CHAPTER 7 ORGANIZING FOR SOURCE SELECTION

In any source selection, there must be a source selection authority, a contracting officer, and one or more evaluators. Sometimes a single person can perform more than one of these roles. The source selection rules and concerns described in this book apply to all competitive negotiated acquisitions, regardless of the size and structure of the organization established for the source selection and the grade levels of those involved.

THE SOURCE SELECTION AUTHORITY

The source selection authority (SSA) is an individual appointed by the agency head to, among other assigned tasks and responsibilities, select the source at the end of the source selection process. If no one else is appointed, the assigned contracting officer is the source selection authority. In other words, to use an IT term the contracting officer is the “default” source selection authority. In some agencies the SSA has traditionally been called the source selection official (SSO).

Who, other than the contracting officer, can be appointed as a source selection authority? There are no governmentwide restrictions, absent any conflicts of interest. Usually the more significant the procurement, the higher on the organization chart agencies will go to appoint the source selection authority.

The source selection authority must be identified early in the acquisition cycle because of the mandatory duties given this individual in FAR 15.303(b). The FAR provides that the source selection authority shall:

• Establish an evaluation team tailored for the particular acquisition

• Approve the source selection strategy or acquisition plan

• Ensure consistency among the various solicitation provisions

• Consider the recommendations of advisory boards or panels (if any)

• Select the best value.

For routine source selections, the contracting officer is most often the source selection authority. He or she will appoint a small group of evaluators to review and evaluate the technical (non-cost) aspects of proposals and assign one or more people to perform a cost or price analysis. Even if the contracting officer is not the source selection authority, he or she always has a key role in the selection process as an advisor to the source selection authority and to others involved in the evaluation process. And, after release of the solicitation, the contracting officer is always the individual who controls any verbal or written contact with competing contractors.

EVALUATORS

The name given to the group of evaluators who rate or score non-cost factors differs from agency to agency and sometimes even within agencies. The agenices use a great number of names. Some of the more common names are:

• Technical evaluation panel (TEP)

• Technical evaluation team (TET)

• Proposal evaluation board (PEB)

• Source selection evaluation board (SSEB).

“FORMAL” AND “OTHER THAN FORMAL” SOURCE SELECTIONS

Governmentwide regulations at one time distinguished between “formal” source selections and “other than formal” source selections. While this is no longer the case, some agency regulations still make this distinction. And some even refer to “other than formal” source selections as “informal,” an unfortunate choice of a name for a disciplined process.

The organizational structure for more “formal” source selections (i.e., source selections of higher dollar value or those otherwise determined to be of particular significance) can be relatively complex, as shown in Exhibit 7-1.

In some agencies, a separate group of individuals called a performance risk assessment group (PRAG) may be assigned to evaluate past performance.

ADVISORS

The duties of the source selection advisory council (SSAC), or an equivalent group in other agency organizational structures, are normally to oversee the operations of the source selection evaluation board and advise the source selection authority. Depending on agency regulations or standard agency practices, this advice may or may not include a recommendation as to the contractor(s) to be selected for contract award.

Typically, an SSAC will consist of military personnel, civilians, or both, of relatively high grade and stature. For more formal source selections, agency regulations often recommend or require that SSAC members be at specified grade levels, depending upon the dollar value, complexity, or criticality of the acquisition.

In addition to the SSAC or its equivalent, the SSA may have a number of other advisors, including a business advisor (usually the assigned contracting officer when the SSA is not the contracting officer), a small business advisor, legal counsel, and others.

THE NUMBER OF EVALUATORS AND ADVISORS

The number of evaluators for any given source selection can range from one to more than 100. In fact, some government procuring organizations have assigned as many as 200 people to be evaluators and advisors for a single procurement.

There is no evidence available that links the number of people involved in proposal evaluation with the wisdom of a source selection decision. In fact, some acquisition professionals suspect that too many evaluators and advisors can contribute to communication static and miscommunication between subject matter experts and the source selection authority. Nonetheless, no matter how large or small the crowd, it is important that the proposal evaluators as an entity have the full range of expertise needed to competently address all the evaluation factors in the solicitation.

For more routine source selections, most agencies have established a minimum number of evaluators, either by longstanding practice or regulation. Usually, this is an odd number (3, 5, 7, or 9, for example). Presumably, an odd number of evaluators facilitates voting in the event of a disagreement.

WHERE EVALUATORS AND ADVISORS COME FROM

Technical evaluators, cost evaluators, and advisors are chosen because of their expertise. Most of them are agency employees. But people from other government agencies may be called upon when sufficient expertise is not available in house, when the agency wants to protect itself from charges of organizational bias, or when other agencies will be users of the product or service being procured. (Although it may sound a little cynical, involving the users in the selection process can later reduce the number of complaints about the choices that were made during the evaluation and award phases of the source selection.)

Contractor personnel may also be used as evaluators or advisors. Office of Management and Budget (OMB) guidelines, as described in FAR Subpart 7.5, provide that contractors may participate as “technical advisors to a source selection board” or may participate as a “voting or non-voting member of a source evaluation board.” However, common sense tells us that acquisition planners should work closely with legal counsel when contemplating the use of contractor personnel as advisors or evaluators. Issues such as conflicts of interest and protection of source selection and proprietary information must be thoroughly addressed.

The OMB provisions described in the FAR also state that contractors may not participate as “a voting member on any source selection board.” This is usually not a problem because the FAR provides that the source selection be made by an individual rather than a board.

The use of contractor personnel as evaluators or advisors on a source selection may first require the head of the agency to determine that available government personnel do not have the required expertise. This determination must be made before the contracting officer issues the solicitation. These procedures are fully described in FAR Subpart 37.2, Advisory and Assistance Services.

EVALUATORS’ COMPETENCE AND FAIRNESS

Competing contractors have on occasion based protests on the perceived lack of expertise of evaluators or on allegations of evaluator bias. They are rarely successful because protesting contractors have to show incompetence or bias, not just proclaim it. For example, they must show how and where the alleged bias occurred, or how and where the alleged incompetence manifested itself in a way that prejudiced the protestor. The following excerpt from a January 2008 opinion is typical of Comptroller General opinions on this matter:

[W]e have long found that the selection of evaluators is a matter within the discretion of the agency, and, accordingly, we do not review allegations … concerning the evaluators’ qualifications or the composition of evaluation panels absent a showing of possible fraud, conflict of interest, or actual bias on the part of evaluation officials…. (IMLCORP LLC; Wattre Corp., B-310582 et al., January 9, 2008).

This is not to say that there have not been some successful protests related to evaluator expertise or bias. In one instance, an offeror’s proposal in a competition that could have resulted in outsourcing work being done by government personnel was found by government evaluators to be unacceptable. However, the offeror pointed out that a number of the evaluators who had found the proposal unacceptable stood to lose their jobs if the proposal had been found to be acceptable. The potential for bias was so obviously great that the agency determined that a new evaluation by other evaluators was necessary.

Agencies should take evaluator competency and potential conflicts of interest seriously. When supervisors are asked to select someone to be an evaluator for an acquisition, they may be tempted to designate the person they can most afford to do without during the time of the source selection process. Source selection authorities and contracting officers should always insist on highly qualified personnel, not just as protection against a protest, but to maximize the likelihood that the real best value source will ultimately be identified and chosen.

Regardless of the size and structure of an organization established for source selection, and regardless of the grade levels of those involved, the source selection rules and issues described in this book remain the same.

EXHIBIT 7-1 Sample Organizational Structure for a “Formal” Source Selection