Quest for “Best Value” for the Government
- Enhanced effectiveness and efficiency of source selection/acquisition methods

## Lesson A:Exchanges Prior to Receipt of Proposals

## Introduction

- Under the FAR, market research is a required element of the acquisition process
- FAR 15.201 facilitates market research by encouragement of early exchanges with industry for the purpose of improving understanding of Government requirements and industry capabilities
- The goals of these exchanges are: quality, reasonable prices, and an efficient procurement process

## Background

- Early exchanges include exchanges of information among all interested parties, from the earliest identification of a requirement through receipt of proposals.

## Interested Parties

- Interested parties include:
- Potential offerors
- End users
- Acquisition and support personnel
- Others involved in the conduct or outcome of an acquisition

## Benefits of Exchanging Information

- Supports the market research process
- Improves the quality of the RFP
- Allows potential offerors to judge how best the Government’s requirement can be satisfied

## Types of Information Exchanged

- Acquisition strategy
- Proposed contract type
- Terms and conditions
- Acquisition planning schedules
- Statements of work
- Data requirements
- Proposal instructions and evaluation factors and subfactors
- Approach to assessing past performance information
- Other concerns or questions

## Procurement Integrity

- Any exchange of information must be consistent with procurement integrity and nondisclosure requirements (see FAR 3.104 and FAR 24.2)

## Techniques of Promoting Information Exchanges

- Industry or small business conferences
- Public hearings
- One-on-one meetings with potential offerors (include the CO in any meetings where substantial exchanges about potential contract terms and conditions might occur)
- Market research
- Presolicitation notices
- Draft RFPs
- Requests for Information (RFIs)
- Presolicitation or preproposal conferences
- Site visits

## Methods of Exchanging Information

- Selecting the method - decision should weigh the complexity and risks associated with the acquisition
- Conferences held prior to drafting requirements documents are highly desirable
- One-on-one exchanges are valuable for making available information that the potential offeror might not reveal at a conference or public meeting
- CO should attend any meeting where substantial exchanges about potential contract terms and conditions might occur

## Methods of Exchanging Information - other considerations 

- CO should avoid any appearance of “wiring” the procurement.  Example: solicitation language that favors one potential offeror over another which provides no obvious benefit to the Government
- Any specific information about a proposed acquisition that is **necessary for proposal preparation** shall be made available to the public as soon as practicable, but no later than the next general release of information (15.405-2)

## Methods of Exchanging Information - other considerations (cont’d)

- Do not disclose information if doing so would reveal the potential offeror’s confidential business strategy and would be protected under FAR 3.104 or FAR 24.2
- Publicizing methods include CBD, electronic bulletin board notices, the Internet, and trade magazines.  Format for special notices is found at FAR 5.205(c)
- Ensure comparable access to Government officials is granted to all potential offerors.

## Presolicitation Notices

- Shall be transmitted by CBD (FAR 5.204). Should additionally be mailed to known suppliers and service providers.
- Under the Advisory multi-step process (FAR 15.202), CO precisely defines the information to be furnished be respondents for consideration for the purpose of advising offerors about their potential to be viable competitors)
- Notices must comply with FAR 15.201, 15.202, and agency policies
- Send a copy of the solicitation to all respondents who respond affirmatively to the presolicitation notice

## Presolicitation or Preproposal Conferences

**General** information about agency mission needs and future requirements may be disclosed at a presolicitation or preproposal conference, or at any other time
- The Government may invite all known potential offerors at the time of the meeting.  All known potential offerors include:
- Prior to publicity:  All on the solicitation mailing list
- All who responded to an RFI
- All who attended a previous presolicitation or preproposal conference or site visit pertaining to the proposed acquisition
- Do not use such conferences to prequalify offerors
- Make conference materials available to all potential offerors

## Requests for Information (RFIs)

- Appropriate for relatively complex requirements that are difficult to explain in a CBD synopsis.
- Supports the submission of larger quantities of data and information from potential offerors
- May be used when the Government does not presently intend to award a contract but wants to obtain price, delivery, other market information, or capability information for planning purposes.
- Responses are not offers
- No required format for an RFI; however, incorporate the clause at 52.215-3 when issuing RFIs

