Competitive Processes in Government Contracting:  The FAR Part 15 Process Model and Process Inefficiency

By Vernon J. Edwards

April 2003

When planning a competitive acquisition, agency acquisition personnel must design a process for getting information about the alternatives, assessing each alternative, and comparing the alternatives in order to determine which is best. In developing their process they must take into account their objectives for process quality, schedule and costs. They must consider the attributes of a good decision, the time available to make it, and the human and technological resources (e.g., computers and decision support software) at their disposal. Presumably, they want to minimize their transaction costs by making the best decision they can in the shortest reasonable time and using no more of their agency's resources than absolutely necessary. They also should want to economize on the demands made on the competing firms, so as to not make government business unattractive to the best firms by making it too costly and time-consuming.

A review of protest decisions by the U.S. General Accounting Office (GAO) and the literature on government contracting suggests that some agencies fail to design efficient competitive processes because they follow a poor process model. That model has evolved over the course of 50 years in connection with source selections conducted under Federal Acquisition Regulation (FAR) Part 15, Contracting by Negotiation, and its predecessors.¹ I shall refer to this model as the FAR Part 15 Process Model.

The FAR Part 15 Process Model

The FAR has never prescribed a step-by-step process for conducting a source selection; instead, it has prescribed rules governing the design of source selection processes. The current rules in the FAR cover organizing for source selection (§ 15.303); preparing and issuing requests for proposals and amendments thereto (§§ 15.203, 15.204, 15.205, 15.206, 15.209 and 15.304); exchanging information with prospective and actual offerors (§§ 15.201, 15.306 and 15.307); submitting, receiving, handling, modifying and revising proposals (§§ 15.207 and 15.208); evaluating proposals (§ 15.305); and making the selection decision (§ 15.308). FAR § 15.100 expressly states that it describes only some of the processes and techniques that agencies may use to conduct a source selection.

Nevertheless, by the end of the 1950s a model process had emerged within the federal procurement bureaucracy that has been passed down to succeeding generations of acquisition personnel through word of mouth, on-the-job training, and classroom instruction.² The main steps of that process model are set forth in Table 1.

This process model has two key characteristics: (1) every competitor is required to submit a complete proposal at the outset of the competition which addresses all of the evaluation factors for award and (2) the agency conducts negotiations with more than one firm. The significance of these two characteristics lies in the effect that they have on the amount of information that a competitor must prepare and submit and that an agency must process in order to make a source selection decision, and on the time and resources required to prepare and process that information.

Soliciting Complete Proposals from All Competitors.  The first key characteristic of the FAR Part 15 Process Model is that all competitors must submit complete proposals at the outset of the competition. Suppose that an agency plans to select the contractor on the basis of (a) technical approach, (b) management plan, (c) experience, (d) past performance, (e) small, small disadvantaged, and woman-owned small businesses subcontracting plan, and (f) price. Under the FAR Part 15 Process Model the agency will require all the competitors to submit information pertinent to all of those factors at the outset. It will require every competitor to submit (1) a technical proposal, (2) a management proposal, (3) information about its experience, (4) information about its past performance, (5) its plan for small, small disadvantaged, and women-owned small business subcontracting, and (6) prices and supporting price information. As a consequence of this approach, the evaluation panel must assess every competitor on the basis of all of that information.

As a general rule, the more information that an evaluation panel must process, the more time and/or personnel that it will need in order to process it, and the more information that the decisionmaker will have to consider when he or she compares the competitors to determine which is best. It is generally not too difficult to process complete proposal information received from two to five competitors, depending on the amount of information solicited, and this approach saves time by having complete proposals ready at hand for the evaluators at the outset of the competition and avoiding the need to pause while awaiting successive submissions. But it can be a challenge to process complete information from ten competitors. And the challenge can be great when an agency receives proposals from 15 or more competitors. In extreme cases, the challenge can even be overwhelming. Thus, in at least some cases, the process would be more efficient if agencies limited the amount of information that the competitors must submit initially, and thus the amount of information that the evaluators must process and the decisionmaker must consider, so long as the limitations are consistent with good decisionmaking practices. One way to do that is to limit the number of evaluation factors. Another way to do it is to apply the evaluation factors in phases in order to progressively narrow the competitive field, asking the competitors in each phase to submit only the information needed in that phase. In this way an agency could initially ask for limited information, eliminate some competitors on that basis, and carry fewer competitors into subsequent phases in which more detailed and voluminous information is obtained and processed. This type of phased evaluation process is sometimes referred to as "downselect" or "down-select."⁴

Negotiations with Multiple Competitors. Another source of information processing costs is conducting negotiations (discussions) with more than one firm. Although the FAR permits agencies to award contracts on the basis of initial offers without negotiations (discussions), agencies sometimes establish a competitive range consisting of more than one competitor, negotiate with them all, and then solicit competitive final proposal revisions from them.⁵ The evaluation panel must then evaluate those revisions and report their assessments to the decisionmaker.

FAR § 15.306(c)(1) states that when establishing a competitive range an agency must include "all of the most highly rated proposals." The more proposals included in the competitive range, the more information that the agency will have to process and the more time and resources will be used in the source selection process. In the explanatory statement that accompanied the Federal Register publication of the FAR Part 15 Rewrite, the FAR Council stated:

We also note that comments received from Government agencies indicate that award is nearly always made to one of the three most highly rated offerors in the competitive range... . The incidence of award to an offeror other than one of the three such proposals is so small that it does not support keeping any business, particularly a small business with limited bid and proposal resources, in a competition that the business has virtually no chance of winning.⁶

FAR § 15.306(c)(2) states that in the interests of efficiency agencies may include fewer than "all" of the most highly rated proposals in the competitive range if they include a notice of that possibility in the RFP. Agencies may also establish a competitive range that includes only one offeror.⁷ Historically, the GAO has been skeptical when an agency has established a competitive range consisting of only one offeror and has said that it will subject such decisions to close scrutiny if it receives a protest in that regard. However, there is evidence that it has backed away from that stance since the FAR Part 15 Rewrite took effect on January 1, 1998.⁸ In sum, the regulations provide plenty of latitude to keep the number in the competitive range small; it seems that there is little reason to include more than three in most circumstances.

