Source Selection
Issues
GAO Bid Protest Statistics 2016
Protests Filed – 2789 (+6%)
Merit Decisions - 616
Protests Sustained - 139 (22.5%)
Hearings – 27 (2.51%)
Ga
Unreasonable Technical Evaluations
● Key Personnel
● Disparate Evaluations
Unreasonable Past Performance Evaluations
● Relevance
● Affiliates
Ga
Unreasonable Cost & Pricing
● Cost Realism
● Costs Consistent with Technical Approach
Flawed Selection Decision
● Meaningful Evaluation and Document the
Cost/Technical Trade Off Rationale
Who can be Considered for Selection?
The On-Again, Off-Again,
Responsibility on Organizational
Conflicts of Interest
● Biased Ground Rules
● Unequal Access
● Impaired Objectivity
Preparing
Specifications or Work
Statements
FAR 9.505-2
Providing Evaluation
Services
FAR 9.505-3
The Contracting Officer’s
Responsibilities Towards
Organizational Conflicts of
Interest
FAR 9.504
FAR – Contracting Officer’s Responsibility
The Contracting Officer is directed to
– analyze acquisitions to identify potential OCIs early in
process (9.504(a)(1))
– avoid, neutralize, or mitigate significant potential
conflicts before contract award (9.504(a)(2))
– obtain advice of legal counsel, other specialists
(9.504(b))
“Each individual contracting situation should be
examined on the basis of its particular facts and the
nature of the proposed contract. The exercise of
common sense, good judgment, and sound discretion is
required in both the decision on whether a significant
potential conflict exists and, if it does, the development
of an appropriate means for resolving it.” FAR 9.505
FAR – Contracting Officer’s
Responsibility
• Prior to issuing a solicitation that might involve a
significant conflict, the Contracting Officer is to
recommend to head of contracting activity a course of
action for resolving OCI (9.504(c))
• In discharging these OCI requirements, Contracting
Officers are counseled to avoid unnecessary delays,
burdensome information requirements on potential
offerors, and excessive documentation (FAR 9.504(d))
• The Contracting Officer should document his or her
analysis and judgment only when there is a substantive
issue concerning a potential or actual conflict of interest
(FAR 9.504(d))
FAR – Contracting Officer’s
Responsibility
• Before withholding award [or taking other action
that disqualifies an offeror], notify contractor to
allow opportunity to respond (9.504(e))
• The Contracting Officer shall award the contract to
the apparent successful offeror, unless it is
determined that there is a conflict of interest that
cannot be avoided or mitigated. In that case, the
Contracting Officer shall inform the offeror; provide
the reasons for that determination; and allow the
offeror a reasonable opportunity to respond
(9.504(e))
FAR – Contracting Officer’s Responsibility
• If a conflict cannot be avoided or mitigated, the
Contracting Officer may seek a waiver of the OCI, if it is
in the best interests of the United States. (9.504(e))
• The agency head or designee (not below the head of
the contracting activity) may waive any general rule of
the FARr on OCIs by determining that a waiver in this
case would be in the Government’s interest. A request
for waiver is to be in writing, and set forth the extent
of the conflict.(9.503)
• The waiver request and decision becomes a part of the
contract file (9.504(e))
THE END OF LPTA?
The End of LPTA?
§813 National Defense Authorization Act for FY
2017
“LPTA has a clear, but limited place
in the source selection best value
continuum.” ASALT March 4, 2016
Memo
LPTA is not to be used “in
circumstances that would deny the
department the benefits of cost and
technical tradeoffs in the source
selection process.” – NDAA FY 2017
The Benefits of Cost Technical
Tradeoff
● Cost is not the deciding factor, but rather
strengths the Government is willing to pay for
- Strengths:
● Exceed contract requirements in a beneficial
manner
● Increase likelihood of success and mission
accomplishment
● Provide benefits the Government is willing to
pay for
The (Perceived) Downsides of LPTA
● Technical contractor personnel with
minimum qualifications and
experience
● Contractors cut quality and costs in
order to get the contract
● Large businesses at disadvantage,
and small businesses often had to
settle for a less qualified and
inadequately staffed workforce
who would work for the lower
wages that made the contractor
more price competitive for award
(but with very slight profit)
§813 National Defense Authorization Act for FY 2017
Situations that Warrant LPTA Criteria
● DoD can comprehensively and clearly
describe the minimum requirements
in terms of performance objectives,
and measures and standards to
determine acceptability.
