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By
FormerCO4AF on Wednesday, February
12, 2003 - 03:40 pm:
Is it just me or does anyone else have a concern with
the GAO ruling here?
http://www.gao.gov/decisions/bidpro/2914023.htm
This ruling sounds to me like now any SB contractor with a
performance rating less than, lets say a large firm that costs
more, can now protest under Responsibility challenge.
In my opinion (for what its worth) Past Performance is not a
responsibility check, rather a system which allows you to
partner with those firms that, when compared with their peers,
are the best performers.
Maybe in this instance they are calling it responsibility since
there was only one offeror? Sounds like someone didn't conduct
enough market research to ensure adequate competition
availability. Thats a key step in competative 8(a)'s restricted
to one region.
By
joel hoffman on Wednesday, February
12, 2003 - 04:16 pm:
I don't have a problem with the ruling. The Government
declined to award to an 8(a) firm because it rated the firm's
"past performance" as marginal/lack of confidence, due to size
of project experience and other relevancy issues. It is clear
that the Government eliminated the firm from consideration for
an evaluation factor, which was a "responsibility" type factor.
It was required to refer the matter to the SBA for a competency
determination. That is a settled principle.
Although the factor was set up using "comparative criteria",
there was only one offeror. The rating then became a defacto
pass/fail criteria.
As an aside, I think that the Government screwed up the
evaluation criteria, because it mixed "past performance" and
"experience" evaluation criteria into one factor called "past
performance".
The Government's primary concern in refusing to award the
contract was really a lack of relevant experience - not the
quality of the offeror's experience, which is what "past
performance" is actually defined as in FAR.
The GAO has previously held that the Government can establish
minimum "experience" criteria, (without having to refer an
unacceptable small business firm to the GAO for a determination
of competency). When the Government establishes a mimimum
experience factor, generally, the specific minimum experience
requirement is spelled out in the evaluation criteria in the
RFP.
Here, I think the Government used "comparative" criteria for
both aspects (experience and past performance), without setting
a minimum experience requirement. Then they said the offeror
didn't have enough relevant experience.
They deserved to lose this protest for 1) not separating past
performance from experience 2) using poor evaluation criteria
and 3) not going to the SBA once they boxed themselves in with
their rating criteria. happy sails! joel
By
Eric Ottinger on Wednesday,
February 12, 2003 - 04:43 pm:
Joel,
I can't find your case. Could you give us a cite?
Eric
By
joel hoffman on Wednesday, February
12, 2003 - 05:14 pm:
Eric, it's the one cited above. It was just published.
Are you talking about the GAO decisions that confirm that the
Government can establish mimimum "experience" criteria? I've
read a couple of such decisions in the last year or two. One
involved my old office, the Mobile District, Corps of Engineers
on a design-build project at an Air Base in Florida. I don't
remember the cite, but it was in 2002. I'll call my associates
in the morning to find the name of the company. happy sails!
joel
By
joel hoffman on Wednesday, February
12, 2003 - 05:23 pm:
Eric, on some projects, Mobile District has started
using streamlined evaluation criteria, which include a minimum
experience factor. The offeror in the specific protest
complained that this amounts to a defacto debarment for firms
that don't meet the rigorous minimum experience standards. The
GAO said the Government has some discretion, if it legitimately
determines that some minimum relevant experience is necessary. I
have some personal reservations about their minimums, but the
GAO was pretty 'liberal' in their decision. happy sails! joel
By
Eric Ottinger on Wednesday,
February 12, 2003 - 05:28 pm:
Joel,
Your "minimum" corporate experience factor sounds like a
"definitive responsibility factor" to me. I'm confused.
Eric
By
FormerCO4AF on Wednesday, February
12, 2003 - 06:00 pm:
I don't think the minimum experience has much to do
with responsibility. Minimum experience should be used to make a
definitive pool of peers in which to rate contractors past
performance.
Responsibility is more of a check of the contractors current
abilities and status. There's a lot of things that can happen to
a corporation after past projects that would effect
responisbility standing for a new award.
Joel, I agree the agency screwed up on this one.
