Subpart 36.602-3(c) lists one of the functions of an A-E Evaluation Board as follows:

"Hold discussions with at least three of the most highly qualified firms regarding concepts and the relative utility of alternative methods of furnishing the required services."

My questions to the above reference are as follows:

1. The reference doesn't make mention of "meaningful" discussions, but shouldn't such discussions be "meaningful"? What's to prevent a board from just holding discussions for the sake of meeting the discussions requirement.

2. Should discussions be such that what's discussed with one firm should be discussed with all others? I personally believe that discussions should be tailored to each firms strengths, weaknesses, or other factors worthy of discussion as found on their SF-254/255's. If identical questions are asked, what you ask may not be relevant to all firms. It circles back to if "meaningful" discussions are what is required. Identical questions or sample problems are good only if they are used to obtain a firms response to a situation. This brings me to my next question.

3. Under IDIQ type A-E contracts is it a good practice to allow firms to provide responses to sample task orders? That is, Government provides sample task, firms demonstrate how they would handle order, and Government rates firms on how well they handle the order. I've always thought this technique, when used in A-E IDIQ acquisitions, allows one to more effectively "rate" firms on something a little more concrete than just what's on paper. Also, if this is a good practice to use should it be limited to just the firms included in discussions or with all responsive firms?

By joel hoffman on Tuesday, November 28, 2000 - 05:41 pm:

Anon, FAR 36.602-1 is entitled "Selection Criteria". It says:
"c) Hold discussions with at least three of the most highly qualified firms regarding concepts, the relative utility of alternative methods and feasible ways to prescribe the use of recovered materials and achieve waste reduction and energy-efficiency in facility design (see Part 23)."

Is this is what the "discussions" you referenced are for?

Anyway, I researched the FAR, DFARS and Engineer Far Supplement 36.6 as well as Engineer Pamphlet 715-1-4 "How to Obtain Consideration for Architect Engineer Contracts with the Army Corps of Engineers". Although this Pamphlet only applies to the COE, it is an excellent outline of the process. It can be found under "Engineering Pamphlets" at "TECHINFO", accessible through "http://www.hnd.usace.army.mil/"

The guide states that "interviews" are held "with the 3 most highly qualified firms", prior to ranking them. (This is often done after a "pre-selection" process determined a list of the highly qualified firms, then the most highly qualified firms are determined.) Interviews will include "similar questions about their experience, capabilities, organization, quality management procedures and approach for the project."
I presume this includes the required discussions referenced above.

I also presume that you could ask them similar questions about an approach to task orders and you could discuss their SF254/255 information.

EP 715-1-7 are the internal COE guidelines for A-E selection and contracting. It is also viewable at the samr Website.

Hope this helps you! Happy Sails! joel

By Anonymous on Wednesday, November 29, 2000 - 04:57 pm:

FAR 36.602-3 is entitled "Evaluation Board Functions" it says...

"(c) Hold discussions with at least three of the most highly qualified firms regarding concepts and the relative utility of alternative methods of furnishing the required services."

It's virtually the same statement you quoted, but it is found under evaluation board functions (36.602-3) and not selection criteria (36.602-1). It also doesn't make any reference to efficiency, waste reduction, and recovered materials.

The reason for my initial inquiry is due to a comment made by an engineer recently appointed to serve on an A-E evaluation board. The engineer, incidently, previously worked for DOD. The comment made was that all A-E's included in discussions must be asked the same questions or be provided the same material. Evaluation boards cannot ask different questions of firms included in discussions. I told him this wasn't true. In order to provide some back-up to my response I was trying to find out how much of the "discussion" (or negotiations or exchanges) references in Part 15 are applicable to A-E discussions as provided in Part 36?

FAR 36.606 "Negotiations", says the following about negotiations

"(a)...Negotiations shall be conducted in accordance with Part 15...".

After reading that I went to Part 15. I found that 15.306(d) says negotiations are called "discussions". I found that 15.306(d)(1) says discussions should be tailored to an offerors proposal. I found that 15.306(d), in genreral, goes in-depth on the subject of "discussions".

