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Vern Edwards

All proposal managers and writers should read a recent GAO bid protest decision: CR/SWS LLC, GAO B-414766.2, Sept. 13, 2017. In that case the agency was buying a commercial item--integrated solid waste management services at an Air Force base.

The solicitation required offerors to submit a “technical proposal” that was to consist entirely of a “Mission Essential Contractor Services Plan” (MECSP). The proposal preparation instructions said: 

Quote

Develop and submit a Mission-Essential Contractor Services Plan required IAW DFARS Provision 252.237-7024, Notice of Continuation of Essential Contractor Services.

That’s it. There were no supplemental instructions and no formatting or page limitations.

The solicitation said that the agency would evaluate proposals and select a contractor in a series of steps. The first step would be to evaluate the technical proposal (the Mission Essential Contractor Services Plan) for acceptability on a pass or fail basis. It said:

Quote

Mission-Essential Contractor Services Plan

Description: The Mission-Essential Contractor Services Plan must meet the requirements established in DFARS Provision 252.237-7024, Notice of Continuation of Essential Contractor Services.

and

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This requirement is met when the offeror’s proposal contains a Mission-Essential Contractor Services Plan that meets the requirements established in DFARS Provision 252.237-7024.

Measure of Merit: This requirement is met when the offeror’s proposal contains a Mission-Essential Contractor Services Plan that meets the requirements established in DFARS Provision 252.237-7024.

 The solicitation defined acceptable and unacceptable as follows: 

Quote

Acceptable: Proposal clearly meets the minimum requirements of the solicitation.

Unacceptable: Proposal does not clearly meet the minimum requirements of the solicitation.

 The solicitation said that only those offerors whose technical proposals (the Plan) were determined to be acceptable would move on to the next phase of the evaluation, which would entail a past performance/price tradeoff analysis and decision. The solicitation said that the agency planned to award without discussions.

Here is the text of DFARS 252.237-7024: 

Quote

NOTICE OF CONTINUATION OF ESSENTIAL CONTRACTOR SERVICES (OCT 2010) 

      (a)  Definitions.  “Essential contractor service” and “mission-essential functions” have the meanings given in the clause at 252.237-7023, Continuation of Essential Contractor Services, in this solicitation. 

      (b)  The offeror shall provide with its offer a written plan describing how it will continue to perform the essential contractor services listed in attachment _______, Mission Essential Contractor Services, dated ________, during periods of crisis.  The offeror shall– 

              (1)  Identify provisions made for the acquisition of essential personnel and resources, if necessary, for continuity of operations for up to 30 days or until normal operations can be resumed; 

              (2)  Address in the plan, at a minimum— 

                    (i)  Challenges associated with maintaining essential contractor services during an extended event, such as a pandemic that occurs in repeated waves; 

                    (ii)  The time lapse associated with the initiation of the acquisition of essential personnel and resources and their actual availability on site; 

                    (iii)  The components, processes, and requirements for the identification, training, and preparedness of personnel who are capable of relocating to alternate facilities or performing work from home; 

                    (iv)  Any established alert and notification procedures for mobilizing identified “essential contractor service” personnel; and 

                    (v)  The approach for communicating expectations to contractor employees regarding their roles and responsibilities during a crisis. 

(End of clause)

Note that despite the capital letter at the beginning of each subparagraph, paragraph (b) is one long sentence. 

(Whether such a requirement was properly imposed in an acquisition of commercial item solid waste management services is a matter that I will not address in this blogpost.)

The agency rated both the successful offeror’s and the protester’s plans to be acceptable. The successful offeror’s plan was less than two pages long. The protester’s plan was 14 pages long. The successful offeror won based on its lower price and past performance rating of “satisfactory confidence”.

The protester, which had a higher price but a better past performance rating, complained that the successful offeror’s plan did not address all the topics required by DFARS 252.237.7024 paragraphs (b)(2)(ii) and (b)(2)(iii), “time lapses” and “training issues”. The GAO agreed, sustained the protest, and recommended that the agency either reject the successful offeror’s proposal or conduct discussions, solicit revised proposals, and make a new source selection decision. It also recommended that the agency reimburse the protester’s costs of filing and pursuing the protest.