1.My opinion is it should never have received a rating. The
protest showed there were three checks. First was conformance to
RFP. If the contractor submits other than whats asked for its
determined non-responsive and therefore not available for the
evaluation team to look at and rate.
2. It's apparent the agency either did not conduct effective
market research or has a bad SBA office and relied on poor data
for contractor resources. If your going to do a competative 8(a)
solicitation and restrict it to a specific region, you better be
VERY comfortable that you will receive adequate competition.
I just don't want to see the Past Performance process more
convoluted to where if you rate a lower priced small business
below a higher priced large business that you have to then do a
COC with the SBA. I like to be in a position where I can partner
more with the exceptional performers (at a reasonable price)
rather than having to go with the ok performer just because they
are lowest price. I think its good for the industry. And I'm
definitely not saying small businesses or 8(a)'s are only OK
performers. I am a huge supporter of the program. While in the
AF conducting accident recovery operations it was normally the
small businesses that opened at midnight and provided
unquestionable support when the large business wouldn't help.
By
Cherokee21 on Wednesday, February
12, 2003 - 08:01 pm:
Though not on point with the above decision, your
discussion on minimum corporate experience relates to a scenario
that I have been looking at recently. What would be your take on
a newly formed 8(a) that entered the program based on a waiver
that they were not required to have a two year business history
based on the qualifications of the owner and principals? If the
owner and principals years of experience far exceeded managing
projects of greater size than the above, would this require a
different consideration of what constitutes minimum experience?
By
joel hoffman on Wednesday, February
12, 2003 - 08:45 pm:
Cherokee21, In the even that a firm cannot directly
show relevant corporate experience, we can and should take into
account relevant experience of key personnel under the corporate
experience evaluation factor(the requirement is consistent with
GAO protest decisions). happy sails! joel
By
joel hoffman on Wednesday, February
12, 2003 - 08:59 pm:
FormerCO4AF, I don't think this GAO opinion is really
anything new. The GAO has maintained consistency in allowing you
to give consideration to a higher rated performer. Here, a key
distinction is that there was only one offeror.
The problem ensues when you effectively disqualify a small
business under the past performance factor. It is proper to use
comparative ratings between firms, avoiding eliminating a small
business via an "unqualified" rating. If you disqualify the
firm, you must consult with the SBA. Of course, if the firm is
the only competitor, you pretty well have to refer to the SBA's
competency determination procedures if the past performance
factor is rated low enough that you wouldn't award the contract
to the firm. happy sails! joel
By
joel on Wednesday, February 12,
2003 - 09:12 pm:
Cherokee21, see Bob's Wifcon Bid Protest page at
http://www.wifcon.com/pd15305a2iii.htm
Check out the discussion on the DRA Software Training protest,
B-289128; B-289128.2, December 13, 2001 for a case on point to
your question. happy sails! joel
By
Eric Ottinger on Wednesday,
February 12, 2003 - 10:15 pm:
Cherokee21,
Long before OFPP started the current push to emphasize past
performance, the GAO took the position that corporate past
performance was usually the experience of the corporate entity;
however, for new starts the experience of key employees and
managers should be considered.
OFPP and DoD both have guides and they are very clear on this
point.
Eric
By
Cherokee21 on Wednesday, February
12, 2003 - 10:17 pm:
Most excellent Joel, thank you. As always, I am
impressed by your inputs
By
cherokee21 on Wednesday, February
12, 2003 - 10:20 pm:
As I am by yours, Eric, thanks.
By
joel hoffman on Wednesday, February
12, 2003 - 11:10 pm:
Folks, I may have been a little misleading. You can
give consideration to any firm for relevant experience by its
key employees. It just seems to be an issue in cases where a
firm can't otherwise show direct corporate experience. happy
sails! joel
By
joel hoffman on Thursday, February
13, 2003 - 08:19 am:
Eric, the case I'm looking for involved C. Lawrence
Construction ~ I don't have the B- number, yet. Still looking.