Aside from the information processing costs associated with negotiating with more than one competitor, there is some evidence that negotiating with more than one firm during a source selection does not produce a true meeting of the minds. A government RFP is a very complicated business document. An RFP for a non-commercial item fixed-price contract in excess of $100,000 routinely contains more than 80 standard FAR clauses, and many specifications and statements of work are poorly written. Competitors must often read RFPs and prepare their proposals in haste and without an opportunity to sit down one-on-one with the government to go through the RFP to ensure a common understanding of the solicitation's terms. In order to reach a true meeting of the minds the parties should fully discuss all terms and conditions in an effort to ensure that they understand them in the same way.

However, contracting officers have long been cautious to the point of being non-communicative when negotiating with more than one firm, due largely to concerns about fairness and improper disclosure of proposal information, but perhaps also due to the pressures of time. The record of board and court decisions suggests that when conducting competitive procurements agencies do not always discuss the specification or statement of work and the contract clauses in sufficient detail to reach a true meeting of the minds. Negotiations are too often limited to "deficiencies" and "weaknesses" in proposals, apparently based on the assumption that the parties share a common understanding of other terms and conditions. All too often, it is only after contract award that the parties learn that they have different ideas about their respective rights and obligations.⁹ Thus, competitive negotiations are sometimes ineffective in producing a meeting of the minds. Although the FAR permits one-on-one negotiations between the government and the successful competitor after selection, but before award, such negotiations are not contemplated in the FAR Part 15 Process Model, and there is little evidence that agencies make much use of that technique to ensure that the parties really agree on the contract terms.¹⁰

The FAR Part 15 Process Model in Action

Having considered the two key characteristics of the FAR Part 15 Process Model — solicitation of complete proposals from every offeror at the outset of the competition and negotiation with multiple competitors — I will now consider three examples of the model in action in which it has resulted in competitive process inefficiencies. I will describe its application to a source selection under FAR Part 15, to a GSA multiple award schedule, and to an acquisition conducted under FAR Part 13, simplified acquisition procedures. I will also discuss its application when providing contractors under multiple award task order contracts a fair opportunity to be considered.

Competitive Negotiation (Source Selection) Under FAR Part 15. Consider the case of the Department of Commerce's 1999 procurement for the award of governmentwide acquisition contracts for its Commerce Information Technology Solutions program (COMMITS). That procurement was the subject of a protest that was sustained by the U.S. General Accounting Office.¹¹ The agency's solicitation described only three evaluation factors: (1) past performance, (2) team composition, and (3) price. Past performance was comprised of two subfactors, (a) quality recognition/certifications and (b) past performance management. The competitors were to present some of the information about the second subfactor, past performance management — described as the tools and techniques used in previous work and the results obtained — in a one-hour oral presentation. The RFP stated that the agency intended to give each competitor an opportunity to make an oral presentation.

The agency was surprised to receive more than 200 proposals, and so it decided to narrow the field by eliminating some on the basis of their competitiveness. Here is how the GAO described the winnowing process:

In performing this review, the SSEB chairs assigned letter ratings (from A+ to C-) under the two past performance subfactors and either a "+" or "-" under the team composition factor. Agency Report, exh. 4A, Memorandum for SSA concerning Clarification and Streamlining of Proposal Evaluation Guide and Processes 1 (May 28, 1999). No narrative explanations for these ratings were prepared, as was originally contemplated by the proposal evaluation guide. Id.; Agency's Post-Hearing Comments at 2. An initial screening matrix was prepared for each functional area that ranked offerors according to their relative ratings under the QRC subfactor; this document also noted each offeror's rating under the PPM subfactor and team composition factor and each offeror's average loaded hourly labor rate. Hearing exh. 1, Initial Screening Evaluation. The contracting officer reviewed the offerors' average loaded labor rates for realism and reasonableness; all of the offerors' average rates were determined to be reasonable. Declaration of Contracting Officer, Oct. 25, 1999, at 7; Agency's Post-Hearing Comments at 5.

For each functional area, the SSEB chairs recommended, based only upon the offerors' QRC subfactor ratings, a cut-off that would provide for a "sufficient, high-quality competition." Agency Report, exh. 8, Source Selection Report, 4.0. As an example, for the ISE functional area, the agency received 125 proposals and 25 proposals were rated as B+ or better under the QRC sub-factor. Hearing exh. 1, Initial Screening Evaluation. The SSEB chairs briefed the two SSAs (who were acting jointly) concerning the results of the initial screening and recommended to the SSAs that only those offerors that received a B+ or higher under the QRC subfactor be permitted to make an oral presentation. Although the SSEB chairs informed the SSAs of the significance of the letter ratings, there was no discussion of the specifics underlying each firm's rating. Hearing Testimony of SSEB Co-Chair. The SSAs agreed with the SSEB's recommendations. Id. No documentation was prepared memorializing the SSAs' consideration of, or decision to, limit the competition to those offers that were highest rated under the QRC subfactor. Id. Price was not considered in determining which offerors would be invited to make an oral presentation. Id.; Declaration of Contracting Officer, Oct. 25, 1999, at 5; Declaration of SSEB Co-Chair, Oct. 21, 1999, at 5.

Kathpal's and CHM's proposals under the ISE area received B ratings under the QRC subfactor, and, on that basis, the protesters were not invited to make oral presentations.

Footnotes omitted. The agency apparently applied this process to more than 200 proposals.

