I have a recurring requirement for the publication of a newsletter. Initial award made, with options, new contract competed...evaluation board selected initial contractor over 27 proposals. Subjective evaluation. Now time again to re-solicit, however, I feel the board may again select the existing contractor, thereby wasting the time and money of the public and government. Customer is satisfied with current contractor, quality and price. Is there anything out there to justify a follow-on contract for this service? Or this there a way to word the solicitation to say the government is satisfied with the current contractor's performance?

By Mike Wolff on Monday, February 25, 2002 - 01:58 pm:

Patti, assuming you are governed by the FAR, the only way you could go sole source would be if one of the exceptions at FAR 6.302 applies. Based upon your message that wouldn't appear to be the case.

By Vern Edwards on Monday, February 25, 2002 - 02:02 pm:

Patti:

It sounds like the first question that you're asking is whether the facts that you've related would justify a noncompetitive (sole source) award to the incumbent contractor. If so, the answer is no.

With regard to the second question, about the wording of the solicitation--try this:

1. Limit your evaluation criteria to relevant experience, past performance, price and, if applicable, small disadvantaged business participation.

2. Include the following statement in the section of the solicitation in which you describe your evaluation factors:

"The incumbent contractor's performance has been excellent during the past X years. Therefore, if the incumbent submits a proposal, the government will rate its experience and past performance to be excellent."

This is perfectly legal and many prospective offerors will thank you for being forthcoming.

By Anonymous on Monday, February 25, 2002 - 02:38 pm:

Patti,

Is the contractor available on a GSA schedule?

By Mike Wolff on Monday, February 25, 2002 - 02:50 pm:

Vern,

Item 2 in your message is very interesting. Do you know of any case where this has actually been done, and has there ever been a protest when such a statement has been used? My office does a lot of service contracts for janitorial services, mechanical services, and elevator services, where we have a long history with the incumbent contractor, so this could be very beneficial.

Mike

By Vern Edwards on Monday, February 25, 2002 - 03:17 pm:

Mike:

I can't recall a specific instance in which that had been done, although I have been recommending something like it for years and I think that one or two people have probably done it or something like it. There are no protest decisions about it that I have been able to find.

I don't know what kind of protest anyone could hope to win on the basis of the statement except to claim some kind of bias on the part of the agency. However, the statement does not say how the agency will treat competitors, it only says how it will treat the incumbent and why. So unless a protester could make the case that (a) the incumbent's record has not been excellent or (b) that it doesn't make sense to give an excellent contractor an excellent score, then there is nothing in the statement to which they can validly object.

As long as the agency says it will give treat all offerors equitably and in accordance with the terms of the RFP, then on what basis could the GAO sustain a protest?

If I were the CO I would actually go further than the statement that I suggested; I would say that in order to beat the incumbent an offeror would have to have at least as good a record and offer a lower price, since it will cost the government some money to switch contractors. I'd be willing to defend that statement before the GAO.

By the way--if the incumbent gets cocky and proposes too high a price, then you can always conduct discussions.

By Anonymous on Tuesday, February 26, 2002 - 08:17 am:

I have some doubts as to whether it is legal to tell potential offerors that the incumbent's past performance will be evaluated as "excellent." Although the propriety of this will depend in large part on the RFP's PP evaluation criteria, it is unusual to evaluate only one contract in the PP evaluation. What if the incumbent had unsatisfactory performance on other relevant contracts? Under Vern's approach, this would be irrelevant. What if the incumbent's performance took a nose dive after it learned that it was assured of a score of "excellent"? Again, irrelevant under Vern's proposal.

I've never seen an RFP tell potential offerors that a particular party WILL be deemed to have a particular rating. Unless the RFP were worded very narrowly (and this in itself could be problematic), I wouldn't risk it.

By Vern Edwards on Tuesday, February 26, 2002 - 11:01 am:

Anonymous:

Why do you doubt it?

And although it may be unusual to evaluate only one contract, where does it say you can't? (I assume that the CO will check to make sure that the incumbent has not been debarred or convicted of some crime.)

And if the incumbent's past performance takes a nose dive, the CO can amend the RFP to delete the statement.

By Anonymous on Tuesday, February 26, 2002 - 12:12 pm:

Have you considered an "award term" contract?

By Anonymous on Tuesday, February 26, 2002 - 01:08 pm:

I remember an instance when our lead technical person hugged one of the competitors at a bidders conference.

Now it may be that these individuals are just natural born huggers. It may be that somebody needed a hug.

In any case, we in the contracts office were not happy with this display.

If you don’t see my point Vern, maybe someone else should explain it to you.

If you trumpet the incumbent’s excellent qualities in the context of a source selection, the other offerors will conclude that the selection is wired. If the offerors believe that even one selection is wired, they will assume that this is the way that your office does business.