## Advisory Multi-Step Process

- A presolicitation process whereby the Government publishes a presolicitation notice setting forth its requirement and inviting potential offerors to submit information that allows the Government to advise them about their potential to be viable competitors for a forthcoming acquisition (FAR 15.202)
- Goal is to save offerors the expense of submitting proposals when they have little or no chance of being awarded a contract
- Information requested is generally capability-related with an emphasis on information bearing on pass-fail criteria
- Example: a fireworks producer is advised that it is not a viable competitor for a requirement for nuclear weapons production

## Advisory Multi-Step Process (cont’d)

- Response letter details the Government’s rationale for its recommendation.
- No debriefing rights for parties who have not submitted a proposal
- Does not preclude the offeror from participating in the acquisition if they so choose
- Not a FAR Part 9 pre-approval process
- Potential offeror’s decision not to participate in the process does not affect their right to participate in the acquisition, including submission of a proposal

## LESSON B:  NON-PRICE EVALUATION FACTORS

## ACQUISITION TAILORING

- Each acquisition should tailor the :
- Source selection process
- Type and number of factors and subfactors
- Techniques that will be employed to optimize the acquisition process

## MANDATORY FACTORS

- Three mandatory factors for every acquisition
- Price
- Quality
- Past Performance

## MANDATORY PAST PERFORMANCE

- For all competitive source selections  expected to exceed $1 million (FAR 15.304(c)(2)).
- By Jan. 1, 1999, all competitive source selections exceeding $100,000.  Should be using as much as possible now.

## SIGNIFICANT FACTORS

- All factors that would significantly increase the probability of meeting or exceeding the requiring activity’s cost, schedule and performance goals.
- Entire Acquisition Team should be involved in this process.
- Focus should be on the BIG payoff factors
- Total number of factors and subfactors should be kept to a minimum.

## COMMERCIAL ITEMS

- 	Ordinarily, subfactors should not be used.  The statement of need should describe the type of product or service to be acquired and explain how the agency intends to use the product or service in terms of function to be performed, performance requirements or essential physical characteristics.

## COMMON PROBLEMS WITH PROPOSED FACTORS 

- Omissions (e.g., missing standards)
- Vagueness of ambiguity
- No apparent relationship to SOW
- Inconsistency with SOW or with draft proposal instructions
- Appearance or being arbitrary or capricious
- Insufficient supporting documentation

## BEST VALUE CONTINUUM

- Tradeoff process (what we previously described as best value)
- Lowest price, technically acceptable
- File documentation should be of sufficient detail to support validity and reliability of selected acquisition process.

## TRADEOFF PROCESS

- Used when it is in the best interest of the Government to consider award to other than the lowest priced offeror or other than the highest technically rated offeror.

## TRADEOFF PROCESS

- Before using, contracting officer must analyze the requirement’s complexity, the risks inherent in the requirement, Government resources and lead-time available to determine if the benefits outweigh  the costs of the tradeoff process.

## REQUIREMENTS FOR USE 

- All evaluation factors and significant subfactors that will affect contract award and their relative importance shall be clearly stated in the solicitation (FAR 15.101-1).

## REQUIREMENTS FOR USE

- The solicitation shall state whether all evaluation factors other than cost or price, when combined, are significantly more important than, approximately equal to, or significantly less important than cost or price (FAR 15.101-2).
- The higher the risk, the greater the emphasis should be on other than price-related factors.

## TRADEOFF PROCESS

- Do the perceived benefits of the higher priced proposal merit the additional costs?
- If so, rationale for tradeoffs must be documented.

## TRADEOFF PROCESS (CONT.)

- Perceived benefits of higher priced proposal must merit additional cost.
- Rationale for tradeoffs must be documented (FAR 15.406).

## COMMMERCIAL ITEMS

- Offerors are required to provide contract numbers, points of contact and telephone numbers and other relevant information. (FAR 52.212-1(b)(10)

## LOWEST PRICE TECHNICALLY ACCEPTABLE (LPTA)

- Used when best value is expected to result from the selection of the technically acceptable proposal with the lowest evaluated price (FAR 15.101-2).

## SOLICITATION REQUIREMENTS (LPTA)

- Must set forth the evaluation factors and significant subfactors that establish the requirements for acceptability.  IF A PROPOSAL DOES NOT MEET THE ACCEPTABILITY REQUIREMENTS, NO FURTHER EVALUATION SHOULD TAKE PLACE.
- Must state that award will be made to the lowest evaluated priced proposal meeting or exceeding the standard.

