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FedSubK Feature: The Acquisition Lifecycle of Service Contracts - Phase 2 Contract Formation and Source Selection

Updated: May 4

This month we continue with an overview of the second phase of the acquisition lifecycle for Federal service contracts; Contract Formation and Source Selection (or “Award” Phase). (NOTE: If you missed last month, you can find Part 1 here.)


We will talk about each subactivity in this phase but first, let’s remind everyone of the lifecycle of a typical Federal services contract valued over the Simplified Acquisition Threshold (or “SAT,” presently $250,000).


 Figure 1 – Acquisition Lifecycle



Contract Formation & Source Selection (Award)

The Contract Formation and Source Selection (Award) phase begins at the point when Acquisition Planning is completed, and the method of procurement has been established. Tasks in this phase are shown below.


Figure 2 – Steps in the Contract Formation & Source Selection (Award) Phase



Legend: I = Integrated Project Team, P = Project Management Office / Requestor, and A = Acquisition Office


These tasks will culminate in an awarded contract (or contracts) and a path that is free of obstacles for the awardee to start contract performance.


Let’s go over a few key tasks in this phase and their impacts on you, the potential offeror.


Pre-Solicitation Notice (“Notice of Proposed Contract Action” or “Advance Notice”) (FAR Subpart 5.203)

Agencies must publish a Pre-Solicitation Notice in the Contract Opportunities section of SAM.gov at least 15 calendar days before the solicitation is issued, or before issuing a solicitation or proposed contract action the Government intends to solicit and negotiate with only one source (see FAR Subpart 6.302-1).


This notice period may be shorter than 15 calendar days, at the discretion of the Contracting Officer (CO/KO) when acquiring commercial products or commercial services. The period can also be shorter when the CO/KO uses the combined synopsis and solicitation procedure outlined in FAR Subpart 12.603. (Note: See the FedSubK Feature “Navigating Federal Contract Opportunity Notices for more info.)


The Pre-Solicitation Notice is important because it–

  • Gives a summary of the upcoming project,

  • Discloses the acquisition strategy to be used in terms of competition and contract type,

  • Provides the estimated date for issuance of the solicitation to the public and the response time, and

  • Outlines other special instructions such as pre-proposal conferences planned.

From this notice alone, many businesses can make their go/no-go decisions on whether to propose.


For the Government, this 15-day period is crunch time. It’s when final approvals are obtained to release the documents to the public. If something comes up (and it always seems to), the 15 days may be extended for any length of time by the Government without further notice to the public. However, it is always in the Government’s best interest to ensure its competition pool knows when the solicitation will be published. The solicitation issuance date in the notice is an estimated release date.


For sole source actions offered to the Small Business Administration (SBA) 8(a) Business Development Program, a pre-solicitation notice is NOT required.


Solicitation Issuance

Once at least 15 days have passed, the solicitation will be uploaded in the GPE under a separate notice. This notice will contain a synopsis of the project along with solicitation documents and all attachments made available for download by potential offerors. Now the real fun begins because the clock is ticking!


(See FedSubK Snapshot “Finding Your Way Around a Federal Solicitation” for more info about where to find solicitation response times and instructions to ask questions, seek clarification, and how to format and submit proposals.)


You’ve got a lot of moving parts once the RFP goes “live.” Here are some key things, from a CO/KO perspective, that offerors need to keep in mind as they develop their proposal.


#1 - Know the Rules for Government Exchanges with Industry Before Receipt of Proposals (FAR Subpart 15.201)

Exchanges of information between the Government and Industry are encouraged. However, any exchange must be consistent with the procurement integrity requirements of FAR Subpart 3.104. This includes not only exchanges but also disclosure, protection, and marking of contractor proposal information and source selection information.


Exchanges after issuance of the solicitation but before receipt of proposals are used by the Government to improve potential offerors’ understanding of requirements and allow them the chance to determine their ability to meet those requirements. These exchanges often take the form of questions from industry on RFP documents, answers in response from the Government, and pre-proposal conferences. The CO/KO oversees and controls these exchanges.


Draft RFPs for industry input are considered part of the market research process under acquisition planning.


#2 - Watch for Amendments! (FAR Subpart 15.206)

Changes to the RFP documents are made by formal amendment to the solicitation before the established time and date for receipt of proposals. Amendments must provide sufficient time for potential offerors to digest changes and update proposals. Each amendment will also be announced with its own notice and published in the GPE. Amendment notices will provide a synopsis of changes made.


Amendments can also be issued after the close of receipt of offers/proposals. However, per subparagraph (e) of the referenced FAR Subpart, if the CO/KO determines that such an amendment “...is so substantial as to exceed what prospective offerors reasonably could have anticipated so that additional sources likely would have submitted offers had the substance of the amendment been known to them”, the CO/KO must cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.  