Yes, the agency was dumb. It did not take its own proposal preparation requirement seriously or plan its evaluation carefully. But that’s not the point of this blog post. The point of this blog post is that proposal managers and writers better pay close attention when reading and complying with proposal preparation instructions. They better dissect each and every sentence and phrase and identify each and every submission requirement. Details matter.

Now, look back at DFARS 252.237.7024 paragraph (b)(2), which specifies the topics that a Mission Essential Contractor Services Plan must “address”. How many are there? At first glance, there are five, specified in subparagraphs (i) through (v). But, in fact, there are many more than five. Here is my phrase-by-phrase analysis of what DFARS 252.237.7024, paragraph (b)(2), requires offerors to “address”;

1.    challenges associated with maintaining essential contractor services during an extended event; 

2.    time lapse associated with:

2.1. the initiation of the acquisition of essential personnel

2.2. the initiation of the acquisition of essential resources

2.3. the actual availability of essential personnel on site;

2.4. the actual availability of essential resources on site; 

3.    components for:

3.1. identification of personnel who are capable of relocating to alternate facilities

3.2. identification of personnel who are capable of performing work from home

3.3. training of personnel who are capable of relocating to alternate facilities

3.4. training of personnel who are capable of performing work from home

3.5. preparedness of personnel who are capable of relocating to alternate facilities

3.6. preparedness of personnel who are capable of performing work from home

4.    processes for:

4.1. identification of personnel who are capable of relocating to alternate facilities

4.2. identification of personnel who are capable of performing work from home

4.3. training of personnel who are capable of relocating to alternate facilities

4.4. training of personnel who are capable of performing work from home

4.5. preparedness of personnel who are capable of relocating to alternate facilities

4.6. preparedness of personnel who are capable of performing work from home

5.    requirements for:

5.1. identification of personnel who are capable of relocating to alternate facilities

5.2. identification of personnel who are capable of performing work from home

5.3. training of personnel who are capable of relocating to alternate facilities

5.4. training of personnel who are capable of performing work from home

5.5. preparedness of personnel who are capable of relocating to alternate facilities

5.6. preparedness of personnel who are capable of performing work from home

6.    any established alert procedures for mobilizing identified “essential contractor service” personnel

7.    any established notification procedures for mobilizing identified “essential contractor service” personnel

8.    approach for:

8.1. communicating expectations to contractor employees regarding their roles during a crisis. 

8.2. communicating expectations to contractor employees regarding their responsibilities during a crisis. 

By my count there are 27 planning topics to be addressed, not just five.

(By the way, what’s in a “plan”? Some persons would think that a plan specifies who, what, when, where, and how.)

My kind of analysis might accomplish three things.

  • First, it will ensure that your proposal addresses each and every proposal preparation requirement. Agency personnel are not always aware of just what their proposal preparation instructions require of offerors. Read the convoluted instructions in some of the RFPs floating around out there. Read the sentences. There can be a lot of hidden eddies in bureaucratic stream-of-consciousness writing, as the Air Force learned in CR/SWS LLC.
  • Second, it might alert complacent agency evaluators as to what they should be looking for in all proposals. This will give you a leg up if the competition has not been as thorough as you.
  • Third, if you lose, it might give your attorney a basis for assessing whether the agency adhered to its evaluation criteria and ammunition for a protest, as it did in CR/SWS LLC. The protester was more conscientious than both its competitor and the agency, and so it won.

Did the Department of Defense really intend for offerors to plan mission-essential contractor services in great detail? Was it practical to ask offerors to do so before contract award, i.e., before they understood what performance would actually be like on the Air Force base? What did the agency really want and expect from offerors? Who knows? It did not matter. Neither the agency nor the successful offeror took the proposal preparation instructions seriously, and it cost them.

