FAR Part 15 Rewrite

FAR PART 15 REWRITE

Seminar presented by
Kenneth Brody

MAJOR POLICY SHIFTS - The Pendulum Swings Again

  • Launched In January, 1998 as Part of The Overhaul of the Procurement Regulations During the Most Recent Era of Procurement Reform
  • Emphasis on Conducting Procurements "Efficiently" From the Buyers' Perspective By Reducing Size of Competition and Conducting Fewer Discussions
  • Tensions Between Competing Policies of Promoting Efficiency and Competition

SOME OF THE MAJOR CHANGES:

  • Shift in Competitive Range Policy to Limit the Number of Offerors To Allow Efficient Discussions
  • Revisions in the Handling and Definition of Discussions to Eliminate "Rounds of Discussions"
  • Limiting or Completely Eliminating the Need for BAFOs
  • Greater Discretion Vested With Contracting Officers
  • More Emphasis on Past Performance Than Ever Before
  • Emphasis on Oral Presentations; Deemphasis on Review of Written Proposals
  • Encourage Communications with Industry Prior to Issuance of RFP

REVISED PART 15 STRUCTURE

15.1 - Source Selection Processes and Technique

15.2 - Solicitation and Receipt of Proposals and Information

15.3 - Source Selection

15.4 - Contract Pricing

15.5 - Pre-Award, Award and Post Award Notifications, Debriefings, Protests and Mistakes

15.6 - Unsolicited Proposals

IS THE REWRITE OF FAR 15 REALLY WORKING?

SOME OF THE COMPLAINTS FROM ANECDOTAL EXPERIENCES

Contracting Officers Are Emphasizing Expediency At The Expense Of Fairness

Reform Generally Favors Incumbents At the Expense Of New Small Businesses

Too Much Emphasis On Short And Superficial Oral Presentations

No Guidelines On How To Conduct A Meaningful Cost-technical Trade off Analysis In A Best Value Procurement

Too Much Emphasis on Unreliable Past Performance Information

Government Is Not Implementing Those Aspects of The Reforms That Require Initiative On The Government's Part

E.g., Seeking Information From Industry To Enhance The Government's Understanding And Ability to Obtain Supplies and Services

15.1 Source Selection Process and Techniques

  • Best Value Continuum (15.101)
  • Trade-off Process Between Cost And Technical Abilities Not Well Defined (15.101-1)

    No Clear Guidelines On How To Document and Justify A Trade off Analysis

    Net result:

    Is It Easy To Direct Awards To Preferred Offerors Even When They Are Overpriced?

  • Expanded use of Oral Presentations in Place of Written Proposals (15.102)

    Net result:

    Is Clearly More Efficient Than Cumbersome Written Proposals

    But Does A Company's Performance During An Oral Pop quiz Distort It True Value?

15.2 Solicitation and Receipt of Proposals and Information

  • Exchanges with industry encouraged
  • Advisory downselect multi-step process
    • Should help businesses perform a reality check

But Are These Exchanger Really Happening?

Defective Solicitations Still Seem To Be A Major Problem In Certain Areas Of Procurement - a problem which typically favors incumbents

There Have Been Complaints That the Government Is Reluctant To Entertain Suggestions For Improving Solicitations

15.3 Source Selection

  • Objective is to select "best value" (15.302)
    • But How Is That determined?
    • No Clear Guidelines on Cost Technical trade off
    • Analyses
    • Just Like the Old System?
  • Evaluation Factors (15.304)
    • Price
    • Quality
    • Past Performance
  • Proposal Evaluation (15.305)
    • Cost or price evaluation

      Normally in fixed price contracting, comparison of proposed prices will satisfy need for price analysis and cost analysis will not be necessary

      Cost realism when contracting on cost reimbursement basis

    • Past Performance Evaluation
      Past Performance Is Becoming A More Dominant Evaluation Factor

      It Is Now Common for Past Performance To Be the Most Important Evaluation Factor

      Is This Wise?

      The Government Is Still Having Significant Difficulty In Gathering Accurate and Reliable Past Performance Information Which Undoubtedly Affects The Integrity Of The Process As Past Performance Becomes A Dominant Evaluation Factor

    • Technical Evaluation
      Is Still Required, But Past Performance is often Being Treated As A "Technical" Evaluation Factor

15.5 Pre-Award, Award, and Post-Award Notifications, Debriefings, Protests and Mistakes

  • Availability of Pre-Award debriefings for offerors' eliminated from competitive range
    • Can wait to post-award
    • Government can delay for "compelling reason"
    • Required Post-Award debriefing
    • Minimum disclosure requirements include overall evaluated cost and technical rating of successful offeror and debriefed offeror

      Intended To Defuse Potential Protests - But It Only Works If The Government Is Willing To Share Useful Information Regarding Its Evaluation Process

    • Timely request for required debriefing protects right to have extra time to file protest and obtain stay of contracting performance
    • Request for debriefing should be automatic
    • Must be received by government within three days of notice to disappointed offeror

    Changes in Rules governing Exchanges with Offerors After Receipt of Proposals (15.306.307)

