By Vern Edwards on Tuesday, July 16, 2002 - 11:25 am:

Chuck:

My opinion is that neither the FAR nor the Comp. Gen. has ever established clear rules about the conduct of discussions. The Comp. Gen. decides each discussions case on an ad hoc basis and does what it thinks is right based on the facts of that case, then finds case law to support whatever decision it made. The case law is so all over the map that the Comp. Gen. can find a case in support of almost any decision it wants to make. The Comp. Gen. simply ignored the FAR Part 15 Rewrite (see Cy Phillips article at the Wifcon Analysis page) and apparently doesn't agree entirely with the Court of Federal Claims. The Comp. Gen. has tried to strike a balance between requiring agencies to communicate fairly with offerors on the one hand and, on the other, not requiring them to "spoon feed" offerors.

I think it's a waste of time to look for clear consistency from the Comp. Gen. on this issue.

One thing is clear: while an agency might lose a discussion protest for not saying enough about an offeror's proposal, it won't lose one for saying too much about the proposal, as long as it doesn't disclose the contents of a competitor's proposal. In light of that reality, the interesting question is why agencies ever hold back anything that they think about a proposal.

Vern

By joel hoffman on Tuesday, July 16, 2002 - 11:44 am:

Chuck, I totally agree with you. Why shouldn't we advise an offeror that it isn't competitive, but could be with some adjustment to its proposal? That doesn't make any sense to me. If such is the case, they should be removed from the competitive range or told why they aren't competitive. In my experience, they want to know whether or not they are competitive. If they aren't, they can make a choice to regroup or to drop out, saving further effort and expense.

I remember, up until the FAR 15 re-write, the prescription against "technical leveling", together with the concept of "when in doubt, keep them in the competitive range", used to almost paralyze us in effective discussions of recommended improvements to proposals, which otherwise met the minimum RFP requirements.

Old FAR 15.610(d) stated that "The contracting officer and other personnel involved shall not engage in technical leveling (i.e., helping an offeror to bring up its proposal to the level of other proposals through successive rounds of discussion, such as by pointing out weaknesses resulting from the offeror's lack of diligence, competence, or inventiveness in preparing the proposal."

So, we were supposed to keep them in the range, for fear of a protest, but we weren't supposed to tell them were they were merely weak, due to lack of diligence, inventivenes, etc. At least that's the way the FAR was interpreted, whether or not that was the real intent of FAR. My Air Force customer was frustrated once, that we weren't allowed to discuss certain features of a couple of offerors' proposals for family housing design that, while it met the RFP requirements, he detested.

The same mentality pervaded price discussions in old 15.610(e)(2) for fear of "auctioning", whether or not warranted. We were taught not to be too aggressive during price discussions. We were discouraged from getting into much detail of how competitive their prices were. If they were "fair and reasonable", but not very competitive, we were supposed to tread lightly in that area. Well, that was STUPID.

One can simply compare the new and old FAR 15 versions, regarding both price and technical discussions, to note the stark contrast in the philosophy of discussions.

The FAR 15 re-write, which emphasizes bargaining is a great improvement. However, folks familiar with the earlier version may still have the baggage of the "thou shall NOT discuss..." tone of the old FAR.

happy sails! joel hoffman

By Eric Ottinger on Tuesday, July 16, 2002 - 12:01 pm:

Chuck,

I doubt that the Comp. Gen. has changed its policy with regard to a price which is unreasonably high in relation to the evaluated cost for the offeror and the offeror’s technical approach.

Take a look at Hydraulics International, Inc., Comptroller General Decision , No. B-284684; B-284684.2, May 24, 2000

“In this regard, we have held that an agency failed to conduct meaningful discussions where it failed to apprise an offeror that its prices was viewed as unreasonably high. Price Waterhouse, B-220049, Jan. 16, 1986, 86-1 CPD 54 at 6-7.”

In the Hydraulics case the PCO and the Comp. Gen. considered the price to realistic for the offeror’s technical approach.