As for you agency personnel--you better think when you write proposal preparation instructions, and you better read what you’ve written when you plan your evaluations, and you better take what you’ve written seriously. And you better supplement and explain lousy boilerplate instructions like those in DFARS 252.237-7024.

I assume that the Air Force will do as the GAO recommended: conduct discussions, seek proposal revisions, and make a new source selection decision. I wonder if it will supplement and clarify DFARS 252.237-7024. I wonder how comprehensive and how long the offerors’ Mission-Essential Contractor Services Plans will be in the second go-round.

Vern Edwards

A signal feature of source selection under FAR Part 15 as conducted today is solicitation and evaluation of “technical” (and/or “management”) proposals. Although FAR 2.101 conflates proposals with offers,[1] that attributes more dignity to “technical” proposals than they deserve.

Under FAR Part 15, contracts are formed through offer and acceptance. Offers are promises—prospectively binding commitments to act or refrain from acting in a specified way.[2] “Technical” proposals are packages of information, the specific content of which depends on the instructions in RFPs. “Technical” proposals may contain promises, to be sure, but if they do they also contain illusory promises and nonpromissory statements: assertions of fact, descriptions, estimates, statements of expectation and contingent intention, sales pitches, and so forth.

In most cases the various kinds of statements in proposals are so intermingled and worded as to make it hard to distinguish between what is being promised and what it not. As explained by one commentator:

Quote

The meaning of an “offer” for contract purposes is well settled. FAR Part 2 defines an “offer” as “a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract.” This accords with the commercial meaning of an offer, defined as “the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Both the GAO and the [Court of Federal Claims] have used this commercial definition to determine whether a government contract has been created.

In accord with the general rule for commercial contracts as expressed in the Restatement [(Second) of Contracts] and the FAR definition, the offer in a government contract consists of (1) a proffer of terms, i.e., performance specifications and clauses, consistent with those specified in the solicitation, and (2) the price specified by the offeror. If the Government selects an offer for award, it forms a contract by accepting the terms, including the price, of the offer….

The FAR does not define the word “proposal,” and the definition of “offer” [in FAR 2.101] fails to distinguish between the two terms, stating that “responses to requests for proposals (negotiation) are offers called ‘proposals.”’ However, proposals in response to a solicitation frequently contain much more than what is within the legal concept of an offer, as that term is used in contract law and defined in the FAR. The response may include other proposal information, such as past performance data, the qualifications of proposed key personnel, capability descriptions, and cost estimates not to be incorporated into any subsequent contract.[3]

 See also the Restatement (Contracts) Second § (2)(1): 

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A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promise in understanding that a commitment has been made.

 And § 2, Comment e:

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Illusory promises; mere statements of intention. Words of promise which by their terms make performance entirely optional with the “promisor” whatever may happen, or whatever course of conduct in other respects he may pursue, do not constitute a promise. Although such words are often referred to as forming an illusory promise, they do not fall within the present definition of promise. They may not even manifest any intention on the part of the promisor. Even if a present intention is manifested, the reservation of an option to change that intention means that there can be no promisee who is justified in an expectation of performance.

So when an agency awards a contract to an offeror, it will not be contractually entitled to everything that is in the winner’s “technical” proposal. It will be entitled only to that offeror’s performance as its contractor and to what that offeror promised to do or deliver.

Unfortunately, what is so often found in “technical” proposals is the product of what is little more than an essay-writing contest. That is because essays are what agencies instruct offerors to submit. Consider the following proposal preparation instruction in an RFP for sign language interpreter services:

Quote

NON-COST/PRICE EVALUATION CRITERIA

Factor 1: Technical Approach - Offeror will be evaluated on interpreter service involving unusual or unique problems demanding creative approach and solutions. Offerors will be evaluated on problem solving alternative approaches and recommended solutions. Offeror should address the following topics relative to your overall approach:

·      Demonstrate the company’s knowledge of current trends in the Deaf Community and interpreting profession;

·      Demonstrate the ability to provide services in all location within five business days of award of the contract;

·      Demonstrate your scheduling process to meet the scope of this contract;

·      Demonstrate the ability to provide the community building activities and trainings;

·      Demonstrate bills are current, complete, timely and accurate.