Kathpal and Computer & Hi-Tech Management protested that by using this procedure to eliminate them the agency had violated the terms of the RFP, because they had not been permitted to make oral presentations as promised. The GAO sustained the protest on the grounds that (a) the agency did not really evaluate price, which must be evaluated in every source selection and (b) the agency did not let the protesters make oral presentations, which it had promised it would do. The GAO said that the agency could have amended the RFP to permit phased evaluation and progressive narrowing of the field of competitors:

Once it realized how many firms were interested in competing, the agency could have elected to amend the solicitation to eliminate the oral presentation (and perhaps even one of the evaluation factors or subfactors) from the initial evaluation.

Thus, agencies may evaluate proposals in phases, and had the agency in this case planned for a phased evaluation and described that process in its RFP, or provided in the RFP for phased evaluation as a contingency procedure, its process would have been more efficient and there might not have been a protest or the protest would have been denied.¹² Two hundred proposals is, of course, an unusually large number, but even if the number is only 15 a well-designed, phased evaluation process that quickly reduces the number to between three and five would be more efficient than the FAR Part 15 Process Model, and save time and resources for both the government and some of the competitors. In many cases the number could almost certainly be reduced simply by comparing prices before considering any other factors and eliminating competitors whose prices are too high.¹³

It stands to reason that if agencies can economize on their own information processing costs by evaluating competitors in phases and progressively narrowing the field, then they can economize on competitors' bid and proposal costs by soliciting proposal information in phases, asking for detailed and voluminous information only from those competitors who survive the early phases of the winnowing process. In an acquisition in which an agency anticipates receiving a large number of proposals, phased solicitation and evaluation could make for a more efficient, less time-consuming and more economical competitive process.

Orders Against GSA Schedules. Whatever the advantages and disadvantages of the FAR Part 15 Process Model, it is understandable that agencies follow it when conducting source selections under FAR Part 15. What is remarkable and more difficult to understand is why they sometimes follow it when the rules in FAR Part 15 do not apply, e.g., when selecting a contractor for placement of an order against a GSA multiple award schedule and when conducting simplified acquisitions.

In the past few years, the GAO has decided several protests in which agencies followed the FAR Part 15 Process Model when using GSA multiple award schedules.¹⁴ FAR 8.404(b)(2) prescribes procedures for placing orders against GSA schedules in excess of the micro-purchase threshold ($2,500) but within the maximum order threshold. Agencies need only review catalogs or pricelists of at least three schedule contractors and select the one that they think represents the best value.¹⁵ At its website, the GSA prescribes special procedures for ordering services that require a statement of work.¹⁶ Those procedures are as follows:

(a) When ordering services, ordering offices shall-

(1) Prepare a Request (Request for Quote or other communication tool):

(i) A statement of work (a performance-based statement of work is preferred) that outlines, at a minimum, the work to be performed, location of work, period of performance, deliverable schedule, applicable standards, acceptance criteria, and any special requirements (i.e., security clearances, travel, special knowledge, etc.) should be prepared.

(ii) The request should include the statement of work and request the contractors to submit either a firm-fixed price or a ceiling price to provide the services outlined in the statement of work. A firm-fixed price order shall be requested, unless the ordering office makes a determination that it is not possible at the time of placing the order to estimate accurately the extent or duration of the work or to anticipate cost with any reasonable degree of confidence. When such a determination is made, a labor hour or time-and-materials quote may be requested. The firm-fixed price shall be based on the prices in the schedule contract and shall consider the mix of labor categories and level of effort required to perform the services described in the statement of work. The firm-fixed price of the order should also include any travel costs or other direct charges related to performance of the services ordered, unless the order provides for reimbursement of travel costs at the rates provided in the Federal Travel or Joint Travel Regulations. A ceiling price must be established for labor-hour and time-and-materials orders.

(iii) The request may ask the contractors, if necessary or appropriate, to submit a project plan for performing the task, and information on the contractor's experience and/or past performance performing similar tasks.

(iv) The request shall notify the contractors what basis will be used for selecting the contractor to receive the order. The notice shall include the basis for determining whether the contractors are technically qualified and provide an explanation regarding the intended use of any experience and/or past performance information in determining technical qualification of responses.

(2) Transmit the Request to Contractors: Based upon an initial evaluation of catalogs and price lists, the ordering office should identify the contractors that appear to offer the best value (considering the scope of services offered, pricing and other factors such as contractors' locations, as appropriate) and transmit the request as follows:

(i) The request shall be provided to at least three (3) contractors if the proposed order is estimated to exceed the micro-purchase threshold, but not exceed the maximum order threshold.

(ii) For proposed orders exceeding the maximum order threshold, the request shall be provided to an appropriate number of additional contractors that offer services that will meet the agency's needs.

(iii) In addition, the request shall be provided to any contractor who specifically requests a copy of the request for the proposed order.

(iv) Ordering offices should strive to minimize the contractors' costs associated with responding to requests for quotes for specific orders. Requests should be tailored to the minimum level necessary for adequate evaluation and selection for order placement. Oral presentations should be considered, when possible.

(3) Evaluate Responses and Select the Contractor to Receive the Order: After responses have been evaluated against the factors identified in the request, the order should be placed with the schedule contractor that represents the best value. (See FAR 8.404)

Those procedures do not require issuance of the RFQ to all schedule contractors, the establishment of a competitive range, or negotiations with all offerors within the competitive range — rules in FAR Part 15 which are not applicable to the selection of a contractor under a GSA multiple award schedule. Yet we know that agencies have sometimes followed the FAR Part 15 Process Model even when FAR Part 15 did not apply to the acquisition.