If you look at the subsequent cases which cite National Projects you will find one of two situations. Either the price is reasonable and competitive, albeit a little bit higher than the successful offeror; or, the price is reasonable for the high cost technical approach which the offeror has chosen.

In any case, as far the Comp. Gen. is concerned the PCO did put National Projects on notice that the price might be too high.

“The agency’s written discussion questions did advise the protester of the agency’s concern about the prices for specific line items. For instance, the protester was asked to support its costs for line item No. 0002, for which it submitted a price of [DELETED], since the IGE for this work was approximately [DELETED]; as to line item No. 0008F, the protester was asked to verify its price of [DELETED] as the IGE was approximately [DELETED]. We think these discussion questions reasonably should have put NPI on notice that the agency considered its prices for the stated line items high.”

Personal opinion: An offeror should propose his/her best price right from the start. An offeror who submits a high cost proposal initially, expecting to find out what the price should really be in discussions, is not an offeror who would get much sympathy from me.

Getting back to fundamentals-- The Comp. Gen. (who are auditors, after all) wants to be sure that the government gets a good product and a good competitive price. The protestor did not make a case that the government would have received a significantly better deal if the PCO had taken another approach. If there is no indication that the government should or would have received a better deal, it is unlikely that the protestor will win. I think that is, as it should be.

Joel,

I think you are reading more into the case than what the case actually says.

Eric

By Vern Edwards on Tuesday, July 16, 2002 - 12:42 pm:

Chuck:

You cited National Products, Inc., B-283887, Jan. 19, 2000. That's a sealed bidding case.

By Vern Edwards on Tuesday, July 16, 2002 - 12:45 pm:

Eric, to what case were you referring when you told Joel that he was reading more into it than what it actually says? Joel didn't mention any case and Chuck's case cite is wrong.

By Eric Ottinger on Tuesday, July 16, 2002 - 12:46 pm:

Vern,

Keep reading !!

Eric

By Vern Edwards on Tuesday, July 16, 2002 - 12:48 pm:

Chuck:

I meant National Projects, Inc.

By Eric Ottinger on Tuesday, July 16, 2002 - 12:56 pm:

For the benefit of those who don't have ready access to a database--

National Projects, Inc., (Jan. 19, 2000)

"Since all bids significantly exceeded the IGE and the amount of funds available, the contracting officer decided to reject all bids as unreasonably priced in accordance with Federal Acquisition Regulation (FAR) §14.404-1(c)(6), and to cancel the IFB. In addition, she decided to complete the acquisition by negotiation consistent with FAR §14.404-1(f)."

Eric

By Vern Edwards on Tuesday, July 16, 2002 - 01:18 pm:

Eric:

Thanks.

Vern

By bob antonio on Tuesday, July 16, 2002 - 01:35 pm:

Try the letter "N."

http://www.wifcon.com/pdbydecision.htm

By Vern Edwards on Tuesday, July 16, 2002 - 01:39 pm:

Chuck:

I've read the case. I don't think that the GAO changed the rules as it had existed in its case law. I think the decision is consistent with other decisions like it. Morevoer, I think that the decision makes sense in light of the facts of the case.

If I have any complaint, it's not with that decision, but with the GAO's general approach to discussions and with the organization and language of FAR § 15.306. There is a struggle between the desire to be fair to offerors during competitive discussions and yet allow contracting officers discretion about what they have to talk about.

I think that life would be simpler for everyone and protests about discussions would be eliminated if the rules simply required the contracting officer to provide every offeror within the competitive range a copy of the government's evaluation of its proposal. Such a rule would have the beneficial effect of motivating agencies to be thoughtful about their choice of evaluation factors and thorough in their evaluations and in their documentation of evaluations, and thus of reducing post selection protests about such evaluations. An agency should not make a source selection decision on the basis of information that they are not willing to disclose to the offerors.