Factor 2: Personnel (Staffing) - Offerors academic, technical, and professional qualifications of interpreting staff are the most important aspects of personnel. Offeror must demonstrate the ability to obtain sufficient subject matter experts with recognized industry expertise to understand the technical factors. The Offeror shall present resumes, limited to two (2) pages each, representing the qualifications and certifications of the interpreters who will be assigned to this contract to provide core services. Resumes for Key Personnel and Non-Key Personnel shall address the following topics relative to the Contractors overall approach:

·      Demonstrate the ability to provide interpreters with various interpreting styles as indicated in the RFP

·      Demonstrate your staffing to meet criteria 1 of this contract.

·      Demonstrate your staffing to meet criteria 2 of this contract.

Those instructions do not call for promises. They call for “demonstrations”, i.e, persuasive descriptions of various things, i.e., a sales pitch.[4] Even if incorporated into a contract, they will not bind the contractor if not written as promises.

The “technical” proposal approach to source selection, in which offerors describe (but do not necessarily promise) how they intend to do this or that during contract performance and submit various plans for facets of performance—such as systems engineering, safety management, staffing, use of agile software development techniques, task order management, cost control, schedule control, risk management, and quality assurance—is in widespread use in source selection. Such content usually is not subjected to a thorough legal analysis. Instead, “technical” evaluators with no legal training read offerors’ submissions and judge them largely on subjective bases. The evaluators react to what they read by tagging certain statements in proposals as “strengths,” “weaknesses,” or “deficiencies” and assigning what they consider to be an appropriate adjectival rating—outstanding, good, acceptable, marginal, unacceptable, and the like—much like a professor grading a college test essay. The result of this method of source selection is decisions that are based on what is essentially advertising copy. Such proposals may not have high predictive value, and such practices do not ensure that the Government will be entitled to, or will receive, “best value.”

The value to which the Government will be entitled will be obtained, if at all, from the things that the agency will be entitled to receive under contract. What it will be entitled to receive is (a) fulfillment of the promises the winning offeror made and (b) competent performance by that offeror. Thus, the proper things to evaluate are not essays in “technical” proposals, but offerors and their offers (promises). The offerors and their offers are the proper objects of evaluation. Evaluation of offers determines the value that each offeror promises. Evaluation of offerors determines the likelihood that each offeror will deliver on its promises. Source selection planners must ensure that evaluations are based on the attributes of offerors and their offers and not merely on creative writing. When offers include descriptions of the products to be delivered or the services to be performed, they must be the objects of “technical” evaluation, but they should also be the objects of a legal analysis to determine whether the statements in them constitute promises and to detect vagueness, ambiguity, and loopholes, intentional or otherwise. 

When planning a source selection the first thing an agency must decide is what to evaluate, i.e., what are to be the objects of its evaluation. In common parlance and according to the FAR, agencies evaluate proposals. But such parlance is based on a misconception. Proposals are not the things to be evaluated. They are merely packages of information. The things to be evaluated are offerors and their offers. Unfortunately, rather than thinking matters through on the basis of clear concepts and sound principles, many agencies take a cut-and-paste approach to source selection, uncritically borrowing schemes used in past acquisitions and cutting and pasting text from past RFPs. The result is that many half-baked ideas and poor practices are deeply embedded in acquisition culture and are passed on to future generations of acquisition personnel through on-the-job training. Regrettably, acquisition culture and the bid protest system are very forgiving, despite catastrophes.[5] No one knows how such practices have affected the value actually received from contract outcomes.

The solution to these problems begins with better understanding and thinking, better source selection planning, and better choices of evaluation factors for award. 