Part 36.6 doesn't say too much about "discussions". Since it says negotiations should be conducted IAW Part 15, I assume one should go to Part 15.306(d) for guidance.

So how much of the "discussion" (or negotiations or exchanges) references in Part 15 are applicable to A-E discussions as provided in Part 36?

By joel hoffman on Wednesday, November 29, 2000 - 05:44 pm:

Anon, the negotiations mentioned in FAR 36.6 are cost and price negotiations. We only conduct these negotiations with the selected A-E firm.

The FAR 15 references refer to the Part 15 price and cost negotiation guidelines, including cost estimates, pre-negotiation objectives, audits, technical and cost analyses, price analysis, price negotiation memoranda, etc.

The "discussions" mentioned in FAR 36.602-3 and 36.602-1 are called "interviews" in the COE A-E selection guidelines. We conduct "interviews" with the highest rated A-E firms being considered for the final selection. The interviews cover the areas I mentioned yesterday.

The COE guidance says we interview the top three candidates, if there are three, before ranking them. Then we incorporate the results of the interview into the competitive evaluation. Then we rank the top three. Then we select the top-ranked firm to conduct negotiations with. If we can't reach a fair and reasonable price with the selected firm, we negotiate with No. 2 on the list and so on.

The COE guidelines say we conduct "similar interviews" with the most highly qualified firms. Since the interviews are to include job specific topics, I'm sure you can discuss any concerns you have with their 254's and 255's. It would be absurd to assume that the Government isn't allowed give and take discussions regarding qualifications based selection procedures.

Does this make sense? Does your agency have a supplement to the FAR? Did you read and interpret the COE guidelines (I know they don't necessarily apply to your agency - they are COE's interpretation of the FAR and of the Brooks Act).

I suggest you try this... Tell the "expert" to show you where it says you have to ask the same exact questions and not one other question specific to the firm being interviewed, as it relates to the instant contract or project.

Happy Sails! Joel

By joel on Wednesday, November 29, 2000 - 05:53 pm:

Anon - I'll clarify by saying that we may interview more than three firms, if there are more than three "most highly qualified firms".

I will reiterate that an "interview" must allow for some give and take discussion. It's dumb to have a one way interview - you can ask the EXACT SAME questions to each in a letter or using a video - no need for an "interview."

The key is that you are to ask SIMILAR QUESTIONS plus discuss job specific information and approaches, etc. Happy Sails!

By Anonymous on Thursday, November 30, 2000 - 10:08 am:

Thanks for the clarifications and thanks for your help.

By Vern Edwards on Thursday, November 30, 2000 - 10:28 am:

Anonymous:

The discussion rules in FAR Part 15 do not apply to A-E contractor selections. See FAR 36.601-3(b).

The requirement for "meaningful" discussions applies to the discussions conducted under FAR Part 15, not to the discussions conducted in an A-E procurement. The "discussions" mentioned in FAR 15.306(d) are not the same as the discussions mentioned in FAR 36.602-3(c). Discussions in FAR Part 15 are discussions in which the government tells the offerors about "deficiencies" and "weaknesses" in their proposals. The GAO says that such discussions must be "meaningful" in the sense that the government must disclose enough information about the shortcomings in the offerors' proposals to enable them to make improvements through revisions. A-E candidate firms do not submit proposals and the GAO has not appled the meaningful discussions rule to A-E discussions. See ARTEL, Inc., Comp. Gen. Dec. B-248478, August 21, 1992, footnote 2. [The reference in that case to FAR 36.601-3(a) is now 36.601-3(b).] As Joel said, discussions in A-E procurements are really interviews. They are not negotiations.

As a general rule, there is no requirement that you ask all A-E candidate firms the same questions or provide them with the same material. Your engineer's assertion that evaluation boards cannot ask different questions of the firms included in A-E discussions is simply wrong. It would even be wrong in FAR Part 15 discussions.