Eric:

You've got no apology coming. As usual you change the terms of the debate as you see fit. You brought up technical leveling, not me. You cited the Ask A Professor site, which stated that technical leveling was prohibited by FAR 15.306(e)(1). You and your professor were wrong, by your own terms. This is the payoff for your anarchic approach to reading and interpreting English.

You're right that none of this has anything to do with Du and MCR, so why did you bring it up.

By Eric Ottinger on Thursday, April 13, 2000 - 12:37 pm:

Vern,

For a fellow who has made a career in the contracting field, you can be wonderfully careless about details. Please go back and notice that I predicted that the Comp. Gen. would “cut the cord” with the terms “leveling” and “coaching.”

The lawyer at Ask a Professor was careful to distinguish his “new” definition of “leveling” consistent with the Part 15 Rewrite from the “old” definition (which, incidentally, carried the “multiple rounds of discussion” baggage). You don’t really have any problem with his new definition, and you should be gracious enough to say so.

Dynacs is a multiple rounds of discussion case. That definition of “leveling” (which as you have pointed out was a dead letter before the Rewrite) was explicitly eliminated by the Rewrite. Either Dynacs counsel has been on a very long sabbatical or he was desperate to find an issue for his protest.

None of this has any relevance to the Du and MCR cases, other than establishing that “spoon feeding” will be the preferred terminology from now on, not “leveling.”

Your argument is a sophomoric exercise in semantics, in both senses of the word “sophomoric.”

Accepting your apology in advance,

Eric

By Vern Edwards on Wednesday, April 12, 2000 - 09:28 am:

Some persons have claimed that the prohibition against technical leveling, which had appeared in paragraph 15.610(d) of the pre-Rewrite FAR, stills exists in the new FAR in subparagraph 15.306(e)(1). That subparagraph prohibits any discussion that "favors one offeror over another." At least two answers posted to DoD's "Ask A Professor" website have claimed that the prohibition against technical leveling still exists.

Last month, the GAO held that the FAR Part 15 Rewrite "eliminated" the prohibition against technical leveling. See Dynacs Engineering Company, Inc., B-284234; B-284234.2; B-284234.3, March 17, 2000.

Dynacs had accused NASA of conducting improper discussions by discussing the same weakness in an offeror's proposal in multiple rounds of discussion. (NASA denied the accusation.) The GAO denied the protest, and said, on page 4 of its decision:

"Solicitations issued after January 1, 1998, such as the one here, are governed by the Federal Acquisition Regulation (FAR), as amended by Federal Acquisition Circular (FAC) No. 97-02. The FAR part 15 rewrite included in this version of the regulation revised the provisions that apply when an agency is contracting using negotiated procedures, including those provisions governing exchanges with offerors after the receipt of proposals, as set forth in FAR § 15.306. The prior version of the FAR contained provisions that could be read to limit the extent to which agencies conducted ongoing discussions with an offeror. For example, agencies were prohibited from engaging in technical leveling (helping an offeror to bring its proposal up to the level of other proposals through successive rounds of discussions, such as by pointing out weaknesses resulting from the offeror's lack of diligence, competence, or inventiveness in preparing the proposal). See FAR § 15.610(d) (June 1997); Professional Servs. Group, Inc., B-274289.2, Dec. 19, 1996, 97-1 CPD ¶ 54 at 5. Agencies were also cautioned against reopening discussions after receipt of best and final offers unless it was clear that the information already available was inadequate to reasonably justify contractor selection and award. FAR § 15.611(c)(June 1997). These restrictions were eliminated by the FAR part 15 rewrite."

Italics added.

Some persons had predicted this outcome based on the plain language of FAR 15.306, which does not include the words "technical leveling," and does not prohibit an agency from helping an offeror to improve its proposal or from conducting multiple rounds of discussion. Indeed, FAR 15.306(d) expressly authorizes agencies to bargain with offerors for better terms than they included in their initial proposals and to suggest improvements.