Cherokee21, check out this protest for an example where the
Government successfully defended a comparative past performance
evaluation and didn't have to refer the rating of the
unsuccessful, small business offeror to the SBA: Matter of:
Goode Construction, Inc. File: B-288655; B-288655.2; B-288655.3,
Date: October 19, 2001
http://www.contracts.ogc.doc.gov/cld/rd/gao/2001/B-2886553.html
happy sails! joel
By
joel hoffman on Thursday, February
13, 2003 - 08:42 am:
Eric, try this case. I don't have a link to the case,
itself:
"SIZE, NUMBER AND CHARACTER OF PAST PROJECTS
ARE ACCEPTABLE CONSIDERATIONS IN QUALIFYING CONTRACTOR
Matter of C. Lawrence Construction Company, Inc. (January 2002)
Comp. Gen. No. B-289341
The U.S. Army sought proposals, under a qualifications-based
system, to build an aircraft hangar and associated facilities.
It required contractors to list at least five projects valued at
$5-10 million which were "similar in scope to . . . aircraft
hangars and/or light industrial type facilities which may
include pre-engineered metal building frame, paving and utility
work." One contractor protested on the grounds that this would
prevent small, emerging businesses from competing for the work.
The Army responded that it needed to know that the contractors
are capable of building projects of this size and to be able to
determine whether a contractor had a trend of sustained,
continuous performance.
The Comptroller General allowed the requirement. It allows
evaluation criteria "so long as the criteria used reasonably
relate to the agency's minimum needs in choosing a contractor
that will best serve the government's interests." It was not
unreasonable to look for trends in contractors' work and since
the Project would cost at least $7,500,000, the dollar
limitations were acceptable."
Eric, it seems that this company is very active in the
litigation area. There were a lot of hits under that name.
Another GAO case involved a comparative evaluation, where the
Government deemed this company's relevant experience to be a
"deficiency". The GAO didn't specifically rule on the deficiency
issue, but decided the protest on other principles. That case is
"Matter of C. Lawrence Construction Company, Inc. File:
B-287066, Date: March 30, 2001
happy sails! joel
By
joel on Thursday, February 13, 2003
- 08:53 am:
Ha, I finally found it - where? It's in Bob's Wifcon
pages. go to
http://www.wifcon.com/pd11002a1.htm and look at the bottom
of the page for the link to the decision! happy sails! joel
By
Anonymous on Thursday, February 13,
2003 - 10:23 am:
Goode Construction is here too.
http://www.wifcon.com/pd15305a2.htm
By
Eric Ottinger on Thursday, February
13, 2003 - 12:08 pm:
All,
These topics are covered in the OFPP and DoD Guides.
http://www.acq.osd.mil/ar/doc/ppiguide.pdf
http://www.acqnet.gov/Library/OFPP/BestPractices/pastpeformguide.htm
Joel,
I am still looking for the case where the Government established
a “minimum” experience factor (separate from the Past
Performance factor) which the GAO did not consider to be a
responsibility determination, notwithstanding that minimum
clearly connotes Pass/Fail.
Lawrence appears to be a case with a single “past performance”
factor including elements of both past experience and past
performance. That is, performance is only considered for past
contracts which meet certain minimum size and scope criteria.
Eric
By
Vern Edwards on Friday, February
14, 2003 - 10:27 am:
Two comments.
First, I agree with Joel in that there is nothing new or
alarming about the GAO decision cited by FormerCO4AF, Phil
Howry Company, B-291402, Feb. 6, 2003. There is no new law
in that decision and it does not have wide applicability. It is
interesting only because of the unique circumstance that the
agency received only one proposal.
Second: As for evaluating the experience (or past performance)
of an offeror based on its proposed personnel or subcontractors,
I have long taken the stand that agencies should evaluate
offerors' organizational experience and past performance
separately from the experience and past performance of their
actual and prospective employees or subcontractors. I have done
so for a very good reason -- they are very different things.
The experience and past performance of a firm are embodied and
reflected in its policies and procedures and organizational
culture, which are important to its prospects for success. When
a firm has little or no experience with a certain kind of work,
it may not have the organizational "infrastructure" that would
ensure or enhance its prospects for successful performance. The
firm can try to make up for this lack by hiring managers and
employees with experience in such work, and by subcontracting
parts of the work, but new managers, employees and
subcontractors may not be effective in their new relationship.