In its decision in the matter of Labat-Anderson, Inc., the GAO describes a procurement in which the Immigration and Naturalization Service (INS) sought to award a blanket purchase agreement for direct mail and records management services against GSA's multiple award schedule for document management services and products.¹⁷ The agency issued a request for quotations on June 26, 2000.¹⁸ The RFQ asked quoters to submit extensive technical and price information. The GAO describes the agency's scheme as follows:

Offerors were required to submit separate technical and price proposals for evaluation by a technical evaluation committee (TEC) and a business evaluation committee (BEC), respectively. Proposals were to clearly demonstrate the offeror's understanding of the overall and specific requirements of the proposed BPA, and any proposal in which material information requested was not furnished or where indirect or incomplete answers or information were provided might be considered unacceptable. RFQ ¶ 3.4. Offerors were required to submit both hard and electronic copies of their proposals. RFP ¶ 3.4.9.

Award was to be made to the offeror whose proposal represented the best value to the government based on three evaluation factors: technical approach, past performance, and price. The technical approach and past performance factors were equally weighted, and the two combined were significantly more important than price. RFQ ¶ 3.3. Of the two equally important technical approach subfactors, estimating model and management, only the former is at issue here.

Offerors were required to submit an estimating model that stated the underlying assumptions and constraints of their method for accomplishing the work under orders issued against the BPA, state the statistical basis for their estimates, and explain how they derived their technical approach from the analysis of the SOW and multiple years of workload data supplied by INS. Offerors were required to explain, illustrate, and explicate their model showing how the workload associated with each of the many forms processed under the program built to a model for the technical approach to operating each service center and the direct mail program as a whole; failure to do so was to be taken as a lack of understanding of the technical requirement and a deficient technical approach. RFQ ¶ 3.6.1.1. The RFQ listed specific criteria under which INS planned to evaluate this estimating model to assess the contractor's ability to provide the required services. RFQ ¶ 4.2.1. Under one criterion, offerors were required to show how using the INS estimates of forecasted demand and their own allocation and employment of labor assets using available data would result in an appropriately-sized workforce. Under another criterion, offerors were required to explain their methods and rationale for allocating labor among the functional areas (such as filing, mailroom operations, and data entry), given the forecasted demand. Id. INS's "estimates of forecasted demand" were based upon the 1999 historical workload data. Amendment No. 1 at Question and Answer (Q&A) Nos. 22, 29; RFQ Pricing Tables; RFQ attach. 9, reports C, D.

Offerors were required to submit price proposals that included three sections relevant to this protest. First, offerors were to provide an explanation of pricing that described all assumptions made and constraints affecting price, as well as the offeror's price proposal methodology. Second, offerors were to complete electronic pricing tables in accordance with specific instructions. These pricing tables, which were to serve as the mechanism by which INS ordered ser-vices under the BPA, were built upon INS's estimates of forecasted demand. Third, offerors were to provide a priced version of the estimating model developed in their technical proposals. The models submitted for both the technical and price proposals were required to be the same except that the model submitted for the technical proposal could not contain any labor rates or prices. Offerors were required to "electronically link" the priced estimating model to the pricing tables in a manner that would allow INS to see how their proposed price was determined. RFQ ¶ 3.6.3.3.

Price was to be evaluated for price reasonableness and cost realism, as well as total evaluated price. INS was to conduct its price analysis using one or more of the techniques specified in Federal Acquisition Regulation (FAR) § 15.404-1(b), and its cost realism analysis in accordance with FAR § 15.404-1(d). INS might also reject any proposal that was unreasonable or materially unbalanced as to prices for basic and follow-on year quantities. The RFQ defined an unbalanced proposal as one that incorporated prices significantly less than cost for some items and/or prices that are significantly overstated for other items. RFQ ¶ 4.2.3.

The agency established an evaluation board which included a source selection advisory council, a technical evaluation panel, and a business evaluation committee. It received four proposals on August 7, 2000, completed the initial evaluations on August 26, established a competitive range, conducted discussions with three offerors, and received final proposal revisions on October 3. It then eliminated another offeror and reopened discussions with the remaining two. It amended the RFQ and received another round of final proposal revisions on November 2, 2000. It awarded the BPA (an ordering agreement, not an order) against the GSA schedule contract on January 3, 2001, six months after it had issued its RFQ. The loser protested and the GAO denied the protest on April 16, 2001; the protest decision is 16 pages long.

In deciding the protest, the GAO made the following comments:

As a preliminary matter, the RFQ stated that INS intended to issue a BPA against the vendor's GSA FSS contract. Accordingly, the provisions of FAR Subpart 8.4 apply here. Those provisions anticipate that agencies will review vendors' federal supply schedules and place an order directly with the schedule contractor that can provide the supplies or services that represent the best value and meet the government's needs. FAR § 8.404(b)(2); Digital Sys. Group, Inc., B-286931, B-286931.2, Mar. 7, 2001, 2001 CPD ¶ __ at 6. Where, as here, the agency intends to use the vendors' responses as the basis of a detailed technical evaluation and price/technical tradeoff, it may elect, as INS did here, to use an approach that is like a competition in a negotiated procurement. Where an agency takes such an approach, and a protest is filed, we will review the agency's actions to ensure that the evaluation was reasonable and consistent with the terms of the solicitation. COMARK Fed. Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD ¶ 34 at 4-5. This RFQ specifically stated that the source evaluation was to be conducted and selection made in accordance with the guidelines set forth in the FAR, and set forth specific procedures for the evaluation of proposals. Accordingly, while the provisions of FAR Part 15, which govern contracting by negotiation, do not directly apply, Computer Prods., Inc., B-284702, May 24, 2000, 2000 CPD ¶ 95 at 4, we analyze Labat's contentions by the standards applied to negotiated procurements. Digital Sys. Group, Inc., supra.

Footnote omitted.