In the past, some contracting officers conducted discussions by telling an offeror that something was wrong with its proposal, but refusing to tell them how to fix it, or by telling an offeror that its price was too high, but refusing to say by how much. The FAR had never required COs to conduct discussions in this way, and had never prohibited agencies from suggesting or requesting specific improvements in offerors' proposals. But many COs had come to believe that it did. This mistaken belief had hampered their ability to use discussions to bargain for better than initially-offered value.

The reaction to the Dynacs decision should not be to claim that the GAO has opened the door to patently unfair conduct, such as coaching a favorite contractor to a superior proposal through extensive discussions while effectively ignoring the others in the competitive range. [Technical leveling had actually entailed coaching everyone to the same level ("leveling") so that award could be made to the offeror proposing the lowest price.] Instead, the reaction should be that COs should use discussions to bargain with all offerors in the competitive range for the best offers that they can produce, in order to obtain the best possible value for the government.  

By Vern Edwards on Tuesday, April 11, 2000 - 08:10 pm:

Eric:

Why are you bringing up technical leveling? I haven't said anything about it in this "redux" thread. I've been talking about whether or not the FAR Council really meant to require COs to discuss "other aspects" of a proposal "that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal's potential for award."

It seems clear to me (and to Joel, Ramon, and V. Ryan) that the words of the FAR say that COs do have to discuss those "other aspects." And it also seems clear to me that the regulatory flexibility analysis said that that's what the FAR Council meant. But now the FAR Council thinks that wasn't such a good idea and they're claiming that they never meant that in the first place. I'm giving them the benefit of the doubt; the only other alternative is to conclude that they didn't know how to write what they meant to say.

(What I'd really like to know is whether the FAR Council changed its mind long before the Du protest or after the GAO called up and said, "Hey, I have to make a decision in this Du thing -- did you people really mean to require COs to discuss "other aspects"?)

Nevertheless, since you've brought up techncial leveling and seem to be saying that it is still prohibited under FAR 15.306(e), and since you've summoned your wingmen at the Ask A Professor site to back you up, it's my sad duty to inform you that the GAO has held that the FAR Part 15 Rewrite eliminated the prohibition against technical leveling. See Dynacs Engineering Company, Inc., B-284234; B-284234.2; B-284234.3, March 17, 2000.

Dynacs accused NASA of conducting improper discussions. The GAO denied the protest, saying, on page 4 of its decision:

"Solicitations issued after January 1, 1998, such as the one here, are governed by the Federal Acquisition Regulation (FAR), as amended by Federal Acquisition Circular (FAC) No. 97-02. The FAR part 15 rewrite included in this version of the regulation revised the provisions that apply when an agency is contracting using negotiated procedures, including those provisions governing exchanges with offerors after the receipt of proposals, as set forth in FAR § 15.306. The prior version of the FAR contained provisions that could be read to limit the extent to which agencies conducted ongoing discussions with an offeror. For example, agencies were prohibited from engaging in technical leveling (helping an offeror to bring its proposal up to the level of other proposals through successive rounds of discussions, such as by pointing out weaknesses resulting from the offeror's lack of diligence, competence, or inventiveness in preparing the proposal). See FAR § 15.610(d) (June 1997); Professional Servs. Group, Inc., B-274289.2, Dec. 19, 1996, 97-1 CPD ¶ 54 at 5. Agencies were also cautioned against reopening discussions after receipt of best and final offers unless it was clear that the information already available was inadequate to reasonably justify contractor selection and award. FAR § 15.611(c)(June 1997). These restrictions were eliminated by the FAR part 15 rewrite."

I added the italics in the last sentence.

(Okay, all you observers of the Anarchy School of Language and Case Interpretation get ready for the claim that this quote doesn't really say what it seems to say and that I've read the quoted passage out of context.)

Eric, I checked your Ask A Professor links. Your "professors" both claimed that FAR 15.306(e)(1) still prohibits technical leveling. Looks like they need to be more careful (or is it "constant") readers of the FAR. Maybe they got their information from the satellite broadcast.