[1] See FAR 2.101 definition of “offer”: Offer’ means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract. Responses to invitations for bids (sealed bidding) are offers called ‘bids’ or ‘sealed bids’; responses to requests for proposals (negotiation) are offers called ‘proposals’; however, responses to requests for quotations (simplified acquisition) are ‘quotations,’ not offers.”  

[2] Restatement ( Second) of Contracts § 2(1) and § 24, Comment a.

[3] Shearer, “How Could It Hurt To Ask? The Ability To Clarify Cost/Price Proposals Without Engaging in Discussions,” 39 Pub. Cont. L.J. 583, 596–97 (Spring 2010) (footnotes omitted). 

[4] See Edwards, “Streamlining Source Selection by Improving the Quality of Evaluation Factors,” 8 N&CR ¶ 56; and Edwards, “Still Waiting for a Reformed and Streamlined Acquisition Process: Another Essay-Writing Contest,” 22 N&CR ¶ 47, asserting that source selection too often is based on essay-writing contests.

[5] See Jacobs Tech., Inc., v, United States, 131 Fed. Cl. 430 (2017); EDC Consulting, LLC, Comp. Gen. Dec. B-414175.10, 2017 CPD ¶ 185.

Vern Edwards

This blog post is adapted from an article I wrote for the June 2017 issue of The Nash & Cibinic Report.

Copyright 2017 is by Thomson Reuters.

         After the attack on Pearl Harbor on December 7, 1941, it took the United States 1,366 days to defeat Japan and receive its formal surrender on the U.S.S. Missouri on September 2, 1945. Thus far, it has taken the United States Army 1,416 days and counting to award a contract for support services at its Yuma Proving Ground. In the course of that procurement the Army has so far made three source selection decisions and suffered four protests to the Government Accountability Office and four protests to the U.S. Court of Federal Claims. The Army has taken corrective action twice and has proposed to do so a third time. It has had two different source selection authorities, two different chairs of the source selection evaluation board, and three contracting officers. The source selection was still underway as of the end of March 2017. The Yuma Proving Ground service procurement is evidence of two problems that plague Government contracting: first, a failure of professional competence and second, the continuation in the 21st Century of a 19th Century procurement system under the Competition in Contracting Act of 1984 (CICA) as amended.

         As described in the latest protest decision in this saga, Jacobs Technology, Inc. and TRAX International Corp., --- Fed. Cl. ---, 2017 WL 1291795, March 31, 2017, the request for proposals, issued on May 16, 2013 and amended six times, called for a cost-plus-award-fee contract with a one-year performance period and three one-year extension options. The contractor’s job would be to support military testing. Historically, the incumbent contractor’s staff had consisted of approximately 1,234 full-time equivalents.

        The source selection evaluation factors were mission capability, past performance, small business participation, and cost. The three non-cost factors were approximately equal in importance to each other and, in the aggregate, approximately equal to cost. The RFP required offerors to submit “limited” written proposals and make oral presentations. The Army received four proposals, including one from the incumbent contractor, TRAX International Corp. It took the Army until September 10, 2014—483 days after issuance of the RFP—to make its first award, to Jacobs Technology, Inc., which it determined to have “the lowest priced offer of the most highly rated proposals.” Jacob’s evaluated probable cost was $411,678,388. The contracting officer found the incumbent’s higher evaluated cost to be unreasonable.

A Nineteenth Century Procurement Process

         It is in the CICA requirement to evaluate cost that we find a 19th Century procurement system at work to the Government’s detriment. In order to ensure that offerors had a common basis for estimating cost, the RFP required offerors to base their estimates on an historical labor “baseline” established by the Army and included with the RFP. Unfortunately, the baseline did not include crucial information, the result being that the offerors did not, in fact, estimate costs on the same basis. The Army discovered the problem during the proposal evaluation.