They may not prosper in their new assignment. New managers may
not have enough time to establish and implement effective
policies and procedures and to indoctrinate their new colleagues
and subordinates. They may not get along with their boss or
their peers if performance becomes stressful. Subcontractors who
have not worked with the prime before may not work well with
their new customer.
For these reasons and more, I have urged agencies to evaluate
organizational experience, key personnel and subcontractors
separately and then take into account the kinds of
considerations I have just described when integrating their
assessments of each of the competing offerors. I would evaluate
a firm with organizational experience more highly than a firm
without it, but which has sought to make up for its lack of
experience through new hires or subcontracts.
It is not news to old timers here that I do not respect either
the OFPP or the DOD guides, because I think that they do not
adequately address this issue. The DOD guide, for example, seems
to treat the idea of crediting an offeror with the past
performance of its key personnel and subcontractors as nothing
more than a way to avoid having to give the firm a "neutral"
rating. It does not address the considerations that I discussed
above and is thus inadequate. FAR § 15.305(a)(2)(iii) says that
agencies "should" take into account key personnel and
subcontracts, it does not say "shall" and it does not say how to
do it.
A well-drafted RFP will say that if an offeror, as an
organization, has no experience in doing the work, then it will
be evaluated accordingly. It should say that if the offeror has
no organizational record of past performance it will receive a
"neutral" rating. The RFP should say that offerors will be
credited for the experience and past performance of their key
personnel and subcontractors, if appropriate, under separate
evaluation factors.
By
Eric Ottinger on Friday, February
14, 2003 - 11:51 am:
As we used to say in the army, “Opinions are like
noses, everyone has one.” However, most of us try to disagree
without being disrespectful.
When we first had this argument there was a speculative
interpretation of some case law to back up Vern’s argument. I
was not impressed by the case (one each) because it appears that
plaintiffs counsel was incoherent and the Comp. Gen. was doing
its best to find something halfway logical to respond to. (The
solicitation’s selection scheme wasn’t much better.) The
complaint (as best the Comp. Gen. could make it out) was that
the evaluators double counted by evaluating the same issue under
two different factors. The Comp. Gen. demonstrated that this was
not the case. (Incidentally -- if I remember correctly --
financial capability was lumped with numerous other factors
under “Technical Approach.” I’m sure the Comp. Gen. found this
greatly amusing, but it wasn’t an issue in the case.)
Vern may not respect the DoD and OFPP Guides, but it is evident
that the courts and the Comp. Gen. do respect the guides.
Personally, I prefer to treat past performance and experience as
separate factors.
With the push to use the minimum number of selection factors,
there is a tendency to lump disparate issues in a single factor.
Personally, I would rather have a sharper focus and more factors
(or subfactors) as long as the factors produce significant
discriminators. However, I try not to confuse my personal
preferences with policy.
In any case, treating experience as a separate factor would not
have solved the Army’s problem. It would still have been viewed
as a pass/fail and the Comp. Gen. would have wanted a COC.
Just to be perfectly clear-- The Guides clearly distinguish
experience from past performance. That isn’t the issue.
Vern should back up his argument with a case or admit this is
all a personal hobbyhorse.
Eric
By
Vern Edwards on Friday, February
14, 2003 - 12:05 pm:
Eric:
Calm down. I did not intend my comment to be any criticism of
you or attack on you. I'm sorry if you interpreted it in that
way.
Now, why are you asking me to produce a case? I agree with you
that if an agency establishes a minimum requirement for
experience and makes no comparative assessment, then it is
effectively using experience as a responsibility criterion. What
did I say in my post that makes you think I disagree with you? I
did not even address that question. What argument of mine are
you talking about? What case?
Go get some water (no more coffee for you), re-read what I said,
and then if you are taking issue with me for some other reason
come back and explain yourself.
