Source Selection Issues 13 18 18 1 18

GAO Bid Protest Statistics 2016 Protests Filed – 2789 (+6%) Merit Decisions - 616 Protests Sustained - 139 (22.5%) Hearings – 27 (2.51%) Unreasonable Technical Evaluations ● Key Personnel ● Disparate Evaluations Unreasonable Past Performance Evaluations ● Relevance ● Affiliates Ga

Unreasonable Cost & Pricing ● Cost Realism Ga Unreasonable Cost & Pricing ● Cost Realism ● Costs Consistent with Technical Approach Flawed Selection Decision ● Meaningful Evaluation and Document the Cost/Technical Trade Off Rationale

Who can be Considered for Selection? The On-Again, Off-Again, Responsibility on Organizational Conflicts of Interest ● Biased Ground Rules ● Unequal Access ● Impaired Objectivity

Preparing Specifications or Work Statements FAR 9.505-2

Providing Evaluation Services FAR 9.505-3

The Contracting Officer’s Responsibilities Towards Organizational Conflicts of Interest FAR 9.504

FAR – Contracting Officer’s Responsibility The Contracting Officer is directed to analyze acquisitions to identify potential OCIs early in process (9.504(a)(1)) avoid, neutralize, or mitigate significant potential conflicts before contract award (9.504(a)(2)) obtain advice of legal counsel, other specialists (9.504(b)) “Each individual contracting situation should be examined on the basis of its particular facts and the nature of the proposed contract. The exercise of common sense, good judgment, and sound discretion is required in both the decision on whether a significant potential conflict exists and, if it does, the development of an appropriate means for resolving it.” FAR 9.505

FAR – Contracting Officer’s Responsibility Prior to issuing a solicitation that might involve a significant conflict, the Contracting Officer is to recommend to head of contracting activity a course of action for resolving OCI (9.504(c)) In discharging these OCI requirements, Contracting Officers are counseled to avoid unnecessary delays, burdensome information requirements on potential offerors, and excessive documentation (FAR 9.504(d)) The Contracting Officer should document his or her analysis and judgment only when there is a substantive issue concerning a potential or actual conflict of interest (FAR 9.504(d))

FAR – Contracting Officer’s Responsibility Before withholding award [or taking other action that disqualifies an offeror], notify contractor to allow opportunity to respond (9.504(e)) The Contracting Officer shall award the contract to the apparent successful offeror, unless it is determined that there is a conflict of interest that cannot be avoided or mitigated. In that case, the Contracting Officer shall inform the offeror; provide the reasons for that determination; and allow the offeror a reasonable opportunity to respond (9.504(e))

FAR – Contracting Officer’s Responsibility If a conflict cannot be avoided or mitigated, the Contracting Officer may seek a waiver of the OCI, if it is in the best interests of the United States. (9.504(e)) The agency head or designee (not below the head of the contracting activity) may waive any general rule of the FARr on OCIs by determining that a waiver in this case would be in the Government’s interest. A request for waiver is to be in writing, and set forth the extent of the conflict.(9.503) The waiver request and decision becomes a part of the contract file (9.504(e))

THE END OF LPTA?

The End of LPTA? §813 National Defense Authorization Act for FY 2017 “LPTA has a clear, but limited place in the source selection best value continuum.” ASALT March 4, 2016 Memo LPTA is not to be used “in circumstances that would deny the department the benefits of cost and technical tradeoffs in the source selection process.” – NDAA FY 2017

The Benefits of Cost Technical Tradeoff ● Cost is not the deciding factor, but rather strengths the Government is willing to pay for - Strengths: ● Exceed contract requirements in a beneficial manner ● Increase likelihood of success and mission accomplishment ● Provide benefits the Government is willing to pay for

The (Perceived) Downsides of LPTA ● Technical contractor personnel with minimum qualifications and experience ● Contractors cut quality and costs in order to get the contract ● Large businesses at disadvantage, and small businesses often had to settle for a less qualified and inadequately staffed workforce who would work for the lower wages that made the contractor more price competitive for award (but with very slight profit)

§813 National Defense Authorization Act for FY 2017 Situations that Warrant LPTA Criteria ● DoD can comprehensively and clearly describe the minimum requirements in terms of performance objectives, and measures and standards to determine acceptability. ● DoD would recognize no (or minimal) value from a proposal that exceeded the minimum technical or performance requirements.

§813 National Defense Authorization Act for FY 2017 Situations that Warrant LPTA Criteria ● The proposed technical approaches will not require any (or much) subjective judgement by the source selection authorities. ● The source selection authority is confident that the other-than-lowest priced offers would not result in the identification of factors that could provide more value or benefit to the Government.

§813 National Defense Authorization Act for FY 2017 Situations that Warrant LPTA Criteria ● The Contracting Officer provides a written justification for the use of the LPTA criteria in the contract file. ● DoD determines that the lowest price reflects full life cycle costs, incl. maintenance and support.

● Contracts for personal protective equipment. §813 National Defense Authorization Act for FY 2017 Procurements that Cannot Apply the LPTA Criteria ● Contracts that predominantly seek knowledge-based professional services, such as IT, cybersecurity, and SETA services, advanced electronic testing, and audit or audit readiness services. ● Contracts for personal protective equipment.

§813 National Defense Authorization Act for FY 2017 Procurements that Cannot Apply the LPTA Criteria ● Contracts for knowledge-based training, or logistics services in contingency operations or other operations outside the United States, including Iraq and Afghanistan. Also: DoD is to issue an annual report, for the next four years, on the use of the LPTA criterion for procurements in excess of $10M.

● The Patent Ambiguity Exception to Contra Proferentem and the Rule of Blue and Gold ● Straight answers to vendor questions ● Amendments to Clarify

● Realistic Competitive Ranges ● Meaningful Discussions ● Burdensome Cost and Pricing Data ● Commercial Item Determinations ● Smart Debriefings

Giving a better technical evaluation to contractors that offer more data rights: seems unfair!

Case Study: Applying the Stated Criteria Bid Protest of Marquette Systems “Best Value” RFQ for cardiographs HP selected, although more expensive, but HP dial configuration similar to Government’s current equipment, and therefore would require less train – up time for Government personnel to operate

Case Study – The Boeing Tanker Protest The Air Force, in making the award decision, did not assess the relative merits of the proposals in accordance with the evaluation criteria identified in the solicitation, which provided for a relative order of importance for the various technical requirements. GAO Press Release on Sustaining Boeing’s Protest of the tanker procurement, 19 June 2008

Tradeoff Analysis The Air Force’s use as a key discriminator, that Northrop Grumman exceeded a key performance parameter objective on aerial refueling to a greater degree than Boeing, violated the RFP provision that no consideration will be provided for exceeding the objective. GAO Press Release on Sustaining Boeing’s Protest of the tanker procurement, 19 June 2008

Tradeoff Analysis The Air Force conducted misleading and unequal discussions with Boeing, advising that it had met the standard, and then changing its decision, but not re-opening discussions with Boeing. GAO Press Release on Sustaining Boeing’s Protest of the tanker procurement, 19 June 2008

Tradeoff Analysis The Air Force unreasonably determined that Northrop Grumman’s declination to support the Air Force to achieve organic depot level maintenance was an “administrative oversight,” and not a refusal to agree to material solicitation requirement. GAO Press Release on Sustaining Boeing’s Protest of the tanker procurement, 19 June 2008