saoc - communications discussions and negotiations

SAO CENTRAL TRAINING COMMUNICATIONSEXCHANGES/DISCUSSIONS/NEGOTIATIONS

(What Do They All Mean?)FAR 15.306

SAOC Training – April 28-30, 2015

VETERANS HEALTH ADMINISTRATION 2

Communications/Exchanges/Discussions/Negotiations (What Do They All Mean?)

Agenda

AGENDA – Items to cover in our training today

We’ll Identify types of communications and exchanges with offerors We’ll Differentiate between the processes of awarding contract(s) with or

W/O discussions Better understand the purpose and proper use of each method of

communication Know the communications process (clarification, exchanges discussion,

negotiation) – What do they all mean? We’ll Review Selection Process Diagram – With and W/O discussions We’ll Cover the GAO Benchmarks and SAOC QA (Audit Items) we look for Recommendations for Improvement

Provide Summary and allow for QA as usual.


Communications/Exchanges/Discussions/NegotiationsObjectives

Here are some Key Objectives to take away from this training today….

Upon completion of this training, you will be able to have a better understanding of the competitive negotiation/selection process

Identify the different types of exchanges between government (Buyer) and industry (Seller)

Acquire a solid knowledge of what all the negotiation terms mean and their differences. i.e. communications, clarifications, exchanges, discussions/negotiations

Know the difference between making an award with or without discussions and look at when to use each approach to yield best results

Recognize the process, benefits, and ramifications associated with establishing a competitive range determination


Communications/Exchanges/Discussions/Negotiations

FAR 15.3 Source Selection

Two Methods to Evaluate for Award by CO

The CO has essentially two ways to make an award, to award without discussions and or to establish a competitive range and award with discussions.

After the initial evaluation of all selection factors, CO has the authority to award with or w/o discussions IAW FAR.52.215-1 Instructions to Offerors Competitive Acquisitions.

The CO being allowed this latitude of awarding w/o discussions will save considerable amount of time in the selection process.




Award with or without Discussions? -- The decision made by the CO to intend to award W/O discussions that is likely to yield best value when:

o Requirements are well defined and understood by offerors.o Not likely that having discussions would achieve better results. o The marketplace is extremely competitive.o The marketplace is very stable/reliable to supply product/service.

IAW FAR 15.209(a) CO shall insert Provision FAR 52.215-1 Instruction to Offerors - In all competitive solicitations (As applicable).




If the CO intends to make award after discussions with all offerors within the competitive range that is likely to yield best results when:

o There are weaknesses or deficiencies in all submitted proposals.o Prices appear unreasonably high or low when compared with recent price paid for similar items or when price proposals submitted suggest that offerors do not have a good understanding of the requirement.

NOTE: IAW FAR 15.209 (1) the CO shall insert FAR 52.215-1 ALT I



FAR 15.306 Competitive Range

Awarding with Discussions A competitive range will consist of the most highly rated firms to stay in the

competition. The CO/Source Selection Authority (SSA) is briefed by technical evaluation board chair in writing.

The CO/SSA is allowed to reduce the competitive range to a more manageable number for efficiency. --When in doubt, leave the firm out is now the general rule.

Firms who are eliminated from the competitive range are notified in writing and are afforded the opportunity to request either a pre or post award debriefing. As a reminder, competitive range determinations must be documented in ECMS Action Briefcase S17.


Communications/Exchanges/Discussions/NegotiationsFAR 15.306 (a) Exchanges

Types of exchanges Exchanges is a broad term defining communications between

offerors and government (Sellers & Buyers) throughout the acquisition cycle.

Clarifications are limited exchanges between the government and offerors that may occur when award without discussions is contemplated.

Clarifications are minor in nature. i.e. Correction to a minor clerical error on proposal only and does not give the vendor an opportunity to revise their proposal.

Clarifications can be used and still allow the CO to award w/o discussions and may be conducted with one or all offerors as required.


Communications/Exchanges/Discussions/NegotiationsFAR 15.306 (d) Exchanges

Types of exchanges Continued

Exchanges with offerors after establishment of the competitive range. Negotiations are exchanges in either competitive or sole source environment. When negotiations are conducted in a competitive acquisition, they take place only after the establishment of a competitive range and are then called discussions. FAR 15.306 (d)

Discussions are tailored to each offeror’s proposal, and must be conducted by the Contracting Officer with each offeror in the competitive range – FAR 15.306 (d) (1)


Communications/Exchanges/Discussions/NegotiationsFAR 15.306 (e) Exchanges

Limits on Exchanges Government personnel involved in the acquisition shall not engage in the following:

Favor one offeror over another, Reveal Offeror’s technical solution, Reveal offeror’s price without the offeror’s permission, Reveal names of individuals providing reference information about an offeror’s past performance; or Knowingly furnish source selection information in violation of FAR 3.104 and 41 U.S.C. 423 (h) (1) (2).