Vern
By
Vern Edwards on Friday, February
14, 2003 - 12:21 pm:
Eric:
If you want a case in which an award was protested because the
agency distinguished between the past performance of the offeror
and its proposed subcontractors, and then down-scored the
offeror because it, as prospective prime, lacked experience even
though its proposed subcontractors had experience, see: Alpha
Data Corporation, B-291423, December 20, 2002. The protest
was denied. The GAO said:
"While Federal Acquisition Regulation (FAR) § 15.305(a)(2)(iii)
directs agencies to take into account past performance
information regarding subcontractors that will perform major or
critical aspects of the requirement when such information is
relevant to the acquisition, the significance of, and the weight
to be assigned to, a subcontractor's past performance is a
matter of contracting agency discretion. See Loral Sys. Co.,
B-270755, Apr. 17, 1996, 96-1 CPD ¶ 241 at 5; see also
Strategic Res., Inc., B-287398, B- 287398.2, June 18, 2001,
2001 CPD ¶ 131 at 5-6. Similarly, the weight to be assigned a
prime contractor's past performance--or lack thereof--should, in
our view, be considered a matter of contracting agency
discretion. Here, because the RFP solicited services in support
of SOF aircraft and weapons systems, the agency determined that
it was important that the prime contractor itself have had some
previous experience with SOF programs."
Does this help?
By
Vern Edwards on Friday, February
14, 2003 - 12:33 pm:
Eric:
Here's a quote from Sikora & Fogleman, B-236960, Jan. 17,
1990:
"Under experience, the RFP also required the offeror to identify
and demonstrate its organizational experience performing
contracts for similar requirements. S & F did not demonstrate
such experience, but maintains that the experience of its key
personnel, particularly the experience which one of its
principals gained as an employee of the contracting agency,
should be attributed to the organization. However, the RFP
called for evaluation of corporate experience separately from
the experience of the individual employees, which was also
evaluated. We have recognized that the firm's experience is
different from its staffs' individual experience, and we
consider HCFA's separate evaluation of these areas to be proper.
Professional Analysis, Inc., B-224096, Nov. 16, 1986,
86-2 CPD ¶ 579; Communications and Data Sys. Assocs.,
B-223988, Oct. 29, 1986, 86-2 CPD ¶ 491."
By
Vern Edwards on Friday, February
14, 2003 - 12:40 pm:
Eric:
Here's another, from Blue Rock Structures, Inc.,
B-287960.2, Oct. 10, 2001:
"We have no basis to question the reasonableness of the agency's
conclusion that one principal's prior project management
experience gained while working under the control of a different
and established firm, standing alone, does not demonstrate the
ability of that principal's newly-formed corporation to perform
similar work successfully. See York Sys. Corp., B-237364,
Feb. 9, 1990, 90-1 CPD ¶ 172 at 3-4. Further, as stated above,
the RFP here specifically differentiated between the evaluation
of a firm's corporate experience, and its key personnel's
experience (in fact, key personnel experience was to be given
less weight than the firm's corporate experience), and the
protester's proposal was, in fact, given full credit for the
principals' experience under that key personnel subfactor. The
record thus provides no reason to question the reasonableness of
the evaluation of corporate experience, which was consistent
with the RFP's evaluation terms."
Is this what you were looking for?
By
Eric Ottinger on Friday, February
14, 2003 - 12:44 pm:
Vern,
You win. Wrong argument.
Your disrespect was directed to the DoD and OFPP Guides.
I agree that there should be a clear distinction between
"corporate" past performance/experience and the experience of
key personnel and subcontractors. I would go farther and argue
that there is such a thing as generalized corporate past
performance entirely distinct from experience. That is-- If the
management of a firm has a solid record of success in various
undertakings, I would expect that they will find a way to get
the job done successfully, even if they have never done this
particular work before.
However, you will not find this view in the case law or any
official policy guides.
Eric
By
Vern Edwards on Friday, February
14, 2003 - 12:51 pm:
Eric:
No problem.
But I'm not sure that I follow your last comment. What view is
not in the case law?
Vern
By
Eric Ottinger on Friday, February
14, 2003 - 01:17 pm:
Vern,
I was taking some folks to task for speed reading and committed
the same sin myself. Again, apologies.
I am not aware of any authority for the proposition that there
is generalized corporate past performance entirely distinct from
experience doing similar work.
The guides are a work in progress. Doctrine regarding past
performance was pretty chaotic before the guides. The current
guides are the second edition. I am sure that the third edition
will be even better.
Eric
By
Vern Edwards on Friday, February
14, 2003 - 01:33 pm:
Eric:
No problem. I just had to cop to speed reading in the thread on
competition.
Vern
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