When ordering under a GSA schedule, why follow the FAR Part 15 Process Model, and thus submit to judgment under the case law appertaining thereto, when the FAR and the GSA permit the use of simpler competitive procedures? Why issue a request for quotations which requires that all competitors prepare extensive technical and price proposals? Why establish a complex evaluation organization? Why determine a competitive range? Why conduct two rounds of discussions and final proposal revisions? Why take six months to award an ordering agreement? Contracts were already established and full and open competition had already been obtained.¹⁹ It was just a matter of choosing from among the contractors. Why not, instead, just issue a statement of work, ask for quotes and experience and past performance information, pick a contractor, and then negotiate the terms of the BPA one-on-one, including final pricing formulas? One can find several cases like Labat-Anderson among the decisions of the GAO.

Simplified Acquisitions. Some agencies follow the FAR Part 15 Process Model even when conducting simplified acquisitions. Agencies can use the simplified acquisition procedures described in FAR Part 13 to award contracts valued at up to $100,000, and up to $5 million for contracts for commercial items. Yet there are several cases on record of agencies using the FAR Part 15 Process Model to conduct such procurements.²⁰

In its protest decision in the matter of Finlen Complex, Inc., the GAO describes an Army procurement of meals, lodging and transportation for military service applicants coming to the military entrance processing station (MEPS) in Butte, Montana.²¹ The Army wanted to establish a requirements contract with a local hotel to obtain those services. Since the procurement was for a commercial item valued at less than $5 million, the Army decided to use simplified acquisition procedures as permitted by FAR § 13.500(a).

The contracting officer issued a request for proposals, which the GAO described as follows:

The RFP here — issued to implement a procurement described on the solicitation's cover sheet as a "commercial acquisition, using simplified acquisition procedures" — anticipated award of a fixed-price, indefinite-quantity requirements contract, for a base period followed by four 1-year options, to the offeror whose proposal was considered most advantageous to the government. RFP at 28. The RFP advised that offers would "be evaluated on facility quality, food and transportation proposal, facility location, quality control, past performance and price factors." Id. The RFP also advised that the "technical/quality factors [would be] more important than cost or price." Id. Otherwise, the RFP was silent on the relative weight of the non-price evaluation factors. The RFP was also silent on the role in the selection decision of any non-price evaluation factor other than past performance. As for the role of past performance, the solicitation set forth considerable detail, including how the agency would use the past performance assessment, and what it would consider. (Although not disclosed to potential offerors, the relative weights set for this procurement were: facility quality, 30 percent; food and transportation, 25 percent; facility location, 20 percent; quality control, 20 percent; and past performance, 5 percent. Agency Report (AR), Tab G.)

The agency received proposals from six hotels. It established a three member team, which evaluated the proposals and wrote 85 pages of notes and a consensus report. The contracting officer's representative then wrote a decision document for the contracting officer's signature. The incumbent contractor protested and the GAO sustained the protest.

The protester argued that the selection decision was unfair because the solicitation was misleading about the relative importance of the evaluation factors, making past performance seem much more important than it really was. The Army countered by saying that the RFP was silent about the relative importance of the factors and that FAR §§ 12.602(a) and 13.106-1(a) say that agencies are not required to disclose the relative importance of evaluation factors in acquisitions of commercial items when using simplified acquisition procedures. The GAO sustained the protest anyway, saying:

With respect to the Army's contention that since this solicitation, on its face, is identified as a commercial item procurement using simplified acquisition procedures, no further analysis is needed, we disagree. We look to the substance of an agency's actions, rather than the form. In our view, the labeling of a procurement as "simplified" does not absolve the agency from its obligation to treat vendors fairly. See COMARK Fed. Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD ¶ 34 at 4-5 (agency's use of a negotiated procurement approach, rather than a simple Federal Supply Schedule purchase, triggered requirement to provide for a fair and equitable competition).

While there is no dispute here that the procurement of meals and locally-available hotel rooms for MEPS applicants appears to fall squarely within the reach of a "commercial item," as that term is defined at FAR § 2.101, there is little about the procedures used in this procurement that can reasonably be called simplified. For example, the agency elected to use a request for proposal format that requires the commercial offerors here--hotels, specifically--to prepare proposals addressing five non-price evaluation factors, including one factor, quality control, for which offerors had to develop and submit a unique quality control plan requiring contracting officer approval of plan changes throughout the life of the contract. [FN3] Upon receipt of offers, agency personnel conducted a full-scale evaluation, inspected offerors' premises, developed consensus scores, and made a written selection recommendation to the MEPS commander, who, in turn, recommended a selection decision to the contracting officer, who, in turn, made and documented the selection.

Despite the "simplified" label, this procurement is very similar to any other negotiated acquisition conducted under the rules set forth in FAR part 15. Those rules require that when offerors are asked to prepare detailed proposals, those offerors must be advised of the weight of all factors and significant subfactors that will affect the contract award. FAR § 15.304(d). When our Office asked the Army to address why it would want to withhold this basic information from offerors preparing proposals, the agency answered "that revealing the relative importance of factors may result in offerors skewing their proposals to the more important factors." Agency Supp. Report at 7. In addition, the Army argued that revealing the relative weight of factors in the solicitation would hinder the agency's ability to change the weight of those factors during the course of its evaluation. Id. In our view, neither of these considerations is appropriate under the circumstances of this, or any other, procurement, nor are they advisable for the integrity of the public procurement process.

We recognize that CICA exempts solicitations in procurements using simplified procedures from the requirement that the relative importance of evaluation factors be disclosed. 10 U.S.C. § 2305(a)(2). Moreover, we are sensitive to the fact that the thrust of FAR parts 12 and 13 is to avoid the use of procedures that constrict and complicate the acquisition process, and that FAR §§ 12.602(a) and 13.106-1(a)(2) do not, on their face, limit a contracting officer's discretion to disclose, or not disclose, the relative weight of evaluation criteria in a commercial item procurement conducted using simplified procedures. Nonetheless, basic principles of fair play are a touchstone of the federal procurement system, and those principles bound even broad grants of agency discretion. See Intellectual Properties, Inc., supra... .