## PAST PERFORMANCE

- Required as an evaluation factor for all requirements in excess of $1 million.
- Recommended for all source selections over $100,000.
- Required for all solicitations over $100,000 after Jan. 1, 1999.
- Need not be included if CO documents why it would not be a valid factor.

## SOLICITATION PROVISIONS

- Include provisions that extend to each offeror the opportunity to identify existing or past contracts with terms and conditions the same as or similar to those in the current solicitation.
- Allow offerors to provide information encountered during performance of those contracts and steps taken to correct them.  (FAR 15.305)

## LESSON C:SCHEDULING, MANAGING, AND DOCUMENTING ORAL PRESENTATIONS

##  ORAL PRESENTATIONS

- Oral presentations may occur at any time in the acquisition process & are subject to the same restrictions as written information (i.e., timeliness, nondisclosure of information, confidentiality protections.)
- CO must ensure that sense of fairness is maintained.  In so far as possible, length of presentation should be the same for all.

## ORAL PRESENTATIONS (CONT.)

- Should be attended by all members of the evaluation team.
- Provide an opportunity for dialogue among the parties.
- Cannot substitute for the written submission of certifications, representations, and a signed offer.

## ORAL PRESENTATIONS (CONT.)

- CO must maintain a record of oral presentations  to document the Government’s reliance on the presented data or information.

## ORAL PRESENTATIONS (CONT.)

- Whenever possible, CO should obtain advance copies of presentation to ascertain:
- whether the solicitation’s instructions regarding  info. to be presented are clear;
- qualifications of personnel making presentations;
- scope and content of exchanges that may occur between participants; and
- that time restrictions will be followed.(15.102(d))

## INFORMATION TO BE PRESENTED

- When oral presentations are required, the solicitation must provide offerors with  sufficient information regarding their preparation.  This may include:
- Types of information to be orally presented.
- Qualifications for personnel that will be presenting.

## INFORMATION TO BE PRESENTED (CONT.)

- Requirements for, and any limitations and/or prohibitions on, the use of written material or other media to supplement the oral presentations.
- Location, date, and time for the presentation.
- Time limits for the presentations.
- Scope and content of exchanges that may occur between parties during the oral presentations.

## DECISION TO USE

- Should take into consideration:
- Government’s ability to adequately evaluate the information.
- The need to incorporate any information into the resultant contract.
- The impact to small business.  This consideration should consider cost and alternatives to on-site presentations.

## PRE-RECORDED PRESENTATIONS

- Are not oral presentations since they do not allow interactive dialogue.
- Should be treated the same as written information (15.102(a)).

## CO RESPONSIBILITIES

- Brief evaluation team on roles and responsibilities during and after presentation.
- Attend and chair the presentation.
- Brief all participants on “ground rules”.
- Ensure record is made documenting what the Government relied on in making its source selection.

## Lesson D:  Processing Proposals

## Introduction

- The offeror’s responsibility is to submit proposals in accordance with the instructions set forth in the solicitation
- The Government’s duties and responsibilties are:
- The marking of the date and time of receipt
- Transmittal to appropriately designated officials
- The determination of the acceptability of late or unreadable proposals
- The safeguarding of information in proposals from inadvertent disclosure to other than those whose duties give them access to it

## Receipt and Marking

- On receipt at the location specified in the solicitation, proposals and other information received in response to an RFP shall be marked with the date and time of receipt and transmitted to the designated official (usually either the CO or the Source Selection Authority (FAR 15.207(a))
- FAR 15 does not specify any mandatory safeguarding techniques.  Sound business judgment must be exercised in this regard.
- Offerors are required to affix appropriate markings both on the title page and on any page(s) of their proposal which contain restricted data (i.e., data which they do not want disclosed to the public or used by the Government for any purpose other than evaluation purposes

## Late Proposals

- Both the Government and the offeror have responsibilities to ensure the timely submission or delivery of proposals and modifications.
- Late proposals are covered under FAR 15.208(b) and 52.215-1(c)(3)(I)
- Late is late (i.e., received in the designated Government office after the exact time specified for receipt), *with exceptions*

## Exceptions to “Late is Late”

- 2 pronged test must be passed for a late proposal to be considered:
- 1st Prong: it must be received before award is made
- 2nd Prong: it must satisfy one of the following conditions:
- It was sent by registered or certified mail, and it had to have been sent not later than the fifth calendar day before the date specified for receipt
- It was sent by regular mail (or telegram or facsimile, *if authorized*) or hand carried (this would include delivery by a commercial carrier) and the proposal was late due *primarily* to Government mishandling