P.S. I urge everyone to read the entire Dynacs decision. Read the footnotes, too. I wouldn't have Eric accuse me (as he has in the past) of editing my quotes just to prove my point. Careful, constant readers will be able to come to their own conclusions.

By Eric Ottinger on Tuesday, April 11, 2000 - 05:34 pm:

Vern,

I think we are all entitled to a presumption that we are not “artful dodgers.”

The constant reader can start with the satellite broadcast panel discussion which was done at the same time that the Part 15 Rewrite was published, proceed to the Du and MCR decisions, then proceed to the proposed FAR revision/clarification. There really aren’t any discontinuities. The concept of fairness in Part 15 was meant to subsume existing, common sense concepts of fairness.

Further, if you check the “Ask a Professor” site you will find two questions regarding “leveling” tied to the satellite broadcast. If you really think the broadcast was putting out bad information, you have to assume that 1) the panelists were not really in the know, 2) DoD didn’t care whether the panelists knew what they were talking about, 3) the lawyer at the “Ask a Professor” website was not in the know, and 4) the “Ask a Professor” answers went out without any double checking or oversight to make sure that the answer was consistent with the new policy.

http://askaprof.deskbook.wpafb.af.mil/normal/
qdetail.asp?cgiQuestionID=1175&Search_Text=leveling

http://askaprof.deskbook.wpafb.af.mil/normal/qdetail.asp?cgi
QuestionID=1249&Search_Text=leveling

“FAR 15.306(e)(1) clearly prohibits technical leveling, which means giving one offeror more help than others to make sure that offeror rises above other offerors. Rationale: This was always the intent of the "old" leveling concept and has not changed.”

(Personal Opinion: Although I don’t have any problem with the “Ask a Professor” definition, I think the Comp. Gen. has cut the cord with “leveling” and “coaching.” The term will be “spoon feeding” from now on.)

Note that the key point is the timing. Nothing was “nullified” because the policy was clear in the training materials put out at the same time the Part 15 rewrite was published.

In those aspects where the offeror demonstrates a lack of effort, a lack of creative imagination or a lack of specialized knowledge, the PCO should normally not be helping the offeror. These concepts really didn’t go away. It was simply assumed that we all understood what is fair and what is not fair without detailed regulatory guidance.

As for the “plain meaning” of the language, I don’t see your argument and neither did the eminent legal authorities interviewed by FCR. Wouldn’t it be more productive to convince these real experts and not waste your time on me. I don’t claim to be an expert.

Eric

By Eric Ottinger on Tuesday, April 11, 2000 - 05:18 pm:

V.

Nobody has demonstrated that the weaknesses cited in the Du case would have “materially enhanced” anything. As far as I can tell they were not “material” and probably ALTOGETHER TRIVIAL. This is an instance where the argument about theory has come totally unmoored from any grounding in the facts.

Not only can you comply with the FAR as written, you have substantial latitude to use your own good judgment.

You need to understand that the professoriat is up in arms because the GAO DECLINED to question the PCO’s judgement. By the same token, the GAO would have backed the PCO up if he had chosen to discuss those dinky little weaknesses.

(If hypothetically he had got down in the weeds with one offeror and gave another offeror the broad brush, there would, of course, be a problem.)

The bottom line is that the GAO has refused to question the good judgment of several PCO’s. It is only a few of our private-side legal pundits (and maybe the protest lawyers) who have any conceivable reason to be upset.

Frankly, if you want to read the “material” in “materially enhance” as any dinky-do comment that comes out of your evaluation process, you will probably live. Just make sure that you treat everyone equally.

Eric

Regardless of what anyone says, my interpretation of what the FAR says is that if I think that other aspects of a proposal could be improved to enhance materially the proposal's potential for award, then I shall discuss it. If that's not how the GAO wants me to interpret it, then they better tell the FAR council to make the change in the FAR. In the end, I have to rely on what I see, not what's in the minds of the FAR council. Melissa can say that the council intended to encourage the CO to discuss other aspects, but that's not what the FAR says.