By Anon2U on Tuesday, February 26, 2002 - 10:33 pm:

Anon 1:08PM

Of course they are wiring the acquisition. The program office is happy with what they got and want to keep it. Sometimes they are more than willing to pay extra for it. Risk aversion is #1 in the government. It is perceived to be risky to change. The CO is supposed to temper this on behalf of the taxpayer by assuring that the price is fair and reasonable.

Probably 50 to 60% of the acquisitions above $100K are preselected in my agency. The program office sometimes admits it and sometimes lies to the CO. I just make sure the evaluators are careful to not make it too obvious in thier final report.

But why put the competition through the cost of writing proposals when they don't have a chance of winning?

Vern is proposing a method to let the competitors know that their proposal had better amaze the program office if it has any chance. Most will not waste their resources. I think it would hold up at GAO but the competition advocate will have a tizzy.

By Vern Edwards on Tuesday, February 26, 2002 - 10:33 pm:

Anonymous:

Or maybe they will assume that you are telling them the truth so that they can make an informed bid/no bid decision.

Maybe you're more in love with the pretense of competition than with the reality. If you were Patti, how would you respond to a prospective offeror who telephoned to ask what your organization thought of the incumbent? Would you say, "We can't say"? or "None of your business"? Do you think that would be better than telling the truth?

What is it that bothers you--the idea that the agency likes its good incumbent and would rather stick with it than switch contractors on the basis of a bunch of promises, or the idea that the agency would tell the truth?

It's simple: If the agency personnel really feel think that the incumbent is swell, then the choices are: (a) to make them recuse themselves, (b) to be up-front, or (c) to not be up-front. If you don't see the point, well, then you just don't see it.

By formerfed on Wednesday, February 27, 2002 - 08:25 am:

For those that talk with industry regularly and listen to what is said at conferences and other forums, industry wants to stop commiting huge amounts of respouces proposing. Instead, they seek to make investments when they see a good chance of winning. A big criticism often heard is that the government doesn't share information needed for firms to first, make a bid/no bid decision, and second, to prepare a good response.

The real intent of competition is to obtain the best deal for the government. That doesn't include doing everything to put all parties on an even starting point. That's impossible to do.

I like Vern's approach. I think industry would also. They don't want to invest limited resources only to find out later they stood no chance of winning.

I don't see being open and honest as illegal or improper.

By Anonymous on Wednesday, February 27, 2002 - 09:46 am:

Vern -

Anon 8:27 (from yesterday) here. I didn't say that your ultimate goal was bad as a matter of policy, and I don't doubt that other offerors would appreciate the information on how the agency views the incumbent. But I continue to doubt that that your suggestion would be proper as a matter of law.

Your suggestion was that the RFP expressly state that "if the incumbent submits a proposal, the government will rate its experience and past performance to be excellent." It is difficult for me to understand how, under the current regulatory scheme and GAO precedent, the agency can pre-ordain the result of an evaluation that has not yet occurred. The truth, of course, is that the agency's "evaluation" of these two factors already has occurred through a vague and nebulous gestalt process, without memorialized standards and without an identifiable "record" or package of information by which the reasonableness of the "evaluation" results can be judged. I think GAO would view this very problematically.

And while your suggestion might not cause any real damage to the integrity of the procurement process in Patti's particular situation, permitting agencies to pre-ordain evaluation results generally creates a real potential for (increased) mischief.

Just my $0.02.

By Vern Edwards on Wednesday, February 27, 2002 - 10:44 am:

Anonymous:

Your two cents are very welcome. However, I don't think that stating in the RFP how the incumbent would be evaluated on experience and past performance would violate any law or regulation of which I am aware. In any case, you haven't cited any law--statute or case law--or regulation that would be violated by making such a statement.

It seems to me to be a matter of common sense that the procuring agency already knows about the incumbent's experience and past performance and that it would have reached a conclusion about them. Indeed, I think that FAR 42.1502(a) requires that an agency reach such conclusions as a matter of contract administration.

However, if all that troubles you is the idea of stating in advance how the incumbent will be evaluated, then use the following statement instead of the one that I first proposed:

"The Government considers the incumbent contractor's experience with the requirement to be extensive and its performance to have been excellent during the past X years."

By AnonX on Wednesday, February 27, 2002 - 10:57 am:

Anonymous,

Sounds like a valid concern you have. I think I like Vern's suggestion in principle though, and can improve upon it by re-wording the RFP statement something like, "The Government is pleased with the performance, experienced to date, of the incumbent on this contract. Such performance will weigh heavily in the total past performance evaluation of the incumbent in the event the incumbent elects to submit a proposal in response to this RFP."

By Anonymous on Wednesday, February 27, 2002 - 11:33 am:

Vern & AnonX -

Anon 8:27 here. I like these suggestions, and can't really think of a reason why these types of statements should be improper. That's not to say that someone wouldn't protest them, but I tend to agree that the agency would have the better argument in the protest.