## Exceptions to “Late is Late” cont’d

- It was sent by USPS Express Mail Next Day Service (post office to addressee), and it must have been sent not later than 5:00 pm at the place of mailing two working days prior to the date specified for receipt
- It was transmitted through an electronic commerce method *authorized by the solicitation, *and it had to have been received at the initial point of entry into the Government infrastructure not later than 5:00 pm one working day prior to the date specified for receipt
- There is acceptable evidence to establish that it was received at the designated activity and was under the Government’s control prior to the time set for receipt, and the Contracting Officer determines that accepting the late offer would not unduly delay the procurement
- Only one proposal is received.  * *

## Late Proposals - Other Considerations

- Commercial items: This is a FAR 15 lecture. For commercial items, FAR 12 takes precedence, where late “really is late” - no exceptions
- Notification - CO must promptly notify any offeror if its proposal was received late and shall also inform the offeror whether or not it will be considered.  If award is imminent, the notice prescribed in FAR 15.503(b) will suffice in lieu of a separate notice of lateness.
- Unopened - late proposals that will not be considered shall not be opened, except as may be required for purposes of identification, and shall be retained with other unsuccessful proposals (FAR 15.208(e)).

## Opening and Processing of Proposals

- Once proposals have been received and marked, and any necessary determinations have been made regarding lateness:
- Proposals should be reviewed to determine if there are other reasons why it may not be considered or if there is some defect (such as an unreadable submission) that will require correction or other pre-evaluation action to prepare the proposal to be properly evaluated in accordance with evaluation factors and subfactors
- Garbled transmissions - if any portion of a proposal received electronically or by facsimile, *as authorized by the solicitation*, is unreadable, the CO is required to notify the offeror immediately and permit the resubmission of the unreadable portion

## Opening and Processing of Proposals (cont’d)

- Garbled transmissions (cont’d) - After consultation with the offeror and a review of any documentation in the file, the CO shall prescribe the the method and time for resubmission.  If the offeror complies with the terms of the resubmission, the proposal shall have be considered to have been received at the date and time of the original unreadable submission
- Informalities and Irregularities - includes:
- variances from the solicitation
- incomplete proposal
- other irregularities

## Opening and Processing of Proposals (cont’d)

- Informalities and Irregularities(cont’d) - The Government may, when choosing to award without discussions, either **waive ***informalities and* *minor* *irregularities* (see FAR 52.215-1(f)) or it may seek to **clarify** or **resolve** *minor or clerical errors* through **clarifications** (FAR 15.306(a))
- Other reasons for not considering a proposal:
- Offeror has been debarred
- Offeror is a large business and is responding to a procurement set aside for small business
- Notification the above cases is required in accordance with FAR 15.503(a)

## Safeguarding Information

- Examples of information that need to be safeguarded (references: FAR 3.104, 15.207, and 15.306(e)):
- Source Selection and Tech evaluation plans
- Field pricing reports and audits
- Cost or price evaluation of proposals
- Technical evaluations
- Competitive range determinations
- Ranking of proposals or competitors
- Reports and evaluations of source selection panels, boards, or advisory councils
- Identity of individuals providing past performance information

## Withdrawal of Proposals Prior to Award

- Reference:  FAR 15.208(g)
- Acceptable method of withdrawal corresponds to the method of submission
- One copy of withdrawn proposal should be retained in the contract file
- Extra copies may be destroyed, or returned at the offeror’s request and at the offeror’s expense
- For withdrawn electronically submitted proposals, the data received shall not be viewed and it shall be purged from both the primary and back-up storage systems

## Assembling the Evaluation Team

- The source selection authority (the CO unless another person is appointed by the agency head) is responsible for establishing the evaluation team
- Team shall include expertise appropriate to ensure a comprehensive evaluation of proposals
- Each team member shall be briefed concerning conflicts of interest, information non-disclosure, and the limitations on conduct necessary to uphold the integrity of the acquisition process (FAR 3.104 and 15.306(e)

## Lesson E:Applying Past Performance, Technical, and Other Non-Price Factors

## Introduction

- It is the CO’s responsibility to provide technical evaluators with clear and correct instructions on how to evaluate technical proposals
- The goal of the technical evaluation process is a technical evaluation memorandum and follow-up discussions with the tech eval team which enables the CO to
- Determine the need for communications and factfinding
- Determine the need for amending or cancelling the RFP
- Present and support negotiation objectives/areas of discussion
- Determine the competitive range
- Provide constructive information to offerors for use in debriefings