By Vern Edwards on Monday, April 10, 2000 - 10:14 pm:

Eric:

By "public testimony" you mean that exchange between me and Melissa?!

Please! That was no "testimony." That was artful dodging.

The FAR Council either failed to express itself clearly or changed its mind after the Du decision, and that's all there is to it. Borrowing an expression from you, "the careful reader" will see it plain.

I'll let the FAR Council's words speak for themselves. The "careful readers" out there won't be fooled.

By Eric Ottinger on Monday, April 10, 2000 - 10:03 pm:

Vern: "Also, whose "public testimony" have I ignored and where can I find it? "

: Thu, 25 Feb 1999 15:10:59 -0500 (EST)

http://www.arnet.gov/Discussions/Water-Cooler/1158.html

If you wish to characterize this some other way, you are welcome. It speaks for itself.

Eric

By Ramon Jackson on Friday, April 7, 2000 - 08:27 am:

Yes, and if that open discussion is done in an open minded fact finding manner even my old reservations about coaching to the government's preconceived solutions could be minimized. The contractor could have an opportunity to confront the specifics of hits based on such preconceptions.

I'm afraid it is hopeless though. There is too much invested in the current system's security blankets. It is so much easier to just rest in a nest of complex rules than to trim them to a real necessary minimum and rely on professionalism and integrity. To use Eric's example in another way: "I know I crashed, but I was doing precisely a conservative 45 miles per hour and cannot be faulted."

By Vern Edwards on Friday, April 7, 2000 - 01:33 am:

Joel:

I'm with you. If the goal in source selection is to get the best value for the government, then COs should tell the offerors in the competitive range about everything that they could do to improve their proposals.

I urge my students to disclose everything about their evaluations of offerors' proposals. I tell them to give each offeror in the competitive range the government evaluation team's complete work product. Moreover, I tell them to tell each offeror what kinds of improvements that the government would like to see in its final proposal, but not to disclose the contents of any competing proposal. That's how to get best value for the taxpayer.

What's to be afraid of? Not only would such discussions enhance the competition among the most highly rated offerors, but it would eliminate any chance of a protest that the CO had failed to conduct meaningful discussions.

If, through such disclosure, an offeror discovers an error of fact or reasoning in the government's evaluation of its proposal, then the government will benefit from that discovery. If not, then the offeror will know exactly what the government thinks about its proposal and what it must change in order to improve its chances of winning.

Sadly, the FAR Council is again missing a real chance at acquisition reform by retreating to a stance of merely "encouraging" COs to discuss more than just significant weaknesses and deficiencies.

COs should include only the real contenders in the competitive range and then negotiate for the gold with each of them.

By joel hoffman on Thursday, April 6, 2000 - 11:22 pm:

Vern, for what it's worth I completely agree with you. I checked a lot of GAO decisions and other sources in the early 90's when I got heavily involved as my District's almost only negotiator for non-service contract, source selections. The sources ALL seemed to affirm that it was ok for the negotiator to "play it safe" during discussions. We were to discuss deficiencies and "significant weaknesses" or "significant disadvantages" which could eliminate an offer if not corrected. We were to be cautious not to "level" offers, etc., etc.

Hell, it was like pulling teeth just to eliminate anyone from the competitive range - between Counsel's and Contracting's dread fear of a protest! So we dragged offerors along who had no business in the competition. Wasted ours and their time and money. I believe I was the first one in our office to fight to eliminate the non-competitive offers (no real chance of award or required a complete new proposal or technical approach)

After FASA and FARA, I discerned a VERY distinctive, expressed intent by the FAR Committee to encourage, no - to REQUIRE - much more intensive bargaining. We may, in effect, level the offers, to seek to improve the terms to the Government. As long as we don't rob from Peter to improve Paul or don't favor Paul over Peter, I am basically loosed to bargain.

