I'm looking for answers to the following two questions regarding a competitive solicitations for conducted under FAR 8.4.

1. Does a GAO protest of an awarded FSS order necessitate a stay on performance.

2. As these procurements are conducted under FAR 8.4 rather than FAR 15, does the contracting officer have discretion to use a streamlined evaluation similar to that permitted under FAR 13 rather than FAR 15.3? I assume the contracting officer is not required to execute competitive range determinations and follow the final price revision process, even for large $ acquisitions, but I can't find any GAO decisions on the matter.

I appreciate your assistance.

By Stan Livingstone on Thursday, October 05, 2000 - 09:51 am:

I assume a timely filed protest does necessitate a stay.

The problem is a solicitation doesn't have to be issued. In fact, it's wrong. It waste money, time and effort. All that's needed to place orders is following FAR 8.4. There are some GSA Schedules for services (MOBIS is one) where the ordering procedures require issuing an RFQ to three vendors. This is primarily schedules for professional type services and the intent is get the best deal through use of performance based SOWS. You can still make a best value determination in making the selection.

By Anonymous on Thursday, October 05, 2000 - 10:40 am:

Thanks Stan. I appreciate your quick response.

The requirement to issue an RFQ to three vendors applies to all FSS for executive, administrative, and professional services priced at hourly rates on a FSS (see http://pub.fss.gsa.gov/sched/ordinssv.cfm).

What I'm trying to find is a GAO decision stating contracting officers, while required by GSA to issue RFQs, still have discretion to forego things like competitive range determinations and final price revisions. (Personally, I think GSA was right to issue these supplemental procedures for services and that it's not a waste of time.)

As for my first question, the reason I thought a stay might not be required is FAR 33.104(c) states a stay is required for protests within 10 days of "contract award" or 5 days of a "required" debriefing. In the case of FSS orders, you could argue "contract award" refers to GSA awarding the schedule and there is no "required" debrief for GSA orders as FAR 15 doesn't apply.

By Eric Ottinger on Thursday, October 05, 2000 - 12:09 pm:

Anon,

Assuming that we are talking about GSA contracts I would say to just follow the instructions in the GSA contract, no more no less.

Carl Peckinpaugh addressed some these issues in a recent article.

http://www.fcw.com/fcw/articles/2000/0626/pol-carl-06-26-00.asp

Under the law we are only allowed to acquire the lowest cost using these vehicles.

A few years ago, "best value" would have been considered the logical antithesis of lowest cost.

But "best value" has been redefined to a point where I am not sure what it means in this context.

"Lowest cost" is not quite the same thing as "lowest price," but I expect to see a lot memos to file arguing in a tautological fashion that the preferred contractor is "lowest cost" because none of the lowered priced offerors can match the gold-plated, excellent services of the preferred contractor.

This will cause some problems later if not sooner.

Eric

By Stan Livingstone on Thursday, October 05, 2000 - 02:35 pm:

Anon,

I think you're making this a little more complicated than it needs to be. Try looking at the process this way. GSA makes contract awards for services to multiple companies. Whenever the individual requirement exceeds the designated level, you must issue an RFQ to at least three firms. If prices exceed the MOL, seek price reductions. Then you make a selection decision on which one is the best value and represents the lowest overall cost alternative.

If you did proper upfront screening of the companies, the three you select to obtain price quotes should be well qualified. Then identifying the lowest price is easy. If you have strong feelings that prices quoted may not represent the lowest cost alternative, FAR 8.404(b)(2) cites examples of things that can be considered. As long as you follow this, you'll be fine from a GAO perspective. The only two protests I remember seeing on GSA Schedules was where agencies tried to impose FAR 15 procedures. If you keep it simple and straight (just do what 8.4 says and ignore 15), you'll be fine.

By Susan Marie Paolini on Friday, October 06, 2000 - 10:36 am:

Personal opinion only. I really appreciate the FSS schedules; just would like it to be easier to learn the best way to use them in practice.

The FCW article referenced by Eric O. raised an issue I have been struggling with, specifically, (his statement) that "there is no room for cost/technical trade-off decision with GSA MAS contract purchases."

What do people think about this Best Value/Lowest overall cost issue. If proper use of GSA schedules is indeed lowest overall cost (including warranty and other related cost issues), then by best value, suppose we mean LPTA. What I see in real life, though, includes evaluation including technical approach/relevant past experience - a price/technical trade-off.