An oral notice may also be used when time is of the essence, which is then formalized by a written amendment issued by the CO/KO.


The worst possible thing is to finish a proposal and realize you haven’t taken an amendment into account. Failure to acknowledge an amendment can be grounds to eliminate your proposal from consideration right out of the gate!


#3 - Understand the Basics of Different Source Selection Techniques (FAR Subpart 15.1)


Techniques for the selection of sources under competitive procurements fall within a range called the Best Value Continuum. This range equates to the Government’s perceived risk of unsuccessful performance which is then translated into the prioritization of technical factors and cost or price factors and their individual and collective importance.


An agency may use only one or a combination of the Tradeoff Process and the Lowest Price Technically Acceptable Process to arrive at the determination of the best value for the Government. The characteristics of each are found in the table below.

Tradeoff Process

Lowest Price Technically Acceptable Process

Allows selection of other than the lowest-priced or highest technically rated offeror using tradeoffs between technical superiority and cost or price, as described in the solicitation.

Requires selection of the technically acceptable proposal with the lowest evaluated price

The technical factors and significant subfactors that affect contract award and their relative importance are disclosed in the RFP.

 

The RFP also includes a statement whether all evaluation factor factors other than cost or price (aka “technical factors” when combined, are–

  • Significantly more important than cost or price,

  • Approximately equal to cost or price, or

  • Significantly less important than cost or price.

Technical factors are not ranked by relative importance.

 

Failure of a proposal to meet the minimum technical acceptability standard of any technical factor or subfactor automatically eliminates the proposal from further consideration.

 

 

Past performance is a required evaluation factor.

Past performance is not a required evaluation factor.

Factors and significant subfactors establish a list of criteria describing required or desired skills and experience against which the proposal is subjectively evaluated.

Factors and significant subfactors establish objective thresholds of technical acceptability (measures) against which the proposal is evaluated.

Technical ratings are subjective and use a rating scale of adjectival descriptors, colors, numerical weights, or original rankings. Cost or Price is evaluated, not rated.

Technical ratings are objective and use a go/no-go, pass/fail, or acceptable/unacceptable scale. Cost or Price is evaluated, not rated.

Provides the greatest flexibility for the Government to achieve the best balance of technical and cost/price acceptability.

Provides the ability to achieve a minimum technical acceptability level on all technical factors and significant subfactors and achieve the lowest evaluated price.

Any perceived benefits of a higher-priced proposal require supporting documentation to quantify the payment of any additional cost in terms of specific benefits to the Government.

Only the lowest-priced proposal of the proposals found to be technically acceptable is considered for award.

The point-by-point tradeoff decision is documented and reviewed as required by FAR, any agency FAR supplement, and agency policy.

Tradeoffs are not allowed.


#4 - Award Without Discussions or Competitive Range? (FAR Subpart 15.306(c))

The Government has a choice. It can choose to make a contract award decision based solely on initial proposals and not engage with offerors, or it can establish a competitive range to conduct discussions (aka, negotiations) before an award is made.


What’s a competitive range? Based on the ratings of each proposal against all evaluation criteria, the CO/KO will establish a competitive range comprised of all of the most highly rated proposals; those most likely to receive the contract award. It’s a down-selection. The competitive range can be further reduced for purposes of efficiency when documented with the rationale why and the solicitation so states.


The solicitation will disclose the Government’s choice. This choice is important. An award without discussions means you get one shot – the first shot – to get your proposal right. There are no fixes or changes allowed later. However, even when the Government chooses “award without discussions,” it always reserves the right to open discussions with offerors if it is in the Government’s best interest to do so. But don’t rely on it happening. If the Government can avoid discussions before the award, it will; trust me on that. It saves weeks of work and documentation when discussions are avoided.


Now that we understand the processes that can be used in source selection, let’s talk about how it gets accomplished.


Source Selection Evaluation Board (SSEB). Before the solicitation ever hit the street, the Source Selection Evaluation Board (SSEB) members were chosen. Who are those people? Let’s talk about that and what they do in the evaluation in general.


Technical Evaluation Board (TEB). Comprised of technical and subject matter experts familiar with the work to be performed who are trained in the technical evaluation processes to be used, and supported by the CO/KO and the Small Business Specialist, who assist when subcontract performance is included as an evaluation factor. The TEB chair is most often the project lead who will oversee the daily work during contract performance AND will likely be assigned as the Contracting Officer’s Representative (COR). (See FedSubK Feature: “Hate the Game, Not the Players: Know the Roles in Federal Contracting” for more about the roles in Federal contracting.)


(HINT: If the Government held a pre-proposal conference, members of the TEB were likely involved in the Government presentations. You likely introduced yourself or engaged in chit-chat. But don’t think you can ask, and Government personnel will tell you they are on the TEB; they are required to sign a Non-Disclosure Agreement to participate. If someone tells you they are a TEB member, report it to the CO/KO immediately.)