By joel hoffman on Tuesday, July 16, 2002 - 01:52 pm:

Vern - I agree that life would be simpler for everyone and protests about discussions would be eliminated if the rules simply required the contracting officer to provide every offeror within the competitive range a copy of the government's evaluation of its proposal.

Eric - if you are referring to the FAR 15 re-write "case", I believe there was a concerted effort to "reform" source selections, with an emphasis on "bargaining." However, changing the mentality of Government source selection officials is like trying to pull an M-1 tank by hand... happy sails! joel

By Eric Ottinger on Tuesday, July 16, 2002 - 02:43 pm:

Joel,

I thought we were all talking about National Projects. However--

You understand that I agree with absolutely everything that you said in your earlier post.

I think a detailed piece of paper with every evaluation finding carefully vetted and approved by legal and higher management would be absolutely the best way to roll back reform and put a stopper on any real “discussion” at the table. The working level 1102 would spend most of his/her time and energy trying to get this perfect piece of paper through the approval cycle. Face to face with the contractor, the 1102 would be utterly mute, for fear of saying anything more or less than what was in the approved piece of paper.

I would say the Comp. Gen. is doing its best to discourage quibbling. On the whole, this encourages frank, open discussion.

However, there are different opinions, and, as you say, it takes something like a tank recovery vehicle to move people who have their minds made up.

Eric

By joel hoffman on Tuesday, July 16, 2002 - 03:07 pm:

Eric - I assume you are referring to my "11:44" post, because we probably don't agree, concerning whether to provide the evaluation to the offerors for discussion. I began removing the rating from the evaluation sheets and providing the narrative comments to the offerors with the letter notification of discussions after a few years into source selections, because it was easy for me and informative for the offerors. This was after the FAR 15 re-write encouraged more substantive discussions. It sped up, rather than slowed down discussions.

I never had a protest over any issue in the initial evaluation, plus they were going to see the final version with the debriefing, anyway. The offerors generally seemed to like it and I liked it. happy sails! joel

By Chuck Solloway on Tuesday, July 16, 2002 - 03:18 pm:

In National Projects the Comp Gen said this about FAR 15.306(e)(3), "This language clearly gives the contracting officer the discretion to inform the offer that its price is too high, but does not require that the contracting officer do so."

In Cherokee the Comp Gen said (with respect to FAR 15.306(e)(3), "This language clearly gives the CO discretion to inform the offeror that its cost/price is too high. but does not require the CO to do so..."

In both cases, the decisions themselves are not unreasonable. It appears that National Projects must have been aware that price was an issue since pricing issues were brought up in discussions and since an earler IFB had been canceled due to pricing issues.

In the Cherokee case the price apparently was not considered "too high", it merely did not offer the best value.

It is the above quoted words that the Comp Gen used with respect to FAR 1506 that are at issue. In my opinion the contracting officer should not "clearly have discretion" when the price offered by someone in the competitive range is too high. Instead, the contracting officer should be required to address his or her concern with the price. Anything else doesn't meet the common sense test.

With respect to the old FAR and the new FAR, I assumed that "technical leveling" is included in those actions that could "favor" one offeror over another. However, technical leveling traditionally has only occured when there were "repeated rounds of discussions" on weaknesses. Somehow this gave rise to a widespread myth that weaknesses could not or should not be discussed.

The changes in prohibited practices with respect to price and cost seem to be these.

a. Telling a contractor that its price is higher than others is not prohibited unless you identify the others.

b. Telling all contractors the government estimate is okay.

c. It is okay to tell a contractor that is price is "too high" or "too low".

Unlike Vern, I have always felt that the Comp Gen was remarkably consistent in approach. However, I sometimes find the Comp Gen inconsistent in the use of words and terms. For example, the Comp Gen will refer to an identical issue in one paragraph as a weakness and in another paragraph as a deficiency. They are, in fact, two separate entities and issues. And he has often confused terms such as "technical leveling" and "technical transfusion". The Comp Gen's words (such as those used in National Projects and Cherokee in explaining FAR 15-306)establish precedent for contracting officers and are taken very seriously and very literally.