And wonder of wonders - we discovered offerors would much rather be cut early than be dragged along thinking they were competitive (this was already obvious to me anyway, as the negotiator). Contractors can move on to other business opportunities. This cooperation is particularly evident with the new 2 phase design-build selection procedures. In fact, by short-listing for phase 2, we are getting much more interest in phase 1!

Anyway, I still run into the conservative roadblocks.... Apparently this is still pervasive, as the GAO says "policy is the same." The FAR is in the process of being "clarified" to back-off from the once enthusiastic attempt to loosen up!

Don't tell me the old policy never changed - it just hasn't caught on yet!

Now we see the proposed "clarification" to protect the slow learners........ Happy Sails!

By Vern Edwards on Thursday, April 6, 2000 - 04:20 pm:

Eric:

It's good to know that you don't think that I'm the only dogmatic and inflexible self-proclaimed expert.

I think that the proper approach to interpreting a rule is to take the words of the rule as you find them and then determine whether there is any valid reason, such as case law, to believe that they mean something other than what they say. Does this approach fail in your eyes because it requires a too-literal reading of words? If so, what is the proper approach?

Let me ask you two questions that I hope you will answer:

(1) What do you think that the FAR Council meant when it said that it intended to "change" the rule to "require" COs to indicate or discuss "other aspects" of a proposal that could be improved?

(2) What do you think they meant by using the word "shall" in FAR 15.306(d)(3) with respect to "other aspects"?

Will you answer?

Also, whose "public testimony" have I ignored and where can I find it?

By Eric Ottinger on Thursday, April 6, 2000 - 03:16 pm:

Vern,

I had no intention of singling you out. There were other more prominent names involved.

Joe should read the previous thread to see other opinions.

Joe,

To reach Vern’s conclusion, you have to start with the assumption that our policy is a cook book and that we are given explicit and restrictive direction in Part 15.

If you believe the policy was always permissive and that we have been encouraged to be more forthcoming within that range of discretion (that many of us have been using for years), these superficial discontinuities resolve themselves.

Let’s say that the minimum speed is 45 MPH and the maximum speed is 70 MPH. It has been noted that most of you have been poking along at 50 MPH for fear that something bad will happen if you go any faster. The policy makers including the Comp. Gen. would prefer that you speed up a bit. It would be better if more of you would go 65 MPH.

The range is still 45 to 70 MPH but the average speed increases because the drivers are encourage to go faster within the acceptable range.

It should be noted that Vern gets to his position by dismissing the public testimony of persons who were involved in making the policy. Caveat Emptor.

Eric

By Vern Edwards on Thursday, April 6, 2000 - 02:28 pm:

Joe:

What the controversy was about was the proper interpretation of the rule about discussions during source selection, as it appears in FAR 15.306(d)(3).

In the final regulatory flexibility analysis that accompanied the FAR Part 15 Rewrite in the Federal Register, on Sept. 30, 1997, the FAR Council said that they had originally planned to stay with the then-existing rule about discussions (which had appeared in FAR 15.610), but had changed their minds and decided to require more robust discussions. Here's the pertinent quote from the Federal Register:

"Discussions. The initial proposed rule contained the existing FAR guidance regarding the type and amount of information that should be exchanged during discussions. In response to public comments, the second proposed rule requires a more robust exchange of information during discussions. The language requires the Government to identify, in addition to significant weaknesses and deficiencies, other aspects of an offeror's proposal that could be enhanced materially to improve the offeror's potential for award. This change should benefit all offerors, including small businesses, because it permits offerors to develop a better understanding of the Government's evaluation of their proposal, and permits them to optimize their potential for award."