The technical evaluation is completed fully independent of the price evaluation. The TEB membership is provided only with a copy of those portions of the proposals that address the technical factors only; the TEB is not privy to the costs or prices proposed at any time during the evaluation. Each member of the TEB first completes an independent individual evaluation of each proposal. Then the TEB meets to agree on a single consensus evaluation as a group; there is no voting.

  • Tradeoff Process – TEB members document in detail the strengths, weaknesses, significant weaknesses, and deficiencies of each proposal against the evaluation criteria disclosed in the solicitation and apply a rating.

  • LPTA Process – After comparing the technical proposal to the measure for each factor and significant subfactor an objective rating is given (i.e., pass/fail).


The output of the TEB is an evaluation report of initial proposals supported by individual and consensus rating sheets for each technical proposal along with a list of any questions the TEB may have for offerors about their technical proposal.


Price Evaluation. Price evaluation is typically performed by the CO/KO with support from other subject matter experts such as a cost estimator, data analyst, auditor (and audit report), or cost/price analyst. Price is not rated but evaluated according to the solicitation. That evaluation is most often based on competition which is used to establish price reasonableness. However, in some situations, cost analysis may be required when prices appear skewed dramatically between offerors or when a cost-reimbursement contract is being used. In the case of large solicitations or those with multiple awards, a Price Evaluation Board (PEB) may be seated to streamline the price evaluation process. A full discussion of the price and cost analysis techniques that the Government may use are found in FAR Subpart 15.404 and 15.407, in case you need a sleep aid some night.


While all this evaluation is going on, it’s a waiting game. But there are a couple more things about the process to know.


#1 - What Exchanges Can Occur with the Government after Submission of Proposals (FAR Subpart 15.306)

[My advice…don’t pick up the phone and start bugging the CO/KO about what they thought of your proposal, ask when the selection will be done or a status update, or remind them of the proposal period that is ticking away. One, they will definitely remember you, and not in a good way. Two, they can’t tell you anything.] There are, however, three (3) types of exchanges that can occur with the Government after you submit your proposal. They are:

  • Clarifications – clarify only certain aspects or resolve minor or clerical errors.

  • Communications before the establishment of the competitive range (discussed below) – used to address adverse past performance information to which the offeror has not had the opportunity to respond.

  • Exchanges after establishment of the competitive range – these are negotiations (aka, Discussions) tailored to each proposal.


#2 - Negotiations (Discussions)

After the initial proposal evaluations are complete, negotiations are exchanges that are undertaken with the intent of allowing the offeror to revise its proposal. At a minimum, the CO/KO must discuss with each offeror still being considered for award any deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The CO/KO is encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the CO/KO, be altered or explained such that it materially enhances the proposal’s potential for award. However, the CO/KO is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of the CO/KO’s judgment.


In discussing other aspects of the proposal, the Government may, in situations where the solicitation stated that evaluation credit would be given for technical solutions exceeding any mandatory minimums, negotiate with offerors for increased performance beyond any mandatory minimums, and the Government may suggest to offerors that have exceeded any mandatory minimums (in ways that are not integral to the design), that their proposals would be more competitive if the excesses were removed and the offered price decreased.


During all exchanges with industry, Government personnel need to exercise caution so as not to engage in any conduct or communications that-

  • Favors one offeror over another,

  • Reveals an offeror's technical solution,

  • Reveals an offeror’s price without that offeror’s permission,

  • Reveals the names of individuals supplying reference information about an offeror’s past performance, or

  • Knowingly furnish protected source selection information (i.e., IGCE, acquisition strategy discussions, identities of evaluators, etc.).


#3 - Proposal Revisions (FAR Subpart 15.307)

Should the Government decide to establish a competitive range, proposal revisions may be requested in response to the Government’s initial evaluation findings. Every offeror still included in the competitive range will have the opportunity to provide a proposal revision. After negotiations, the Government will allow offerors to submit a Final Proposal Revision (FPR). Typically, the Government will set a firm date/time for the FPR submission.


We are at the point in the process where we need a drum roll, please. A DECISION!


Source Selection Decision (FAR Subpart 15.308).

Negotiations are done, FPRs are submitted, and the dust starts to settle as the Source Selection Authority (SSA) makes the source selection decision. The CO/KO is designated as the SSA unless the agency head appoints another individual for a program or category of contracts.

 

The decision is typically based on a comparative assessment of proposals as completed by the TEB and PEB. While the SSA most often uses Board reports and analyses to make the decision, the decision must represent the SSA’s independent judgment. If, by chance, the SSA disagrees with any of the assessments done by others, it typically sends the reports back to the Board(s), pointing out errors or discrepancies for re-review and correction.