Other thoughts:

Guidance on the FSS program is getting better, but surely needs work. Procedures for services (request at least three quotes if under max order) been clearly enunciated only relatively recently. Previously, my technical types would argue vehemently that there was no need ask for several quotes because the award was "already competitive". Issue of determining best value related to labor type and hours was not considered an issue to them.

I often ask my contractors and GSA POCs if they have samples of RFQ formats and evaluation factors that they feel are well written and could serve as guide. Not much luck.

I have run into at least one schedule published by the awardee which does not reflect GSA 3 quote procedure; rather, it explained that you "just place your order".

It is very difficult, if not impossible, to get a copy of the underlying contract terms and conditions on each schedule; for example: how does one administer the contract without knowing if the basic t/c are Part 12 or knowing various clauses you might need as authorities for modifications. Only way I can figure how to do it is make sure to print the RFP or call GSA for the basic contract. Is there a better way?

Also interested in how other people handle a requirement which is truly sole source when doing an FSS buy for services. Can't in good conscience waste people's time asking for quotes if requirement is a valid sole source.

As for upfront screening of companies mentioned above, this is very time consuming. Basically, you need to have a library of various schedules to know prices and labor categories (by the way, the categories are often different from contractor to contractor, so comparing expertise in an exercise in spreadsheets). Luckily, Contractors have been really good in forwarding the schedules to us (we have open invitation for people to provide them in our website).

Point of this is to learn, not criticize.

Sue

By Stan Livingstone on Friday, October 06, 2000 - 11:40 am:

Sue,

I don't know about the statement "there's no room for technical/cost tradeoffs...". Perhaps not a literal tradeoff process, but factors other than schedule contract price are permitted in making the selection decision. FAR 8.404 (b)(2)states "When selecting the supply or service representing the best value required for effective program performance, the ordering office may consider-
(i) Special features of the supply or service required for effective program performance,
and (vi) past performance...".

One easy way to find all the information you seek is through the GSA FSS website. You can access guidance and specifics of every schedule there, including unique ordering provisions.

Stan

By Vern Edwards on Friday, October 06, 2000 - 11:43 am:

Susan:

I must be missing something.

FAR 8.404(b)(2) and (3) clearly state that the selection of a schedule contractor may be based on "best value." FAR indicates that in the case of FSS orders the best value must be the choice that represents the lowest "overall cost." That strikes me as pretty clear.

If the offeror that I chose does not have the lowest prices, then I must cite some offsetting quality characteristics or delivery terms that make it the lowest overall cost solution, notwithstanding. That is not the same as a lowest-price, technically-acceptable solution. Even Eric seems to agree with that. As to whether people will cheat as he seems to think that they will, well--people will do what people will do. What can you do?

What the offsetting quality characteristics or delivery terms might be will depend on the nature of the products or services that you want to buy.

What am I missing?

As to your other concerns about FSS buying, I agree that the things could be clearer.

By Eric Ottinger on Friday, October 06, 2000 - 12:14 pm:

Vern,

At the risk of sounding like a lawyer--

I don't see a "bright line." These things just shade off into impropriety.

That puts working level troops like Sue in an uncomfortable position.

Explicit, unambiguous cheating isn't my concern.

Eric

By Vern Edwards on Friday, October 06, 2000 - 12:41 pm:

Eric:

I'm not sure what you mean when you say "these things shade off into impropriety." I'm not trying to be antagonistic, I just want to avoid a misunderstanding.

Frankly, I don't see why anyone should feel like they've been put in an uncomfortable position vis a vis FSS procedures. We cannot expect to get explicit and detailed procedural instructions for every action that we take, and even if we could we shouldn't want them. People are making best value decisions on placing FSS orders every day without any trouble whatsoever. I really don't understand what the problem is. I think that placing FSS orders is a piece of cake.

By Eric Ottinger on Friday, October 06, 2000 - 01:39 pm:

Vern,

I should note that I saw Dave Drabkin speak at an NCMA meeting last night. I believe Mr. Drabkin indicated (in a generally upbeat presentation) that there might be some concerns regarding competition for these vehicles.

I only bring this up to indicate that the issue is not unanticipated or unknown. I am sure that these vehicles will work great for the kind of truly commercial supplies and services contemplated by the statute.

Sue has two problems.