## Introduction (cont’d)

- The CO should ensure that evaluator ratings or scorings of technical proposals are based solely upon the factors and subfactors specified in the solicitation, and that an appropriate, valid rationale is provided in support of ratings or scorings

## Information Provided to Evaluators

- Technical evaluators need relevant information to perform a proper evaluation
- Agency may wish to provide cost information (at some point in the evaluation process) so that technical evaluators will be able to determine whether the technical approach and price are consistent and that risks have been accounted for
- Team should be composed of individuals possessing specialized knowledge/skills necessary to conduct a proper evaluation

## Instructions to Technical Evaluation Team

- Create initial ratings and/or analysis of how each proposal fares against the solicitation factors and, if any, subfactors
- Detail the proposals’ specific deficiencies and strengths relative to the solicitation’s requirements and evaluation factors and translate this into a team rating or score
- Rank each proposal in a comparative assessment of each proposal’s potential for award
- Perform a cost analysis, price analysis, or cost realism analysis, using appropriate data from the proposals

## Instructions to Technical Evaluation Team (cont’d)

- Determine the need for communications about the proposals and develop, if necessary, specific questions to be asked of offerors
- Determine the need to amend the RFP and develop, if necessary, specific amendments
- Recommend negotiation objectives
- Prepare to provide debriefing support
- Evaluation Team Leader and any other team members (as required by agency) should sign the summary evaluation report

## Exclusion

- Remember: FAR Part 15 allows technically acceptable proposals that are not among the most highly rated to be excluded from consideration

## Evaluation Caveats

- Rate proposals against the RFP’s factors and subfactors
- No contact by Evaluation Team with offerors unless approved by CO
- Safeguard source selection and proprietary information
- Ensure no conflicts of interest exist

## CO’s Review of Technical Evaluation Report

- CO should ensure report is complete and well-documented
- CO should identify inconsistencies between proposed labor mix and hours, material mix and quantities, tasks or schedules and other parts of the offeror’s proposal, audit reports, or data from other sources
- CO should ensure RFP evaluation factors were the basis for evaluation and that the report contains an analysis of the strengths and weaknesses relative to each of the evaluation factors and subfactors
- CO should ensure the report contains a summary, matrix, or quantitative rating or score for each proposal in relation to the best possible score
- CO should ensure the report contains a summary of findings

## Technical Negotiation Objectives

- CO should obtain sufficient factual data to establish and support negotiation objectives recommended in the evaluation report.
- CO should be careful not to reveal an offeror’s technical solution, unique technologies, innovations, or other intellectual property to another offeror

## Surveying Past Performance:Introduction

- Past performance is a “mandatory” evaluation factor for all negotiated source selections over $1,000,000
- CO may decide past performance “is not an appropriate evaluation factor” on a case-by-case basis.  If this decision is made, the file must be documented (FAR 15.304(c)(3)(iii))
- Past performance includes:
- similar work for the Government
- similar work for private-sector customers

## Surveying Past Performance:Introduction (cont’d)

- Past performance of the offeror and/or proposed key personnel and/or subcontractors may be considered
- Purpose of considering past performance: gain a better understanding of the offeror’s ability to perform the instant acquisition successfully
- Past performance evaluation is not synonymous with and is completely separate from responsibility determinations under FAR 9.1

## Targets of Past PerformanceSurveys

- Federal, state, local, and private customers identified in the proposal
- Customers of predecessor companies
- Customers of key personnel with relevant experience
- Customers of major or critical subcontractors
- Comprehensive targeting reduces the likelihood that new firms will be assigned a rating of “no past performance information”

## Past Performance Proposal Data

- Offerors should be required to provide, at a minimum, contract numbers, points of contact with telephone numbers, and other relevant information
- NOTE: This information is required for commercial item solicitations by FAR 52.212-1

## Surveying Past Performance

- Goal of survey: collect consistent (type of data received from offeror to offeror), reliable, and valid data in order to apply the past performance evaluation criteria in the solicitation
- Questions should be direct and relevant to the evaluation criteria
- CO must insure no disclosure of source selection information occurs in the survey process
- CO should be prepared to discuss the information being provided and answer reasonable questions from those being surveyed