Quote

In June 2014, before the first contract award, two procurement officials on the “Cost Team” issued a clarification to the Source Selection Advisory Council to explain the “significant variance in cost” between the two highest-rated offerors, Jacobs and TRAX. The Army attributed the variance to a “[p]roblem” it found with the historical baseline staffing data provided in Technical Exhibit 10, item 6, specifically noting that the data did not include productive hours, average wage rates, or full-time equivalents. Thus, when Jacobs and TRAX submitted baseline staffing proposals, they took different approaches. Jacobs and TRAX each provided a baseline number of total labor hours that would be expended in the base period of the contract. Both Jacobs and TRAX also calculated the baseline total labor hours for the first year by multiplying (1) average productive labor hours per employee and (2) 1,234 employees, the figure provided in Technical Exhibit 10, item 6. See id. However, for the first prong of the equation, Jacobs’ productive labor hours per employee was [***], whereas TRAX’s productive labor hours per employee was [***]. See id. As a result, before either offeror applied any labor efficiencies that could reduce the offeror’s proposed hours, Jacobs proposed [***] total baseline hours and TRAX proposed [***] total baseline hours for the base period. This baseline number affected the cost of the proposals.

That’s when the contracting officer should have called a halt, amended the RFP to provide the missing information to offerors, instructed offerors to modify their proposals if they wished to do so, and then allowed the evaluation to proceed. Instead, the Army pressed on.

Quote

Despite the different approaches, the Army determined that even if TRAX and Jacobs had proposed the same number of hours, whether through Jacobs’ or TRAX’s method, Jacobs would still have proposed a lower cost. The Contracting Officer thus found that Jacobs presented “the lowest priced offer of the most highly rated proposals,” and the Source Selection Authority (“SSA”) determined that Jacobs’ proposal “provide[d] the best overall value,” TRAX’s proposed cost was deemed “unreasonable.” Accordingly, on September 10, 2014, the Army awarded the contract to Jacobs. [References to the administrative record omitted.]

         When TRAX, the incumbent, discovered the baseline problem after contract award, it protested to the GAO on that and other grounds. The Army announced that it would take corrective action and the GAO dismissed the protest. And then, astoundingly, the Army did not fix the problem.

Quote

As with the first award evaluation, a procurement official on the Cost Team issued a clarification to the Source Selection Advisory Council to explain the variance in Jacobs’ and TRAX’s costs. That clarification identified the same baseline staffing issue related to Technical Exhibit 10, item 6, and indicated that Jacobs and TRAX had again applied different methodologies to determine baseline staffing for the base year, resulting in a lower baseline of labor hours for Jacobs. Nonetheless, the SSA found that Jacobs’ proposal “provide[d] the best overall value” based upon an evaluation of the four factors described in the RFP, and the Army awarded the contract to Jacobs for a second time on December 10, 2015. [References to the administrative record omitted.]

TRAX again protested the Army’s failure to evaluate provide a common cost baseline. The Army again announced that it would take corrective action and issued Amendments 7 and 8 to the RFP. The GAO again dismissed the protest. TRAX and Jacobs then protested the amendments and the Army issued Amendment 9, cancelling them. TRAX and Jacobs submitted revised cost proposals, and guess what?

Quote

Significantly, Jacobs again submitted a lower cost than TRAX for total evaluated probable cost/price. As before, Jacobs proposed a lower number of baseline productive hours for the first year of the contract… The [Source Selection Authority] acknowledged Jacobs’ and TRAX’s different approaches regarding overtime, but found that both Jacobs and TRAX had complied with the RFP by beginning with 1,234 full-time equivalents and then applying management approaches and efficiencies to determine baseline staffing. The SSA further determined that Jacobs offered [***], and ultimately found that Jacobs’ proposal presented the best overall value. On October 28, 2016, the Army awarded the contract to Jacobs for a third time.  [References to the administrative record omitted.]

TRAX protested yet again. This time it complained not only about the failure to establish a common baseline, but also that the Army had allowed Jacobs to change its oral presentation slides without requiring it to make another oral presentation, as required by the RFP. The Army implemented a CICA stay in accordance with FAR 33.104(c). Jacobs filed suit at the Court of Federal Claims complaining that the Army should have overridden the stay. The Army announced that it would take a third corrective action. The GAO again dismissed TRAX’s protest, but Jacobs filed suit to block the Army from taking its proposed corrective action. TRAX then sued complaining about the Army’s continuing failure to solve the common baseline problem and alleging bias on the part of Army officials. The court denied the protests, freeing the Army to proceed with a third corrective action. That is where things stood as of last March 31.