Communications/Exchanges/Discussions/NegotiationsFAR 15.306 (b) Communications

Types of Communications• Communications is a formal type of exchange used to

determine if a firm should be in the competitive range or not – FAR 15.306 (3)(b)

• Communications will NOT be used if the CO intends to make award w/o discussions. --Worth Repeating.

• Communication may be conducted with one or all offerors as required.

• Typically communications allows the firm to respond to a negative past performance rating.

• If you are going to eliminate a firm based on negative past performance, you must allow the firm the opportunity to respond.


Communications/Exchanges/Discussions/NegotiationsFAR 15.3 Source Selection

What QA looks for?

What QA looks for? Documentation by CO showing intent to award with or w/o discussions in AP, SSEP, and Solicitation with proper provision authority. AP (B4) Source Selection Procedures how the source selection will be conducted IAW FAR 15.306 – In many cases the CO shall have the statement the government intends to make award w/o discussions.

Look for evidence of discussions/negotiations with offerors. If so, CO should have in contract file rationale to conduct discussions if authority of 52.215-1 is in the solicitation. S17 briefcase item should have all pertinent documentation that a

competitive range was in fact established. Does the contract file have adequate documentation of exchanges with offerors to obtain clarification of proposals?



What QA looks for?

What QA looks for? (Continued)

Ensure that the verbiage to award with or w/o discussions is consistently stated in AP, SSEP, and Solicitation. Did the CO and evaluation team do what they stated in writing they will do in properly executing their evaluation process? If the CO and evaluators engaged in clarifications, communications, and discussions, were the discussions meaningful and well documented? Was the SSEP signed by another individual other than the CO of record who was assigned to the acquisition and is authorized to be the SSA? If not, a waiver is required by DSPE. See FAR 15.303 Responsibilities, VAAR 815.303

Is there any evidence in the contract file of the CO providing a briefing to all selected evaluators? I.e. Confidentiality/Non-disclosure forms, SSEP reviewed acknowledged by all evaluators and signed/dated.



GAO Benchmarks (Lessons Learned) to mitigate improper use of clarifications

• How to best determine if government is improperly using clarifications is stepping over the line into the realm of discussions/negotiations?

When in clarification mode with the offeror, did you…..? Solicit a change to their proposal. i.e. Technical approach Identify to the offeror a weakness in their proposal Did you accept a change to their proposal which would in-advertently enter you into discussions with the offeror




Competitive Negotiations & Discussions Process

Award with Discussions. If you conduct discussions, you will address weaknesses, deficiencies, cost questions and/or other aspects of their proposal.

Rule: If you have discussions with one firm, you must have discussions with all firms in the competitive range.




Award Without Discussions Process

Step 1. Release the solicitation Step 2. Conduct due diligence Step 3. Receive proposals Step 4. Perform initial screening of proposals Step 5. Proposal Evaluation Step 6. Determination to award without discussions Step 7. Provide SSE results to SSA/Determination of Award




Award With Discussion Process

S1. Release the solicitation S2. Conduct due diligence S3. Receive proposals S4. Perform initial screening of proposals S5. Proposal Evaluation S6. Determination to award with Discussions S7. Establish the competitive range S8. Conduct discussions/negotiations S9. Receive final proposal revisions S10. Final evaluations S11. Presentation of Results to SSA/Determination of Award


Procurement Selection Process Diagram W or W/O Discussions




Discussions Not having robust discussions hinders the government’s ability

to get award w/o fully understanding the offeror’s proposed approach.

Discussions must be meaningful which means the government must specifically question and obtain clarification of the firm’s proposal by providing specific feedback to the firm.

Discussions can including bargaining, and allow for oral presentations (If structured) in order for the government to fully understand their proposal only.




Don’ts Stay away from terms like, Did you consider this _____? We noticed that you omitted XYZ was that intentional?

Do’s Discussions must be conducted with all firms in the

competitive range. When conducting discussions, ensure they are meaningful. It’s beneficial to eliminate the competitive range to the most

highly qualified firms only! – When in doubt leave them out.




Summary of Discussions

All offerors in the competitive range are allowed to submit a final proposal revision (FPR) –Used to be called a BAFO

A final evaluation must be conducted on the FPRs to determine a final rating for each offeror

After evaluation is completed, the results are presented to the SSA for an award decision.



Recommendations

RecommendationsDecide up front in evaluation process what strategy will be used if the government intends to make award with or w/o discussions and consistently follow that strategy. --Incorporate the correct provision to have proper authority, i.e. 52-215-01 or ALT is award with discussions.

Plan to evaluate proposals and make award w/o discussions. It will save youtime. -- Ask the question, do you really need more information from the Firm to understand their proposal? -- Or is it just nice to have some additionalinformation?Define & Clarify terms to ensure that your evaluation team understands the terms and proper usage: i.e. clarifications and discussions to prevent entering into discussions inadvertently. -- This will reduce chances of having a protest.