## Sources of Past Performance Information

- Relevant data may be obtained from any source (not confined to sources provided in the proposal)
- CO should consider obtaining information from other contracting activities (see FAR 42.15)
- Offeror must have an opportunity to comment on adverse information (information that causes the elimination of the offeror from competition - see FAR 15.306(b)(1)(i)) and should have opportunity to comment on or clarify all information
- Do not reveal the identity of sources

## Rating Past Performance 

- Ensure offeror has had an opportunity to comment on adverse information
- Consider number and severity of problems
- Consider the effectiveness of corrective actions taken by the offeror to mitigate problems
- Consider the offeror’s overall work record
- Consider the age and relevance of the past performance information

## Rating Past Performance (cont’d)

- CO should be mindful of possible bias of sources
- Offerors with no record of relevant past performance or for which no information is available may not be evaluated either favorably nor unfavorably on past performance
- Past performance ratings should be well-documented to demonstrate that the rating given was reasonable

## LESSON F.1AWARD WITHOUT DISCUSSIONS

## OVERVIEW

- Agencies required to decide whether or not to hold discussions prior to issuance of solicitation.
- FAR 52.215-1 - Award without discussions is now the standard.  Awarding with discussions is an alternative.
- Past performance can be clarified and award still made without discussions.

## AWARD WITHOUT DISCUSSIONS

- Use when:
- Requirements are well understood by offerors;
- Commodities are from known or technologically static sectors; or
- The marketplace is extremely competitive.

## AWARD WITH DISCUSSIONS

- Use when:
- There are weaknesses or deficiencies in all submitted proposals
- Prices appear unreasonably high or low when compared to previous prices or current prices for same or similar items, or when offered prices suggest that offerors do not understand the requirement

## CLARIFICATIONS

- FAR 15.306(a) defines a :”clarification” as a limited exchange between the Government and an offeror conducted when an award will be made without discussions.

## LIMITATIONS ON CLARIFICATIONS

- Used to give offerors the opportunity to clarify aspects of their proposal in order to resolve minor or clerical errors.
- Used to permit offerors an opportunity to address adverse performance information that was not previously addressed.

## LESSON F.2COMMUNICATIONS

## COMMUNICATIONS

- “Exchanges between the Government and offerors, after the receipt of proposals, leading to establishment of the competitive range.” (15.306(b))

## COMPETITIVE RANGE

- Those offerors that include the most highly rated proposals or those with the greatest likelihood of getting an award.
- Change in philosophy.  Prior philosophy could be expressed as “when in doubt, leave them in.”  New philosophy could be expressed as “when in doubt. Throw them out”.

## CONDITIONS FOR HOLDING COMMUNICATIONS

- Must be held with offerors whose adverse performance information is the determining factor for preventing them from being included in the competitive range. (15.306(b)(1) and (4))
- May only be held with offerors whose inclusion in the competitive range is uncertain. (On-the-bubble)(15.306(b)(3))

## ISSUES TO BE ADDRESSED

- All issues that are relevant to determining whether a proposal will be included in the competitive range (Within the 4 corners of the proposal).
- CO should only solicit information that will clear up any “gray areas”.

## Lesson F.3ESTABLISHMENT OF THE COMPETITIVE RANGE

## COMPETITIVE RANGE

- Should include only the most highly rated proposals.
- These proposals must have been evaluated in accordance with the factors and subfactors set forth in the solicitation.

## COMPETITIVE RANGE (CONT)

- If  there are too many to evaluate efficiently, agency may restrict the competitive range to the greatest number that will permit “an efficient competition” among the most highly rated proposals.  FAR does not define “efficient competition”.  However, solicitation must have included notice that this might happen.

##  EFFICIENT COMPETITION

- Factors to consider before using:
- The expected dollar value of the award
- The complexity of the acquisition and the solutions proposed
- The extent of available agency resources
- Any other relevant considerations

## PREAWARD NOTICE OF EXCLUSION

- All offerors that have been excluded from the competitive range must be notified in writing.
- Notice must include the basis for exclusion and a statement that the agency will not accept a revised proposal.

## REQUESTS FOR DEBRIEFING

- Excluded offerors may request debriefing:
-  by submitting a written request for debriefing within 3 days after receipt of notice of exclusion; or
- delaying debriefing until after award has been made.