         The Army got into trouble because it tried to find a way to provide offerors with a basis to estimate what could not be estimated—the annual cost of a complex, long term, frequently changing service requirement, a problem that the court described beautifully at the end of its decision.

Quote

TRAX argues that it has made a threshold showing of conduct that is hard to explain absent bad faith, stating that the Army has “knowingly and deliberately ignored” problems related to baseline staffing during the three awards in this procurement, “each time to the benefit of Jacobs”… TRAX, however, has failed to make a threshold showing of conduct by the Army that is hard to explain absent bad faith… Rather, the errors appear to simply reflect the difficulties the Army has experienced in attempting to set a template for baseline staffing. Such difficulties stem, at least in part, from the nature of the Yuma testing facility, which has an uneven workflow and staffing needs that are hard to predict. See, e.g., AR 3-97 (stating that the Yuma facility requires an “ever-changing work effort” where the demands “change[] constantly” and contractors must be “flexible and adaptable”); AR 5b-457 (explaining that the Army could not provide “forecasted” information regarding full-time equivalents needed beyond the base period of the contract).

There was no way for any of the offerors to estimate what it would cost to provide support services at Yuma Proving Ground for a year. As the Army had explained to the court:

Quote

Yuma’s primary mission is to provide “the most flexible, responsive, innovative and diverse set of capabilities and services across the spectrum of natural environments.” It tests military equipment of varying types, with the materials tested and the “associated infrastructure necessary to conduct each test chang[ing] constantly.” The Army describes Yuma as a “premier Army asset” with capabilities that are continually expanding, resulting in an increased need for personnel to support the testing conducted at the facility.

The only way that the Army could comply with CICA and evaluate cost was develop a common cost baseline, tell the contractors to plug in some numbers, and compare results as if they were meaningful indicators of what the offerors’ performance costs would be. But the resulting cost estimates probably bore little if any meaningful relationship to what would happen after contract award. They probably had little if any meaningful predictive value. The apparent cost difference between Jacobs and TRAX may have been illusory. The Army used the numbers so it could “include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals,” as required by10 U.S.C.A. § 2305(a)(3)(A)(ii) and 41 U.S.C.A. § 3306(c)(1)(B).

      Orders are orders. Onward the Light Brigade. A lot of wasted effort, time, money, and litigation, the waste being attributable to a 19th Century obsession with cost competition, abetted by incompetent people. In today’s world of procurements of long-term, complex support services, CICA must be amended to permit source selection without evaluation of price or cost in appropriate circumstances, followed by one-on-one negotiations with the selectee before contract award.

A Better Approach To Support Services Contracting

         A better way to have contracted for the Yuma Proving Grounds support services would have been to award a contract with two line items. One line item would be for a firm-fixed-price contract with award-fee for day-to-day general management and supervision services and for administrative services such as safety, quality control and assurance, purchasing and materials management, property management, human resources management, and accounting. The other line item would be for a cost contract (no fee) for materials, labor, and other direct costs to be incurred for performance of support services. Under such a contract, with a day-to-day contractor management team in place and an advance agreement on any indirect cost rates applicable to the cost (no fee) line item, the parties would jointly plan and manage performance. The contractor would make its best effort to execute the plan by performing the support services under the cost (no fee) line item.

         Instead of pretending that the contractor would independently plan, manage, and execute performance in accordance with an unavoidably incomplete "performance work statement," the parties would jointly plan the work to be done and its scheduling, budget, required materials, labor staffing, and labor compensation. The Government would have the final say on planning decisions. The Government would obligate funds for the firm-fixed-price with award-fee line item upon contract award, but it would fund the cost (no fee) line item in the amount required on a quarterly basis. The contractor would then execute through day-to-day performance.Such an approach to contracting would be relational, rather than transactional. See Edwards and Nash, “A Proposal for a New Approach to Performance-Based Services Acquisition,” Defense Acquisition Review Journal (September 2007), and Vitasek and Frydlinger, “Are You Suffering From the Contracting Paradox? Introducing the Relational Contract,” Contract Management (May 2017).

