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    1) We do not tell the contractors which labor category to bid, but is it permissible to tell them we have 5 contractor spaces available, 2 in the engineering area, 1 in the program management area, and 2 in the logistics area? They would still have the flexibility to bid outside those stated labor caregories if they choose. They also would have the flexibility to bid 4 if they believe 4 could do the job. 2) We dont give them the number of hours, but we require them to bid the number of hours minus vacation and sick leave. We evaluate the number of hours proposed as part of the evaluation criteria. If we require them to work an eight hour day spelled out in the PWS, how does that equate to performance based or does it? It appears to me we may be mixing performance based and non-performance based elements here but are expecting the contractor to perform as if the elements are all performance based. Any suggestions/guidance are appreciated.


    Answer

    While FAR policy in Part 37 clearly requires the use of performance-based acquisition for services, to some extent the determination of what is "performance-based" and what is not performance-based (i.e., traditional statement of work) is subject to interpretation and business judgment. FAR 37.601(b) clearly spells out the elements required for a performance-based contract. Intent is important. The performance work statement (or statement of objectives) needs to emphasize outcomes rather than specific inputs to the "maximum extent practicable."

    Based on the description of your acquisition scenario, there does not appear to be any obvious conflict with this concept. Of course you will also need to include specific standards against which the contractor's effort will be measured. DFARS PGI 237.102-77 highly encourages use of the Acquisition Roadmap Requirements Tool for developing PBA documents, so may want to consider that as well. 

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