The current issue is this. When a competitor in the competitive range has a price that is "too high", does the contracting officer have an obligation to address the issue in discussions? Or does FAR 15-306 give the contracting officer the alternative of not addressing the issue? In my opinion the contracting officer should be required to address the issue. And the Comp Gen should be clear on this point.

By Vern Edwards on Tuesday, July 16, 2002 - 05:59 pm:

I think Eric is right that many 1102s would spend too much time trying to get the perfect piece of paper before going into discussions. But that's a problem with 1102s who don't know the FAR and the GAO decisions.

I have actually done what I suggested when I was a contracting officer and it worked great. I've handed over the entire evaluation record, down to individual evaluator reports. I've even done it to resolve a protest when the protester brought his lawyer. Offerors would sometimes quibble with our findings, but not as often as you might think. And more often than not they thanked us for being open with them.

If you give an offeror your evaluation, and they point out something that you got wrong, then you should thank them, because you can fix your mistake before you have to talk to the GAO. If they can't find anything wrong, then they know exactly where they stand and why.

Of course, my evaluators did first rate evaluations; I made sure of that. If you don't do first rate evaluations, then maybe you should hide the evidence, at least until the GAO or the Court of Federal Claims asks for it and gives it to the protester's lawyer.

If you have incompetents conducting your business, then maybe you should hide their work as long as possible.

By Eric Ottinger on Tuesday, July 16, 2002 - 10:25 pm:

All,

I would still adhere to some of the traditional constraints. I am always asking myself whether I can discuss a point without being unfair to the other offerors. If it is apparent that the offeror missed the target for some aspect of the proposal because the offeror is fundamentally clueless, too lazy to do the necessary research, a dim bulb overall, or because the weakness is so inherent that the offeror would have to start from scratch with a different concept, I would be uncomfortable discussing the weakness.

I’ve heard the argument that such proposals shouldn’t make it to the competitive range. In my experience, a proposal with some complexity can be excellent in many areas and utterly mediocre or bone-headed in a few areas.

Also, I don’t want to get down into the weeds chasing smaller and smaller weaknesses out of a fear that I might have failed to communicate a small weakness. I want a discussion focused on a limited number of significant weaknesses and a quick turnaround for the revised proposal.

Of course, this is an old argument. I don’t look forward to getting into the argument again. If, in fact, the Comp. Gen. and the Part 15 Rewrite Team did anything other than what they intended to do, you would think someone would have taken this argument to a court by now. “Leveling” is gone. “Spoon feeding” is still noxious. I would think there would be enough court cases, in addition to the Comp. Gen. cases, to put an end to the argument.

Eric

By joel hoffman on Tuesday, July 16, 2002 - 11:21 pm:

Eric, not an attempt to to debate you. I'll just explain that if I was going to the effort to keep someone in the competitive range, I'd prefer to bargain, to let them know what I didn't like about their proposal. I want to obtain the best terms possible for my client - why be satisfied with a mediocre proposal? One should conduct discussions with each proposer in the competitive range, as though that firm was likely to win the competition. I'd not be satisfied with part good and part poor proposal. If I was not satisfied with a proposal and didn't feel that it had a chance of being satisfactory, I'd recommend dropping it from the competitive range. happy sails! joel

By Vern Edwards on Tuesday, July 16, 2002 - 11:32 pm:

I don't think you have to "get down into the weeds" and chase weaknesses. All you have to do is send each offeror a copy of its evaluation a week (or a day or two) in advance of telephonic or face-to-face discussions and say: "Any questions? If so, ask away. If not, final proposal revisions are due in [fill in the blank] days."

Easy as pie and virtually protest proof. Protests about inadequate discussions would disappear. (Might still get protests about misleading discussions, depending on how you answer the questions.)

And you can always say more if you want to request specific changes.

But, like Eric said: "[T]here are different opinions, and ... it takes something like a tank recovery vehicle to move people who have their minds made up."