 

However, the SSA may also decide to do an independent assessment of the facts and proposals without sending the information back to the Boards. The SSA would then document the discrepancies found, its assessment, the supporting information and facts used, and its reliance on its assessment in the final source selection decision. (This latter scenario rarely happens. However, when it does, it opens a HUGE protest door. I’ve seen a protest won on a very large Governmentwide contract because the SSA did not properly document the reason for its disregard for the TEB’s evaluation nor provided the supporting documentation relied upon for the decision made.)  

 

The source selection decision is documented and includes the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs.


You’d think once a source is selected, it would be easy after that, right? Well, the source selection only identifies the “otherwise successful offeror(s).” There is still a lot for the CO/KO to do before the selected source(s) can be awarded a contract.


Responsibility Determination (FAR Subpart 9.1)

Once a source is selected, the CO/KO must make an affirmative written determination of responsibility. The general standards of responsibility are:

  • Having adequate financial resources to perform the contract, or the ability to obtain them (FAR Subpart 9.104-3(a));

  • Being able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;

  • Having a satisfactory performance record (FAR Subpart 9.104-3 (b) and FAR Subpart 42.15).

  • Having a satisfactory record of integrity and business ethics (FAR Subpart 42.15);

  • Having the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors). (FAR 9.104-3(a).)

  • Having the necessary production, construction, and technical equipment and facilities, or the ability to obtain them, as applicable (FAR 9.104-3(a)); and

  • Being otherwise qualified and eligible to receive an award under applicable laws and regulations.

For small businesses, this responsibility determination includes the ability to meet the limitations on subcontracting found in FAR clause 52.219-14.


Congressional Notification (FAR Subpart 17.108)

CO/KOs must make information available on contract awards valued over $4.5 million (or at a threshold established by the agency) in time or the agency to announce it by 5 p.m. Eastern on the day of the award and agencies cannot make separate announcements before that time. Notifications excluded are:

(1) Those placed with the SBA under Section 8(a) of the Small Business Act;

(2) Those placed with foreign firms when the place of delivery or performance is outside the United States and its outlying areas; and

(3) Those for which a synopsis of the solicitation was exempted.


AND PAPERWORK (for the CO). But…before the ink has dried on that freshly signed contract…one thing must happen...


Notification of Unsuccessful Offerors and Debriefings (FAR Subpart 15.505 and 15.506)

Offerors eliminated from the Government’s competitive range may request a pre-award debriefing. The Government may refuse a pre-award debriefing request for compelling reasons if it is in the best interest of the Government. Offerors also should note that the information shared by the Government in a pre-award debriefing may be limited compared to the information the offeror will receive in a post-award debriefing.


The Government must conduct post-award debriefings with both successful and unsuccessful offerors upon receipt of a timely request (i.e., a request received within 3 days after the date on which the offeror received notification of a contract award). However, offerors are entitled to no more than one debriefing for each proposal, meaning if your firm received a pre-award debriefing the Government is not required to provide the business with a post-award debriefing. Offerors should consider the information available in each type of debriefing and decide when best to submit their debriefing request, pre- or post-award.


Offerors who submit an untimely debriefing request lose their right to a pre- or post-award debriefing.


AND another we pray doesn't.


A Protest is a written objection by an interested party to any of the following a solicitation, cancellation of a solicitation, award or proposed award of a contract, or termination or cancellation of an award. Protests can be filed before the award or after the award. Protests can be filed to the agency or the Government Accountability Office (GAO) depending on circumstances.

 

Protests based on alleged apparent improprieties in a solicitation must be filed before bid opening or the closing date for receipt of proposals. Protests are often filed after the award and must be made within 10 days after the contract award or within 5 days after a debriefing date offered to the protester for any debriefing that is required, whichever is later. Performance is immediately suspended pending resolution of the protest unless continuing performance is in the best interest of the Government or urgent and compelling circumstances exist that will not allow waiting for a decision.


When filed with the agency, it is in the parties’ best interest to resolve all concerns raised by an interested party using “open and frank discussions” and the protestor may request an independent review of their protest at one level above the contracting officer by an employee with no previous personal involvement in the procurement. Agencies must make all efforts to resolve agency protests within 35 days after the protest is filed. When filed with the GAO, a recommendation on the protest is due within 100 days from the date of filing or within 65 days under the express option.


Phew! We made it!


Whether it was done in a month or over several (because it CAN take some time depending on the number of proposals received), it’s a meticulous process that is closely guarded by the CO/KO to move forward expeditiously to where meeting the mission starts and the customer gets what they need. Understanding this process helps you anticipate pitfalls as you prepare your proposal, navigate them when they occur, have a realistic expectation for the timeline, and celebrate your victory or move on with critical information for the next proposal.


Join us next month as we wrap up this series with the Contract Administration (Post-Award) Phase.

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