These vehicles have been advertised as an easy, painless way to get to a preferred source. Her technical customers walk in with an expectation. Sue knows that there is a big difference between the advertising in the subway and the exact terms and conditions in the contract. It isn’t quite that easy or painless.

If pricing is anywhere close, it doesn’t take a rocket scientist to game the system and demonstrate that the preferred source is really the lowest cost. A little bit of selective omission here, and extra emphasis there, will do the job. Susan is always going to be under some pressure to shade things just a bit to get to the preferred answer.

These vehicles are intended for generic, commercial products, but they are going to get stretched in “creative” ways to buy highly specialized, boutique services. That is going to create some problems.

You may not understand what I am trying to say Vern. But I think Sue does.

Sue,

I haven’t had any problem getting to the terms and conditions on-line.

Who is really the Contracting Officer for these things? I believe that it is the GSA Contracting Officer. How much help are we going to get from the GSA Contracting Officer if the contract gets into problems?

Eric

By Vern Edwards on Friday, October 06, 2000 - 02:26 pm:

Eric:

You have made the issue much clearer for me. Thankyou.

I don't think that there is anything new about the kinds of contractor selection pressures that you and Sue are talking about. They have been around for as long as I can remember.

COs have always been under pressure to find a way to get to the tech folks' preferred contractor. In my experience, some COs were bothered by this and some weren't. I was one of the ones who wasn't bothered. I do not see these kinds of issues as serious problems.

GSA has done a heck of a good job at finding ways to reduce the transaction costs of placing orders and getting the Government's work done. More stringent rules won't make Government contracting better. I have no doubt that some COs will abuse the system, or allow themselves to be persuaded or forced to abuse the system. That would happen no matter what system we have. Other COs will make pretty good decisions most of the time, but not all of the time.

By Ramon Jackson on Friday, October 06, 2000 - 11:05 pm:

Just another cautionary note (from someone having been on both sides) on the technical people pushing for a particular solution:

It works well when they base it on real experience and analysis. It is lousy when it is based on the last sales pitch out in the vendor's display trailer or trade show.

It often does not consider innovative options.

If not forced to consider and justify it can drive toward very poor or stagnant solutions. Most ideas are improved by being forced to consider them under a bit of fire (why "argument" in these forums is good).

I've known exactly what I needed to do a job from experience and hard consideration of options only to see it ruined in procurement. I cursed "supply clerks" every time I used the things. I've also seen, perhaps even guilty, of demands for a 286 computer in the Pentium age as a direct result of "expert" technical demands that were not well researched. Fair demands that the requestor has done requisite homework are not customer unfriendly.

By bob antonio on Saturday, October 07, 2000 - 07:10 am:

Ramon:

I agree with you. It is funny that you mention a display trailer. Years ago, I was walking outside of the National Center buildings in Crystal City and noticed a fellow with his car trunk open in serious discussion with an interested audience. You should add car trunks too.

By Ramon Jackson on Tuesday, October 10, 2000 - 07:17 am:

Bob, even car trunks are acceptable as long as they don't become a substitute for system engineering. Unfortunately even sophisticated technical people sometimes leave these sales pitches with new appreciation for a product (OK) and a tendency to convert an operational requirement to a specific brand name solution ( generally not OK).

This can turn into a real mess when the latest, slickest presentation builds a noisy support group within an agency. Controlled evaluation and competitive product testing in a development is then undermined by partisan lobbying for the brand name solution. Nobody is best served when this turns into line management complaints that an acquisition team isn't serving "my people" as a result of such lobbying in the face of clear analysis that the product does not best meet the stated operational requirement.

Banning the practice is hopeless and counterproductive. Agency wide education combined with checks and balances in the acquisition process can help, but not solve the problem. It is particularly dangerous in the early stages of a specific acquisition where these products will be candidates. It is not unknown for a program to change course into chaos as a result, particularly when high level officials (some of whom can't find the on/off switch of a desktop) become involved in these pitches.

Experience with this is one of my reasons for favoring the "separation of powers" scheme I've suggested for large, complex (particularly technology) acquisitions. It is a means of keeping the house tables straight and not rigged -- favoring analysis and reason over sometimes half baked and externally influenced wants.

I don't have hard data, as this is probably impossible to document. I have a strong belief though that a number of problematic technology acquisitions have fallen victim of expensive and useless diversions as a result of these influences to deliver something that does not work well or at all. Several have no "smoking gun," but many have a strong smell of smoke.