## Lesson F.4Negotiation Strategy: Planning Competitive Discussions

## Introduction

- Once the competitive range has been established, the Government engages in exchanges with all offerors within the range with the intent of allowing proposal revisions to obtain the best value result.  These exchanges are called **discussions**.
- CO prepares for discussions , the CO reviews the evaluations that have been conducted and briefs the team members that will participate in discussions.

## Objective of Discussions

- Primary objective is to persuade offerors to revise their proposals in ways that will optimize results for the Government, based on the requirement and the evaluation factors set forth in the solicitation
- Negotiation strategies and tactics should be tailored to each offeror’s proposal
- Focus on discussion of significant weaknesses, deficiencies, and other aspects of the proposal which could be altered or explained to enhance materially its potential for award

## Planning Competitive Discussions

- CO determines the scope and extent of discussions
- Where permitted by the solicitation, explore opportunities to increase performance beyond mandatory minimums or reduce excesses which are not “integral to the design” (see FAR 15.306(d)(3))
- CO organizes and briefs the Government’s negotiation team on
- Control of exchanges in accordance with FAR 15.306
- Procurement integrity policies at FAR 3.104

## Planning Competitive Discussions (cont’d)

- All negotiation objectives should be fully supported based on facts and market knowledge
- Objectives should be complete in covering all significant weaknesses, deficiencies, and other aspects of an offeror’s propsal that could, in the opinion of the CO, be altered or explained to enhance materially the proposal’s potential for award
- Research the most likely sources of information concerning the offeror’s past practices, market position, negotiation style, and probable approach

## Planning Competitive Discussions (cont’d)

- Assess the offeror’s bargaining strength based upon:
- The number of offerors
- Time constraints
- Negotiation skills of each side
- Importance of the contract to each party
- Risks inherent in the contract for each party
- Special non-price issues of importance to each party

## Planning Competitive Discussions (cont’d)

- Establish negotiation priorities and potential tradeoffs or concessions
- Rank issues in order of importance to the two parties
- Determine “negotiation range” for the Government’s position on each issue
- Compare Government’s issues and positions with offeror’s anticipated issues and positions to develop a negotiation strategy
- Recognize the offeror’s relative strengths and weaknesses to select tactics that are most likely to be effective in accomplishing the Government’s negotiation objectives
- Incorporate all analyses into a prenegotiation plan
- Prepare to be flexible and receptive to change during the negotiation process

## Planning Competitive Discussions (cont’d)

- CO should seek to obtain buy-in from all team members (and management approving officials) on
- Prenegotiation objectives
- Identification of key issues
- Roles assigned team members
- Negotiation schedule
- Limits of concessions or commitments to be made by the Government
- CO should develop, in consultation with the offeror, a separate and tailored negotiation agenda for each offeror which includes, at a minimum. A schedule, a list of topics for discussion, names and titles of participants on both sides, and time and location for the discussions

## Lesson F.5Discussions

## Introduction

- Discussions: negotiations which take place in a competitive acquisition
- Conduct of discussions is permitted after establishment of the competitive range
- Primary objective: persuade offerors to revise their proposals in ways that will optimize the result for the Government, based upon requirements and evaluation factors set forth in the solicitation

## Introduction (cont’d)

- CO determines whether discussions shall be held, and if so, their scope and extent
- Discussions have been a part of the procurement process since passage of ASPA in 1947 and FPASA in 1949
- Clinger-Cohen Act of 1996 reinforced the use of discussions if determined appropriate
- This lesson focuses on regulatory guidance of FAR 15 and exercise of the CO’s judgment

## Definitions

*Discussions *are defined as exchanges with offerors, in a competitive acquisition, that occur after the establishment of a competitive range (FAR.306(d))
- Discussions are a subset of negotiations
*Negotiations* are
- Undertaken with the intent of allowing an offeror to revise its proposal
- May include *bargaining*, which is defined as
- persuasion;
- alteration of assumptions and positions; and/or
- give and take between the parties

## Discussions: Responsiblity

- The CO is responsible for the determination whether or not to hold discussions, and for their scheduling and content (FAR 15.306(d)(3))

## Discussions: When they do not occur

- Dealing with prospective offerors after release of a solicitation, but before the closing date for submission of proposals (*exchange of information - *FAR 15.201)
- Dealing with actual offerors after the receipt of proposals when award without discussions is contemplated (*clarifications* - FAR 15.306(a))
- Dealing with actual offerors after the receipt of proposals but before the establishment of the competitive range (*communications* - FAR 15.306(b))