  • New Concept of Communications Before Commencement of Formal Discussions (15.306(a-b))
    • Clarification
    • Communications before establishment of competitive ranges(15.306(c))
  • Competitive Range Issue
  • Discussions with offerors after establishment of the competitive range (15.306(d))
  • Competitive Range Issue
  • Discussions with offerors after establishment of the competitive range (15.306(d))
  • Concept of BAFOs Eliminated (15.307)

NEW CONCEPT OF COMMUNICATIONS (FAR 15.306(A) AND 15.306 (B))PRIOR TO ESTABLISHING COMPETITIVE RANGE

  • New Policy of Encouraging "Communications" With Select Offerors to Facilitate Award Based on Initial Proposals
  • If the Government Intends To Award Based on Initial Proposal and Does Not Intend to Establish a competitive Range, It May Conduct Communications" with Select Offerors (15.306 (a))

    Purpose of these communications is to "resolve minor or clerical errors or to clarify certain aspects of proposal," e.g. relevancy of past performance information; in order to facilitate award based on initial proposals without the need of having to open discussions with all offerors

    Conducting these communications with only some offerors is fair to the others because changes based on communications are unallowable except to correct mistakes

    Potential For Abuse - Favored offerors are allowed to use these communications as a way of changing their proposal under the guise of resolving ambiguities or other concerns

  • If the Government Does Not Intend to Award on Initial Proposals, It May Also Conduct Initial Communications With Offerors Whose Exclusion From The Competitive Range is Uncertain Prior to the Formal Establishment of a Competitive Range (15.306(b))
  • Purpose of These Communications is to Enhance Government's Understanding of Proposals for The Purpose of Determining Whether a Proposal Should Be Placed In The Competitive Range

COMPETITIVE RANGE ISSUES (FAR 15.306))

  • Government Has Established New Ways to Reduce the Number of Offerors in the Competitive Range
  • New standard: WHEN IN DOUBT YOUR OUT"
  • Limiting Competitive Range During the Evaluation Phase (15.306(c)
    • The C.O. may limit the number of proposals that would otherwise be included in the competitive range for purposes of "efficiency" there is no defined breakpoint, i.e., you could be "competitive" but still excluded from the competitive range because your standing is not within the breakpoint
    • "Highly Rated" Proposals May Be Eliminated From Competitive Range "For Purposes of Efficiency"

    This potentially represents a radical departure from the old standard of "all proposals that have a reasonable change of selection"

    The common complaint here is that the Government is arbitrarily eliminating sound offerors in order to reduce its own paperwork - Expedient reduction in number of qualified offerors inevitably costs the taxpayers something

    • Companies Can Be Eliminated From the Competitive Range after Discussions Commence Without An Opportunity to Submit a Revised Proposal (15.307)
    • Offerors Excluded From the Competitive Range May Request a Debriefing - But The May Not Necessarily Get One Until After Award

DISCUSSIONS WITH OFFERORS AFTER ESTABLISHMENT OF THE COMPETITIVE RANGE (FAR 15.306(d), 15.306L (E), 15.307)

  • Scope - "Significant Weakness, Deficiencies and Other Aspects of Proposal That Could be Altered to Materially Enhance Potential For Award
    • Under the current version of the FAR, discussions must be "meaningful" - this broad requirement may now be eliminated Technical leveling and transfusion, and release of offeror's price still prohibited
    • However auctioning is not specifically prohibited
    • Government may inform offeror that its price is too high or too low and the government's supporting analysis

    Key new provision: Where solicitation provides that evaluation credit will be given for technical solutions exceeding any mandatory minimums, the government may negotiate with offerors for increased performance beyond the minimums and may suggest to offerors that they exceeded the minimums that their proposals would be more competitive if the excesses were removed and the offered price decreased

  • Elimination of "Rounds of Discussions" C.O. now only required to conduct discussions once with all offerors in the competitive range However, C.O. can now conduct extra rounds of discussions with select offerors

CONCEPT OF BAFOS ELIMINATED

  • BAFOS Now Replaced by "Proposal Revisions" (FAR 15.307)
  • C.O. May Eliminate Company From Competitive Range After Commencing Discussions With Company Prior to Requesting and Receiving A Proposal Revision
  • C.O. Must Ask For Final Proposal Revisions From Offerors Left in Competitive Range (15.307)

    Still Requirement for Common Cut-off-Date

  • This is still different from current requirement of discussions with and BAFO from everyone with whom the Government has conducted discussions
  • Potential Problems/Issues

    Offeror does not necessarily have the right to revise its proposal after discussions if it is "no longer considered to be among the most highly rated offerors" (15.306 (d)(4)- THEN WHAT IS THE PURPOSE OF THE DISCUSSIONS AND HOW DOES THE GOVERNMENT RATE THE OFFEROR WITHOUT A PROPOSAL REVISION?

    Unfettered C.O. discretion in conducting discussions with select offerors and loose rules on requiring proposal revisions increases risk of foul-ups, confusion, and favoritism

    Government deadlines will unfairly drive outcome of competition by discouraging receipt of revised proposals from offerors that are in the competitive range