●
DoD would recognize no (or minimal)
value from a proposal that exceeded
the minimum technical or
performance requirements.
§813 National Defense Authorization Act for FY 2017
Situations that Warrant LPTA Criteria
● The proposed technical approaches
will not require any (or much)
subjective judgement by the source
selection authorities.
● The source selection authority is
confident that the other-than-lowest
priced offers would not result in the
identification of factors that could
provide more value or benefit to the
Government.
§813 National Defense Authorization Act for FY 2017
Situations that Warrant LPTA Criteria
● The Contracting Officer provides a
written justification for the use of
the LPTA criteria in the contract
file.
● DoD determines that the lowest
price reflects full life cycle costs,
incl. maintenance and support.
§813 National Defense Authorization Act for FY 2017
Procurements that Cannot Apply the LPTA Criteria
● Contracts that predominantly seek
knowledge-based professional
services, such as IT, cybersecurity,
and SETA services, advanced
electronic testing, and audit or
audit readiness services.
● Contracts for personal protective
equipment.
§813 National Defense Authorization Act for FY 2017
Procurements that Cannot Apply the LPTA Criteria
● Contracts for knowledge-based
training, or logistics services in
contingency operations or other
operations outside the United
States, including Iraq and
Afghanistan.
Also: DoD is to issue an annual
report, for the next four years, on
the use of the LPTA criterion for
procurements in excess of $10M.
● The Patent Ambiguity Exception to
Contra Proferentem and the Rule of
Blue and Gold
● Straight answers to vendor
questions
● Amendments to Clarify
● Realistic Competitive
Ranges
● Meaningful Discussions
● Burdensome Cost and
Pricing Data
● Commercial Item
Determinations
● Smart Debriefings
Giving a better
technical
evaluation to
contractors that
offer more data
rights: seems
unfair!
Case Study: Applying the Stated Criteria
Bid Protest of Marquette Systems
“Best Value” RFQ for cardiographs
HP selected, although
more expensive, but
HP dial configuration
similar to Government’s
current equipment, and
therefore would require less train – up
time for Government personnel to operate
Case Study – The Boeing Tanker
Protest
The Air Force, in making the award
decision, did not assess the
relative merits of the proposals in
accordance with the evaluation
criteria identified in the
solicitation, which provided for a
relative order of importance for the
various technical requirements.
GAO Press Release on Sustaining
Boeing’s Protest of the tanker
procurement, 19 June 2008
Tradeoff Analysis
The Air Force’s use as a key
discriminator, that Northrop
Grumman exceeded a key
performance parameter objective on
aerial refueling to a greater degree
than Boeing, violated the RFP
provision that no consideration will
be provided for exceeding the
objective. GAO Press Release on
Sustaining Boeing’s Protest of the
tanker procurement, 19 June 2008
Tradeoff Analysis
The Air Force conducted misleading
and unequal discussions with
Boeing, advising that it had met the
standard, and then changing its
decision, but not re-opening
discussions with Boeing. GAO Press
Release on Sustaining Boeing’s
Protest of the tanker procurement,
19 June 2008
Tradeoff Analysis
The Air Force unreasonably
determined that Northrop
Grumman’s declination to support
the Air Force to achieve organic
depot level maintenance was an
“administrative oversight,” and not
a refusal to agree to material
solicitation requirement. GAO Press
Release on Sustaining Boeing’s
Protest of the tanker procurement,
19 June 2008