Here, where the agency required the commercial offerors to prepare detailed proposals addressing unique government requirements, withholding the relative weight of evaluation factors denied the offerors one of the basic tools used to develop the written, detailed proposals called for in the solicitation.

In short, calling an acquisition "simplified" does not make it so; it is not what you say you are doing that counts, it is what you actually do. Why did the Army prepare and issue an RFP, require competing hotels to prepare and submit written proposals, establish an evaluation board, and have that board prepare 85 pages of notes and an evaluation report? None of that is required by FAR Part 13.

A search of an American Automobile Club (AAA) website yielded a list of ten hotels in Butte, Montana. Why not have the MEPS commander prepare a checklist based on its requirements for food, lodging and transportation and then have one or two members of the detachment visit all ten hotels in Butte and complete a checklist for each? This could be done in one or two days. Why not then have the MEPS commander send to the contracting officer the names of three hotels that meet the MEPS's needs and with which they would be willing to do business? The contracting officer could then contact the three hotel managers, fax or email a copy of the RFQ to each of them, and ask them to fax or email price quotes. Based on the price quotes, the contracting officer, in consultation with the MEPS commander, could pick the hotel that represents the best value and negotiate an agreement on contract terms and conditions. The entire contractor selection process and negotiation could have been completed in a week or two.

The "Fair Opportunity" Process Under Multiple Award Delivery and Task Order Contracts. FAR § 16.505(b)(1) requires that when placing orders against multiple award delivery and task order contracts, agencies must provide each awardee a "fair opportunity to be considered" for each order in excess of $2,500. FAR § 16.505(b)(1)(ii) expressly states that the source selection procedures in FAR Subpart 15.3 do not apply to this process.²² The fair opportunity process is not subject to protest, so there are no GAO decisions which illustrate the use of the FAR Part 15 Process Model therein. Nevertheless, there is considerable anecdotal and documentary evidence that some agencies have been conducting what are essentially mini-source selections when giving awardees a fair opportunity. Some industry associations have complained about the bid and proposal costs associated with such processes.²³ And some agencies have published formal guidance for providing a fair opportunity process which reflects the FAR Part 15 Process Model. See, for example, the guidance issued by the National Institutes of Health, Information Technology Acquisition and Assessment Center: Chief Information Officer-Solutions and Partners 2 Innovations (CIO-SP2i) Task Order Guidelines (March 2001).²⁴ That guidance provides for the solicitation of complete task order proposals from all awardees and even "discussions" with multiple awardees prior to the award of the task order.

Again, the question must be asked: Why follow the FAR Part 15 Process Model when the FAR permits the use of a much simpler and more efficient process? Why ask for complete proposals from all awardees when FAR § 16.505(b)(1) does not require that this be done? And why conduct discussions with more than one contractor? Surely, there must be a simpler way to choose a contractor from among firms that have already been evaluated and awarded a contract, a way that is less costly and time-consuming for both the government and the contractors.

Some Best Practices in Competitive Process Design

One of an acquisition team's most important tasks is designing efficient competitive processes. While the FAR Part 15 Process Model is suitable for many acquisitions that fall under FAR Part 15, it is a cumbersome, time-consuming and costly procedure to use when there are numerous competitors, and an unnecessarily complex procedure to use when ordering from GSA schedules, making simplified acquisitions, or giving offerors a fair opportunity to be considered under multiple-award deliver and task order contracts. Not even the new DOD procedures for ordering services under GSA schedules and task order contracts require contracting officers to follow the FAR Part 15 Process Model.²⁵

As indicated by the GAO's Kathpal decision, even when conducting a FAR Part 15 source selection there is no need to require complete proposal information from every competitor at the outset or to evaluate every offeror based on every evaluation factor. Agencies may solicit proposal information and evaluate the competitors in phases, progressively narrowing the competitive field based on limited information and obtaining detailed and voluminous information from only a few.

Acquisition personnel should design their competitive processes to comply with statute and regulation, to yield good decisions, and to economize on agency transaction costs and competitor bid and proposal costs. Acquisition personnel should not follow the FAR Part 15 Process Model without first considering alternative processes; instead, when appropriate, they should innovate to develop more efficient processes. In that regard, consider the following guiding principle of the Federal Acquisition System, as set forth in FAR § 1.102-4(e):

The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.

Some best practices in competitive process design include the following:

• Limit the number of evaluation factors. It is the number of evaluation factors that determines the amount of information that must be obtained from competitors and processed by the government in order to reach a decision. Therefore, use no more evaluation factors than absolutely necessary and only those factors on which the differences among offerors are likely to be more than trivial.²⁶
   
• Limit the amount of proposal information required from competitors. As a general rule, and especially when acquiring services, do not make offerors write technical or management expositions (narratives) describing how they will do the work or how they will organize, or specially-prepared quality assurance and safety plans, etc. Such writings are time-consuming and costly to prepare and to evaluate, but they do not necessarily demonstrate a firm's ability to perform, and usually are not binding in any meaningful sense. Moreover, incorporating such writings into a contract is inconsistent with performance-based service contracting policy. If agency technical personnel want to obtain first-hand insights into how well the competitors understand the work, require oral presentations instead of written technical or management proposals.²⁷
   
• Use the FAR Part 15 Process Model in source selections only when it is most effective. When conducting source selections under FAR Part 15, use the FAR Part 15 Process Model when five or fewer proposals are expected and when obtaining complete proposals from all offerors at the outset of the competition will save time.
   
