Oral presentations won't necessarily make buying easier

There is nothing inherently evil in oral presentations--but there may be some
troublesome aspects.

Oral presentations are so named to distinguish them from oral discussions. If oral
dialogue is called a "presentation," the hope is that it automatically becomes
something other than a "discussion." Generally, discussions with vendors are
taboo, unless they are held with all bidders and all are given the same opportunity to
revise their bid based on those powwows.

What is the problem with an oral dialogue's being a "discussion" that is
solved by calling that same dialogue "presentation"?

That appears to be what the Office of Federal Procurement Policy is trying to resolve
in Guidelines for the Use of Oral Presentations, which OFPP issued in April.
Well, the guidelines never tell us clearly, though they do hint that all sorts of benefits
flow from the use of oral presentations, such as speedier procurements, the elimination of
the written presentations and a whole host of other benefits that never occurred to anyone
before.

The hidden agenda is not to eliminate discussions but to make awards based on initial
proposals if at all possible. This is because true discussions with bidders in the
competitive range would lead to a round of revised offers and re-evaluations that might
lengthen the acquisition process. Oh horrors!

Rather than hold discussions with a narrowed field of bidders based on the initial
written presentations, OFPP suggests oral presentations from everyone who shows up. It's
got to be quicker, right?

But this theory from OFPP is built on a house of cards. On the first floor of this
house are some interesting--albeit incorrect--notions about the law of competitive
negotiation. The essence of these notions are captured in a single sentence in the middle
of the guidelines: "Communications pertaining to an offeror's past performance,
financial data, and representations concerning facilities or financing, and sample tasks
and other tests are not considered "discussions" and, therefore, are not subject
to the rules of engagement governing discussions." (Rules of engagement? Must have
been a military type or two involved in the drafting of these guidelines, maybe a whole
carrier group.)

This sentence argues erroneously that an offeror's poor past performance cannot be
deemed a deficiency, that the offeror's lack of adequate facilities and financing are not
deficiencies, and that the offeror's poor response to sample tasks or tests cannot be
deficiencies. The sentence needs a warning label: WARNING! The comptroller general has
determined that the language contained herein is hazardous to your source selection
process.

Consider some past protests before the General Accounting Office. In a case involving
Lockheed Aircraft Service Co. (B-255305, Feb. 22, 1994, 94-1 CPD B6 205), the comptroller
general spent several paragraphs talking about "meaningful discussions" held by
the agency concerning the protester's past performance.

In another protest involving PHE/Maser Inc. (70 Comp.Gen. 689, B-238367, B-2=38367.5,
Aug. 28, 1991, 91-2 CPD B6 210), the comptroller general ruled that a high
performance-risk rating based on past performance information entitled the protester to
discussions in that area. Further, the ruling did not dissuade agencies from holding
discussions regarding bad sample tasks. It says only that agencies do not have to hold
such discussions if they would defeat the purpose of the sample task. But any dialogue
regarding sample tasks or tests that was intended to result in a revised or final
evaluation would necessarily be discussions, GAO concluded. That means all offerors
should, therefore, be given a chance to revise their bids.

As to the second floor of the card house, the guidelines note that offers and
capability information are subsets of proposals, but only offers are the subject matter of
the forbidden "discussions." Therefore, OFPP's argument is that as long as the
dialogue between the vendor and the agency is limited to the vendor's capability, those
talks are OK. Did you guess that capability information concerns such things as past
performance, facilities finance and sample tasks?

The third floor of the house of cards is built on OFPP's contention that oral
presentations level the playing field and bring more vendors into the competitive process.
The theory: There are contractors with lots of experience that cannot prepare written
proposals well, so they will benefit from oral presentations.

Now, this makes no sense whatsoever. If they have experience, if they can win
contracts, then they should be able to prepare sound proposals, written or otherwise.

Further, the guidelines suggest that oral presentations will give agencies the chance
to interview the people who actually will do the contract work. Unfortunately, no one
knows whether that will be true until after source selection. Further, common law still
requires the buyer's cooperation. There is no way to enforce a "key personnel"
clause by terminating the contract for default.

Even if interviewing the people who might do the work is a good idea, what could the
interview be about? Well, one thing it can't be about is anything that might help the
offeror to improve its proposal from either a technical approach or capability standpoint.
Those critters would fall under category of revising an offer and be deemed as unallowed
discussions.

So lets consider the typical interview. Question: "You appeared to indicate that
you had certain experience. Would you please confirm what you appeared to indicate?"
Answer: "Your apparent perception of my apparent intention appears to be
correct."

Are we having fun yet?