63 FR 51229 (Sept. 30, 1997). Underlining added.

Here's what the FAR said, and still says:

"The contracting officer shall, subject to paragraphs (d)(4) and (e) of this section and 15.307(a), indicate to or discuss with each offeror still being considered for award, significant weaknesses, deficiencies, and other aspects of its proposal (such as cost, price, technical approach, past performance, and terms and conditions) that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal's potential for award."

Underlining and italics added.

Some of us interpreted the FAR Council's statement of intent in the Federal Register and the apparently clear FAR language of FAR 15.306(d)(3) to mean that COs were required to talk about more than just significant weaknesses and deficiencies, since that was what the FAR Council said.

However, notwithstanding the apparently clear language of FAR and the FAR Council's statement of intent, the GAO, in its decision in the matter of Du & Associates, Inc., B-280283.3, Dec. 22, 1998, concluded that the FAR Council had not intended to change the requirements for discussions:

"We recognize that the FAR rewrite could be read to limit the discretion of the contracting officer by requiring discussion of all aspects of the proposal 'that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal's potential for award.' We do not believe, however, that it was the intention of the rewrite to limit the contracting officer's discretion in this manner."

Huh? Let's see -- we've got new FAR language, declared by its authors to be a "change," which says the CO "shall... indicate to or discuss... other aspects," and an express statement from the FAR Council that this change of language was intended to "require" COs to discuss more than they had been required to discuss under the old rules, and the GAO comes along and says that despite the new language and the expression of intention, nothing had changed!

I wrote that the GAO had "nullified" the Rewrite. Now when Eric mentioned "self-proclaimed experts" he meant me (and maybe some others, I don't want to hog all the credit). He thinks I'm "dogmatic and inflexible." In this matter, I think of myself as just a dazed and confused reader of English.

Here's the new language being proposed by the FAR Council:

"At a minimum, the contracting officer must, subject to paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to or discuss with each offeror still being considered for award significant weaknesses, deficiencies, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the
offeror's proposal (such as cost, price, technical approach, past performance, and terms and conditions) that could, in the opinion of
the contracting officer, be altered or explained to enhance materially the proposal's potential for award."

Compare this to the current FAR. The FAR Council calls this a "clarification" rather than a change. (They are shameless.)

I don't know what happened within the FAR Council between Sept. 30, 1997, when they published the current rule and their statement of intention and the Dec. 22, 1998, when the GAO published the Du & Associates decision. Maybe they decided that the GAO had a better idea. But this controversy should teach everyone that when you read the FAR you learn what it says, but not what it means.

I think that the history of FAR 15.306(d)(3) and its predecessors provides a legitimate basis for criticizing the FAR Council efforts at regulation writing.

By Eric Ottinger on Thursday, April 6, 2000 - 12:55 pm:

Joe,

There was quite a bit of controversy on the Water Cooler last year. You may wish to revisit the thread for the entertainment value if nothing else.

Otherwise, I decline to answer your question on the grounds that it wouldn't be prudent.

There was an article in the Federal Contracts Report, but I think the FCR discussed the controversy without naming all of the participants.

It would be nice if the FAR revision puts an end to the controversy. But I expect that there will be a bit more commentary to the effect that the Part 15 Rewrite could have been real reform, but unfortunately the Government policy makers wimped out and we are back to business as usual.

I don't agree, but I never claimed to be an expert.

Eric

Who were the "self-proclaimed experts" and when did they proclaim themselves.

By Eric Otiinger on Thursday, April 6, 2000 - 12:15 pm:

There is a proposed amendment to the FAR clarifying Part 15. Consistent with Comp. Gen decisions in MCR Federal and Du & Associates, “The contracting officer also is encouraged to discuss other aspects of the offeror's proposal (such as cost, price, technical approach, past performance, and terms and conditions) that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal's potential for award. However, the contracting officer is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of contracting officer judgment.”

I guess this makes me happy. However, it was a lot of fun watching all of the self-proclaimed experts throwing rocks at the Part 15 rewrite team, the Comp. Gen. and each other.

http://www.contracts.ogc.doc.gov/cld/facs/farcase99-022.html