• Consider phased submission of information and proposal evaluation. When conducting source selections under FAR Part 15, and when there is a realistic likelihood of receiving more than five proposals, consider soliciting proposal information and evaluating proposals in phases. Alternatively, consider planning to use phased evaluation as a contingency procedure.²⁸
   
• Do not follow the FAR Part 15 Process Model when ordering from GSA schedules. When using GSA's special ordering procedures for services that require a statement of work, do not follow the FAR Part 15 Process Model and do not use FAR Part 15 terminology (e.g., "competitive range" or "discussions") or refer to FAR Part 15 in the RFQ. Non-Defense agencies should conduct market research, select at least three contractors to solicit based on experience, past performance and perhaps an informal interview, provide those firms with a statement of work by fax or email and ask for price quotes, then choose one firm with which to negotiate the terms of the order or blanket purchase agreement. Defense agencies complying with DFARS § 208.404-70 and expecting a large number of responses to their "fair notice of intent" should request limited information (experience, past performance and price quote) at the outset of the competition and progressively narrow the competitive field before asking for more detailed proposal information. Except in unusual circumstances, pick one contractor and then negotiate the details of the order or blanket purchase agreement one-on-one; do not establish a competitive range, negotiate with more than one firm at a time, or solicit revised proposals from more than one competitor.
   
• Do not follow the FAR Part 15 Process Model when making simplified acquisitions. When using simplified acquisition procedures to buy complex supplies or services worth in excess of $25,000 and for which a synopsis must be published, and if planning to ask for more information than just a price quote, either: (a) select one firm for one-on-one negotiations based on experience, past performance and a price quote and then negotiate to agreement on details, or (b) narrow the competitive field of competitors on the basis of experience, past performance and a price quote before asking for more detailed proposal information, providing a specification or statement of work and clauses for price quote development by fax or email. Do not use FAR Part 15 terminology or refer to FAR Part 15 in the RFQ. Do not establish a competitive range, negotiate with more than one firm at a time, or solicit revised quotes or offers from more than one competitor.
   
• Do not follow the FAR Part 15 Process Model when giving contractors under a multiple award delivery or task order contract a fair opportunity to be considered. Maintain a dossier on each contractor reflecting its performance under task orders and any special qualifications that it may have demonstrated during performance. When the time comes to issue an order, send a draft of the order to each contractor and ask for a price quotation. Choose one contractor for one-on-one negotiations based on its past performance, its price quote and, if appropriate, its special qualifications. Negotiate the details of the order with that contractor. If you cannot reach a satisfactory agreement, then go back and choose one of the other contractors for negotiation. Do not solicit complete proposals from every contractor, establish a competitive range, negotiate with more than one contractor at a time, or solicit revised quotes or offers from more than one contractor.

Our government is heavily dependent upon contractors to do work that is not inherently governmental, and it is going to become even more so in the future. This means that effective acquisition management is crucial to good government. In turn, the design of efficient competitive processes is essential to effective acquisition management, especially in this era of urgent needs and ever more limited staff resources. While the FAR Part 15 Process Model works well in many circumstances, it is not always the most efficient process and thus does not always reflect best practice. Acquisition professionals must innovate when designing competitive processes in order to economize on government transaction costs and contractor bid and proposal costs and obtain best value efficiently and within a reasonable amount of time.

