131 Chapters
Medium 9781567263947

Exhibit 15-1: Material from the Website of the Armed Services Board of Contract Appeals (www.asbca.mil)

Solloway, Charles D. Berrett-Koehler Publishers ePub

Government acquisition laws and regulations establish a framework for buyer and seller relationships whenever the government enters into the private marketplace. These laws and regulations often give extraordinary rights to the contracting parties. For example, the government may retain the right to unilaterally change the contract. On the other side of the coin, with few exceptions, a contractor has a right to compete for a government contract and has also been granted the right to protest to the Comptroller General if it feels it is not being treated fairly when competing for a contract.

Along the same lines, the government contracting officer has the right to reach a “final decision” on matters of controversy that might arise during the course of a contract, and the contractor has been granted rights under the Contract Disputes Act to appeal those decisions to an especially established contract appeal board or to the Court of Federal Claims.

It has been said that the United States is a litigious society, and government contract matters have a place in that characterization. Even as this is being written, hundreds, perhaps even thousands, of government personnel and contractor personnel are preparing for litigation, actively involved in litigation, or preparing appeals for matters that have already been litigated. Litigation is a very expensive and time-consuming process, and contract managers should work to avoid it. Abraham Lincoln once gave this advice to fellow lawyers: “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”

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Chapter 27: Adherence to the Rating Methodology

Solloway, Charles D. Berrett-Koehler Publishers ePub

Acquisition officials are generally not required to evaluate proposals using the methodology described in the source selection plan. Both the Comptroller General and the Court of Federal Claims have recognized that source selection plans “generally do not give outside parties any rights.” Thus, if a particular source selection plan calls for an evaluation methodology using numbers, source selection officials can later decide to evaluate merit factors using adjectives instead of numbers.

One exception to this general rule would be when the rating methodology is described in the solicitation (see Appendix II for an example). In that case, a promise has been made and should be kept unless the solicitation is amended and contractors are given an opportunity to resubmit any proposals already received. In Frank E. Basil, Inc., B-238354, May 22, 1990, the Comp Gen opined that “agencies do not have the discretion to announce in a solicitation that one evaluation plan will be used and then follow another in the actual evaluation” unless offerors are informed and given the “opportunity to restructure their proposals with the new evaluation scheme in mind.”

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CHAPTER 9: Establishing Proposal Evaluation Factors

Solloway, Charles D. Berrett-Koehler Publishers ePub

Price or cost must, by law, be a consideration in all government source selections. But in addition to price or cost, procurement laws and regulations have long permitted consideration of non-cost factors. As previously stated, these factors are most commonly referred to as merit factors or technical factors. These non-cost evaluation factors may be used in both lowest price, technically acceptable (LPTA) and trade-off procurements.

While both the regulations and legal precedent give government officials great latitude in choosing evaluation factors, FAR 15.304 does require that the following be addressed:

Quality. Quality may be addressed through such factors as past performance, technical excellence, personnel, management capability, and experience.

Past performance. The FAR provides that this requirement may be waived if the contracting officer documents why an evaluation of past performance would not be appropriate.

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Exhibit 20-1: FAR 4.803 Contents of Contract Files

Solloway, Charles D. Berrett-Koehler Publishers ePub

The Federal Acquisition Regulation (FAR) addresses the contract file with some specificity, but it does not address the quality of the documentation. It is important that contract management activities be accurately documented during the course of the contract. In the event of later disputes, fraud investigations, or other such matters, the contract file documentation can make the difference in how the matter is resolved.

FAR 4.803 (Exhibit 20-1) gives examples of the contents of contract files, dividing these examples into three categories:

•Contracting office files, which pertain to the office that procured the supply or service

•Contract administration office files, which pertain to the office that manages the contract

•Paying office files.

As previously discussed, the contracting office and the contract administration office may be the same office.

No. It shows some examples but omits others. For example, it covers security matters but not safety matters, and there is no mention of claims and disputes. It does not address award fee determinations. These kinds of issues are addressed only generally in a catch-all phrase: “Any additional documents on which action was taken or that reflect actions by the contract administration office pertinent to the contract.”

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Chapter 43: The Advisory Multistep Selection Process

Solloway, Charles D. Berrett-Koehler Publishers ePub

Over the years, agencies have used a number of source selection processes that allow or encourage the winnowing down of potential competing contractors before the government requests and receives full-blown proposals. One of these processes is the Brooks Act selection process for architect-engineer services, which will be discussed in Chapter 44. Another was a four-step selection process once used by the Department of Defense for major systems acquisitions. Contractors would be eliminated from the process during earlier steps before spending the large sum of money needed to prepare a complete cost proposal. Still another is a system in use by the Federal Aviation Agency (which has its own acquisition management system regulations that differ from the FAR) in which one or more screening information requests (SIRs) may be used to narrow the field of competitors.

When the FAR was being amended in 1997, the government planned to provide for two multistep source selection processes. Both would solicit a limited amount of information from contractors. One process was an advisory process in which the agency would perform an evaluation of solicited information, then inform potential offerors whether the government considered them to be viable competitors. Even if the government did not consider them to be viable competitors, they were still permitted to participate in the planned acquisition if they saw fit to do so. In the other process, called a mandatory process, an offeror that was informed that it was not considered to be a viable competitor could not continue to participate in the planned acquisition as a prime contractor.

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