Even better, to be timely the statements would have to be protested in a pre-award protest, and most offerors sophisticated enough to know that such statements are protestable are also sophisticated enough to realize that they will not win many points with their customer (and they'll need lots of points to unseat a favorably-viewed incumbent) by protesting this type of statement.

Geez, I think I feel a group hug coming on. ;-)

By Anonymous on Wednesday, February 27, 2002 - 12:21 pm:

Not to beat a dead horse but how about "Experience and past performance (such as the incumbents) shall be heavliy weighted in the evaluation process."

By Vern Edwards on Wednesday, February 27, 2002 - 12:47 pm:

We don't need to reach an agreement on the precise wording of the statement. Almost any statement which communicates the fact that the Government is highly pleased with the incumbent and that a competitor will have to be really good in order to dislodge the incumbent will do the trick as far as I'm concerned. The idea is to let prospective offerors know what they're up against, so they can make an informed bid/no bid decision.

By #$%@# Anonymous on Wednesday, February 27, 2002 - 03:07

How refreshing! I think of a pretty good little "How to" book on consulting. On the subject of consulting for the government it simply said "Don't" and then briefly explained the frequent abuse of being used as bid fodder.

The author recounted how he'd been contacted in advance, urged to respond, spent considerable time and effort, been encouraged to continue when it became a burden and then found they had picked the incumbent. He later found the agency just loved the incumbent and probably never had any wish to change. The author felt used and abused. He was discouraging all others from getting involved in government work. I know more than one good business steering clear for similar reasons.

"Fairness" is no excuse for unfair abuse, even a form of fraud, of innocent bystanders.

(#$%@# Anonymous just for Vern -- and to keep the anonymousness from being too confusing.)

By Anonymous on Friday, March 01, 2002 - 03:45 pm:

Vern:

Your idea of telling the vendors up front that the incumbent is doing an excellent job, if that is the case, I think would be appreciated by vendors, as it takes a lot of time and money to prepare a proposal. Two possible problems with it are: In my experience I have sometimes heard an incumbent praised as excellent in the early periods of the acquisition, and later someone in the organization scales that back to actually only "good" when it is time to answer a past performance questionaire. Their earlier informal "excellent" rating is often based in part on the attractiveness of the status quo and not having to evaluate multiple proposals, and becomes merely "good" when it is time to get down to brass tacks and the competitive process is seen as inevitable. An amendment that we did not really mean it when we said the vendor was excellent is not the way we would want to go. Maybe the answer would be to have the COTR answer a draft past peformance rating early, but that is sending a not very positive message to the COTR about your confidence in what he initially tells you, and we are all "customer service" oriented now. But our customers do try to put a few past us sometimes to avoid the competitive proposal process, which some seem to just have a congenital resistance too, justified or unjustified. Any suggestions on this?
Second concern: If I were the incumbent, I might view the RFP statements you advise as clueing my competitors to really sharpen their pencils and lessen profit more than usual to get the work, and I would prefer they did not get this free advice. But from the Govt.'s perspective, that could be a good thing.

By Anonymous on Friday, March 01, 2002 - 03:49 pm:

Dumb question?

Are past performance ratings releasable under FOIA?

By Vern Edwards on Friday, March 01, 2002 - 10:34 pm:

Anonymous of 3/01 at 3:45pm:

You make good points. Before telling the world that the incumbent is excellent, make sure of it and make sure that everyone in the office is on the same page.

My recommendation was based in part on Patti's indication that the incumbent had performed over an extended period of time--a base period and some option periods, which suggests that the incumbent had been a consistently good performer.

By Vern Edwards on Friday, March 01, 2002 - 10:37 pm:

Anonymous of 3/01 at 10:34pm:

Not a dumb question at all. No, the actual ratings are "source selection information" and may be disclosed only to the contractor and Government personnel. See FAR 42.1503(b).

I assume that an incumbent will not object to the government telling the world that its performance has been excellent. But it will be a different matter if its performance has been poor.

By Ms. Flintstone on Saturday, March 02, 2002 - 09:38 am:

Vern:

Your last paragraph made me think. If the incumbent did poorly, do you think that should be noted to enhance the prospects for competition. Would it be more clear to say that if the incumbent submits an offer, we will rate it as low as we can go?

By Vern Edwards on Saturday, March 02, 2002 - 12:48 pm:

Dear Wilma:

I think that if the incumbent did poorly, then you can't use the approach I described earlier, because if you say in the RFP that the incumbent did poorly and that you're going to rate it that way it's going to have conniptions. Who wants to deal with that? However, you can say something like this:

"Although there is an incumbent contractor, the Government is eager to obtain competitive proposals from companies with good performance records and experience doing the kind of work described in this solicitation."