¹   The FAR took effect on April 1, 1984. Before the FAR, the rules for "procurement by negotiation" were in the Defense Acquisition Regulation, Section III, and the Federal Procurement Regulation, Section III.  (Back)
²  The process at its most elaborate is described in considerable detail in TFX Contract Investigation, Hearings before the Permanent Subcommittee on Investigations, Committee on Government Operations, United States Senate, 88th Congress, First Session, Part 1 (1963). See, especially, the testimony of Col. Charles A. Gayle and Mr. Robert Emmett Dunne, pp. 41-80. See, too, the description of “system source selection” in: Art, R.J., The TFX Decision: McNamara and the Military (Boston: Little, Brown & Company, 1968), pp. 56-62.  (Back)
³  Before the FAR Part 15 Rewrite took effect on January 1, 1998, the rule for establishing the competitive range had been to include all offerors that had a reasonable chance of being selected for award and those whose chances were in doubt. At present, the rule in FAR § 15.306(c)(1) generally requires inclusion of “all of the most highly rated proposals.”  (Back)
⁴  See the definition in Nash, R. et al., The Government Contracts Reference Book, 2d ed. (Washington, D.C.: The George Washington University Law School, 1998), p. 200; “Innovative Procurement Procedures: The Nuclear Regulatory Commission’s Test Program,” in The Nash & Cibinic Report, February 2000, 14 N&CR 9; and “Postscript: Innovative Procurement Procedures,” in The Nash & Cibinic Report, October 2000, 14 N&CR 53. See: Edwards, V., Source Selection Answer Book (Vienna, VA: Management Concepts, 2000), pp. 215 - 219, for a discussion of the distinction between source selection downselect and programmatic downselect.  (Back)
⁵  Most RFPs include the boilerplate language in FAR § 52.215-1 to the effect that the agency intends to award without discussions. I do not know of any source of statistics for how often the government actually does award without discussions.  (Back)
⁶  62 Fed. Reg. 51224, 51226 and 51228 (1977).  (Back)
⁷  See, e.g.: SOS Interpreting, Ltd., B-287505, June 12, 2001.  (Back)
⁸  See: “Competitive Range of One: Is there special scrutiny,” in The Nash & Cibinic Report, November 1999, 13 N&CR ¶ 61.  (Back)
⁹  For a classic example of a “competitively negotiated” procurement failing to produce a meeting of the minds, see: Omni Corporation v. U.S., 41 Fed. Cl. 585 (1998). (Back)
¹⁰  The Department of Defense FAR Supplement (DFARS) formerly had included “Four-Step’ procedures which expressly allowed for one-on-one negotiations after selection, but before award. However, on October 14, 1998, after the publication of the FAR Part 15 Rewrite, DOD announced that it was dropping those procedures from the DFARS because “FAR 15.101, Best value continuum, clearly allows such source selection procedures.” See: 63 Fed. Reg. 55040 (1998).  (Back)
¹¹  Kathpal Technologies, Inc.; Computer & Hi-Tech Management, Inc., B-283137.3; B-283137.4; B-283137.5; B-283137.6, December 30, 1999.  (Back)
¹²  See: “A Contingency Procedure for Source Selection,” in The Nash & Cibinic Report, May 2000, 14 N&CR 25. It appears from the Dept. of Commerce’s COMMITS website that 56 contracts were awarded in the COMMITS source selection. Both of the protesters are included among the vendors.  (Back)
¹³  This was actually done by a contracting officer with the U.S. Customs Service in a 1999 procurement, with the result that the number of offerors was reduced from more than 30 to less than 15 in a single day on the basis of price. There was no protest, and several of the offerors who were eliminated thanked the contracting office for saving their time and money. See: “A Contingency Procedure for Source Selection,” in The Nash & Cibinic Report, May 2000, 14 N&CR ¶ 25.  (Back)
¹⁴  See, e.g.: OMNIPLEX World Services Corporation, B-291105, November 6, 2002; KPMG Consulting LLP, B-290716, September 23, 2002; Avalon Integrated Services Corporation, B-290185, July 1, 2002 ; Uniband, Inc., B-289305, February 8, 2002; OSI Collection Services, Inc.; and C. B. Accounts, Inc., B-286597.3, June 12, 2001.  (Back)
¹⁵  Defense agencies may no longer follow the procedures in FAR § 8.404(b), but must follow special procedures in Defense FAR Supplement § 208.404-70, which requires them to solicit offers either from a sufficient number of GSA schedule contractors to obtain three offers or all GSA schedule contractors on a schedule.  (Back)
¹⁶  http://www.gsa.gov/Portal/content/offerings_content.jsp?contentOID=116992&contentType=1004  (Back)
¹⁷  Labat-Anderson, Inc., B-287081; B-287081.2; B-287081.3, April 16, 2001. See, too, Labat-Anderson, Inc. v. United States, 50 Fed. Cl. 99 (2001).  (Back)
¹⁸  For information about the use of BPAs with GSA schedules, go to: http://www.gsa.gov/Portal/content/offerings_content.jsp?contentOID=116431&contentType=1004  (Back)
¹⁹  FAR §§ 6.102(d)(3) and 8.404(a)(1).  (Back)
²⁰  See, e.g.: Kathryn Huddleston and Associates, Ltd., B-289453, March 11, 2002 and Universal Building Maintenance, Inc., B-282456, July 15, 1999.  (Back)
²¹  Finlen Complex, Inc., B-288280, October 10, 2001; see the commentary on Finlen in “Complicating Simplified Acquisition Procedures: A New Twist,” in The Nash & Cibinic Report, January 2002, 16 N&CR ¶ 2.  (Back)
²²  See, too: Defense FAR Supplement § 216.505-70 for special rules applicable to Defense agencies. That regulation also expressly states that FAR Subpart 15.3 does not apply.  (Back)
²³  See: Professional Services Council, Issue Paper: Task Order Contracts, in which the following comment appears: “Frequently, the government requires extensive proposals for individual delivery/task orders, rather than the simple, low cost, process envisioned by the legislative drafters and regulatory designers. Some agencies require 50% or more of the effort of a full proposal. This adds costs and administrative burden for the contractor and the government.” The paper may be found at the Council’s website: http://www.pscouncil.org/westand/task_order.htm. See, too: Carlson, T., “The Tyranny of Multiple-Award Indefinite Delivery/Indefinite Quantity Contracts,” available at http://www.tacarlson.com/documents/tyranny_of_contracts.pdf  (Back)
²⁴  Available at: http://www.lmsi-nw.com/cio-sp2/task_guidelines/CIOSP2Guidelines.htm#_Toc512250729  (Back)
²⁵  See DFARS §§ 208.404-70 and 216.505-70.  (Back)
²⁶  See: Edwards, V., Source Selection Answer Book (Vienna, VA: Management Concepts, 2000), pp. 79-83; “Streamlining Source Selection by Improving the Quality of Evaluation Factors,” in The Nash & Cibinic Report, October 1994, 8 N&CR ¶ 10; “Postscript: Streamlining Source Selection by Improving the Quality of Evaluation Factors,” in The Nash & Cibinic Report, December 1994, 8 N&CR ¶ 72; and, “Selecting the Evaluation Factors in Best Value Source Selection,” in The Nash & Cibinic Report, June 1996, 10 N&CR ¶ 32.  (Back)
²⁷  See: “The Status of Technical, Management, and Cost Proposals: Are They Part of a Negotiated Contract?” in The Nash & Cibinic Report, July 1993, 7 N&CR ¶ 37; “The Technical Proposal: Is it Fish or Fowl?” in The Nash & Cibinic Report, May 1997, 11 N&CR ¶ 22; “Postscript: The Technical Proposal,” in The Nash & Cibinic Report, January 1998, 12 N&CR ¶ 4; “Postscript II: The Technical Proposal,” in The Nash & Cibinic Report, May 1998, 12 N&CR ¶ 28; “Postscript III: The Technical Proposal,” in The Nash & Cibinic Report, August 1998, 12 N&CR ¶ 45; and Edwards, V., Source Selection Answer Book (Vienna, VA: Management Concepts, 2000) pp. 230-238.  (Back)
²⁸  See: “A Contingency Procedure for Source Selection,” in The Nash & Cibinic Report, May 2000, 14 N&CR ¶ 25, and Edwards, V., Source Selection Answer Book (Vienna, VA: Management Concepts, 2000) pp. 215-219 and 226-229.  (Back)