## Discussions: When they do occur

- Exchanging information with actual offerors after the establishment of a competitive range
- Must be tailored to each offeror’s proposal
- Must be conducted by the Contracting Officer
- See FAR 15.306(d)

## Discussions: With Whom they Occur

- Discussions are held with each offeror in the competitive range
- Each offeror is not necessarily afforded the same amount of time
- Each offeror does not necessarily respond to the same issues
- The Government reserves the right to conduct an “efficient” competition among those submitting the most highly rated proposals by:
- Identifying the most highly rated proposals from among those submitted
- Select, from that group, the greatest number of proposals that will constitute an efficient competitive range (FAR 15.306(c))

## Discussions: With Whom they Occur - “Old Rules vs. New Rules”

- Old Rules: “When in doubt, keep them in” - competitive range was all those offerors who had a reasonable chance of award (inclusive standard)
- New Rules: “2 cuts beyond the old rules” (less inclusive standard)
- First cut: The most highly rated proposals
- Second cut: The greatest number of proposals from the first cut that constitute an efficient competitive range
- The second cut is optional (FAR 15.306(c))

## Discussions: Scope and Extent

- CO makes judgment as to what shall be discussed with each offeror.
**Deficiencies**: a material failure fo a proposal to meet a requirement or a combination of significant weaknesses which increases the risk of unsuccessful performance to an unacceptable level
**Weaknesses**: a flaw in the proposal that increases the risk of unsuccessful performance
**Other aspects of a proposal**:
- Cost
- Price
- Technical approach
- Any terms and conditions which, in the opinion of the CO, could be altered or explained to enhance materially the offeror’s potential for award (FAR 15.306(d))

## Discussions: Special Circumstances

*Where a solicitation provided that evaluation credit would be given for technical solutions exceeding any mandatory minimums*, the CO may:
- Conduct discussions for increased performance beyond any mandatory minimums
- Suggest to offerors that have exceeded mandatory minimums, *in ways that are not integral to the design*, that their proposals would be more competitive if the excesses were removed and the offeror’s price was decreased (FAR 15.306(d))

## Discussions: Rejecting Proposals Included in the Competitive Range

- Refers to offerors no longer being considered for award because of information that surfaced or became known during discussions
- The CO may eliminate the offeror from the competitive range and so inform the offeror
- This elimination may occur
- Whether or not all material aspects of the offeror’s proposal have been discussed, or;
- Whether or not the offeror has been afforded an opportunity to submit a proposal revision (FAR 15.306(d)(4))

## Discussions: Rejecting Proposals Included in the Competitive Range (cont’d)

- Remember:  the standard of inclusion is no longer “reasonable chance of award” but among “the most highly rated proposals”

## Discussions: Revised Proposals

- If an offeror is eliminated from the competitive range, no proposal revisions will be accepted or considered
- Revisions do occur:
- Pursuant to the CO’s request for or allowance of revisions to clarify and document understandings reached during discussions
- At the conclusion of discussions, pursuant to the CO’s request for final proposal revisions.  The request must advise offerors that revisions must be in writing and that the Government intends to make award without obtaining further revisions (FAR 15.307)

## LESSON G: AWARD PREPARATION

## PREPARING AWARDS

- Prior to issuing award, be sure to document the source selection decision.
- Link the source selection decision to the evaluation done in accordance with the solicitation factors and subfactors.
- Release the award document.

## LESSON H: PREAWARD AND POSTAWARDDEBRIEFING OF OFFERORS

## Preaward Notices to Unsuccessful Offerors

**Preaward notices of exclusion from the competitive range:**
- Offerors notified promptly in writing, including those otherwise eliminated from the competition.
- Notice specifies basis for determination and that a proposal will not be considered.
**Preaward notices for small business set-asides:**
- On completion of negotiations and determination of responsibility, but prior to award, offerors notified promptly, including the name of the apparent successful offeror.
- Government will not consider revised proposals, and no response required unless to challenge apparent successful offeror’s business size standard (unless award is urgent or apparent successful offeror is an 8(a) contractor.

## Postaward Notices to Unsuccessful Offerors

- Within three days after the date of contract award, the Contracting Officer:
- Provides written notification to each offeror in the competitive range but not selected for award or that had not been previously notified.
- Contents of notice (FAR 15.503(b)(1).
- On request, the contents of this notice must be sent to unsuccessful offerors that received a preaward notice of exclusion from the competitive range.