Recommendations Continued


The CO/SSA must document all evaluation tasks and key decisions in real time to ensure all steps in the evaluation process are accurately capture to ensure paper trail is complete.

Use clarification request form to best capture all the key information requested for clarification to ensure all such requests have standardized information to achieve consistent results.

Note: A clarification request does not give the offeror an opportunity to revise Or modify its proposal.





If you conduct discussions, ensure they are considered “Meaningful” per GAO standards as we mentioned earlier.

Remember, discussion discuss all weaknesses, deficiencies, cost questions or any other terms and conditions that are not acceptable to your evaluation team.

Go through the discussion process to allow the firm(s) to respond and allow them to submit their final proposal revision



FAR 15.306 - Summary

SummaryClarifications are limited exchanges between the government and offerors, that may occur when award w/o discussions is contemplated.Communications are exchanges between the government and offerors after receipt of proposals leading to the establishment of a competitive rangeDiscussions are negotiations that occur after establishment of competitive range that may at the CO’s discretion, result in an offeror being allowed to revise its proposal.Discussions. If the SSA/CO makes the determination that there is a need to have discussions, rationale for doing so shall be documented in the contract file (S17) – Ref: Action Briefcase folder correspondence/CO determination for competitive range



Summary Continued

Summary Continued

Discussions occur when the agency identifies significant weaknesses, deficiencies and other aspects of the offerors’ proposal that could be revised or explained to materially enhance the proposals potential for award.

Rule of Thumb. As the SSA/CO, do what you stated in the AP, SSEP, and Solicitation what you are going to do; document each task as it occurs in real time; and cite all references/sources to support your decision. --If this simple rule is followed consistently, the chances of achieving success with the acquisition will increase substantially. See Communications Table developed by NPI Inc. as a good reference tool.


Communications/Exchanges/Discussions/NegotiationsFAR Part 8

• 8.404 – Parts 13, 14, 15, & 19 do not apply to BPAs or orders placed against Federal Supply Schedules contracts – BUT see 8.405-5 regarding Small Business

• Communications with FSS contractors are not considered to be discussions as identified in FAR Part 15.306.

• Exchanges that do occur with vendors in a FAR Part 8 procurement must be fair and equitable.



• Conducting discussions are not required when using FAR Part 13 exclusively.



• There are no exchanges in FAR Part 14• Bids SHALL be evaluated without discussions. • There are only discussions under FAR Part 14 if the Two-Step

Sealed Bidding process is being utilized.


Regulations and Policy References & Guidance

FAR 15.209(a) Solicitation Provisions & Contract Clauses FAR 15.3 – Source Selection FAR 15.306 Exchanges with Offerors (After Receipt of

Proposals) FAR 52.215-1 Instructions to Offerors – Competitive

Acquisitions - Mandatory Provision when considering to award w/o discussions

VAAR 852.273-74 – Award without Exchanges VHA PM, Volume Six, Procurement Process,

Chapter XV Source Selection Guide

https://www.acquisition.gov/sites/default/files/current/far/html/Subpart%2015_2.html



https://www.acquisition.gov/sites/default/files/current/far/html/52_215.html

http://www.va.gov/oal/library/vaar/vaar852.asp

http://vaww.pclo.infoshare.va.gov/PCLO/PMWeb/Vol6Chapter15.aspx


Additional Resources & References

Government Accounting Office Site – Review Decisions and VA and DOD Health Care Collaboration

ALO courses: Discussions Before Receipt of Proposals and Due Diligence (ALO 002) & Competitive Range Determination & Conducting Competitive Discussions (ALO011) showing a Process Diagram describing the proposal

evaluation process. --Good investment of your time!

Northwest Procurement Institute (NPI) Summary Table FAR 15.306, Exchanges with Offerors After Receipt of Proposals

ECMS Action Briefcase Index – updated 3-20-14 Folders: S15 Technical Evaluation Documents, S17 CO’s Determination of Competitive Range,

S18 Discussions or Exchange Request for Final Proposal Revision (FPR)

http://www.gao.gov/legal/index.html

http://www.gao.gov/key_issues/va_and_dod_health_care_collaboration/issue_summary

https://www.appliedlearningonline.com/

http://vaww.pclo.infoshare.va.gov/PCLO/AWI/SAOC/Training/Training%20Presentations/Communications-Discussions-Negotiations%20-%20What%20they%20all%20mean/Summary%20of%20Communications%20Types%20001.jpg

http://vaww.ecms.va.gov/care/Libraries/DocumentDownloadHandler.ashx?LibraryDocumentID=265


TMS Item # 3937468

Questions

REMINDER: If you have any questions, please contact your local Training Officer.

saoc - communications discussions and negotiations

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competitive solicitations

selection factors

o requirements

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