          An agency would choose the contractor for such a contract on the basis of the best-qualified offeror with a fair and reasonable price, as described in “Postscript: Highest Technically Rated Offerors With Fair and Reasonable Pricing—The GAO’s Sevatec Decision,” The Nash & Cibinic Report (March 2017). The agency would evaluate only the offerors’ qualifications--based primarily on experience, past performance, and a brief oral presentation about their company and proposed contract management organization--and the fairness and reasonableness of their proposed firm-fixed-price and award fee for the day-to-day management services. Price evaluation would not involve nonprice/price tradeoffs or direct comparisons of offerors' prices. Since offerors would not propose estimated costs for performance of the support services under the cost (no fee) line item there would be no need to establish a common cost estimating baseline, and no need to evaluate the realism and reasonableness of offeror estimated costs. The agency would get a contract that is better adapted to the realities of long-term complex service contracting, and they would get it through a simpler source selection process.

          A little innovation can go a long way.

 

Vern Edwards

The FAR has gotten lengthier every year. It never stops growing. I compared the Commerce Clearing House (CCH) edition of the FAR dated January 1, 2016 with the one dated January 1, 2017. The first was 2,208 pages long; the second is 2,296. And so it goes. The deeper that ocean gets, the murkier its depths become.

Now, perhaps in response to Executive Order 13777, Feb. 24, 2017, the Defense Acquisition Regulations Council (DARC) and the Civilian Agency Acquisition Council (CAAC) want to “streamline” the FAR. The DARC has distributed a “case management record” within DOD calling for suggestions:

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We have an opportunity to provide recommendations fro streamlining the FAR and/or DFARS.

If you wish to participate by providing input recommending a deletion or other streamlining recommendation for a specific  portion of the FAR and/or DFARS, please submit your recommendation by April 12….

 

The case management record goes on to say that any recommendations for cuts should state (1) whether a proposed cut implements statute or executive order, (2) the rationale for the recommendation, and (3) any potential cost savings or “burden reductions.”

Good idea. I'm all for it. But the project needs a guiding principle or two. Let me make four suggestions.

  1. Do not recommend cutting or editing anything that implements statute or executive order. It would be complicated and take up too much time in debate.
  2. Delete everything that is merely tutorial or informative, not directive--everything that does not include the words must, shall, or may not  or that includes one of those terms only in connection with a general policy statement.
  3. Delete everything that duplicates rules promulgated by other agencies that have the primary statutory authority to do so and that is already covered in another place in the Code of Federal Regulations (CFR).
  4. Don’t bother clipping words, phrases, or sentences here and there in a lengthy text. Too much trouble. Focus on long passages that don’t require detailed editing.

Now for an example. Consider FAR 16.104, “Negotiating Contract Type.” Here it is, with the text that I would delete in red.

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16.103 Negotiating contract type.

(a) Selecting the contract type is generally a matter for negotiation and requires the exercise of sound judgment. Negotiating the contract type and negotiating prices are closely related and should be considered together. The objective is to negotiate a contract type and price (or estimated cost and fee) that will result in reasonable contractor risk and provide the contractor with the greatest incentive for efficient and economical performance.

(b) A firm-fixed-price contract, which best utilizes the basic profit motive of business enterprise, That  be used when the risk involved is minimal or can be predicted with an acceptable degree of certainty. However, when a reasonable basis for firm pricing does not exist, other contract types should be considered, and negotiations should be directed toward selecting a contract type (or combination of types) that will appropriately tie profit to contractor performance.

(c) In the course of an acquisition program, a series of contracts, or a single long-term contract, changing circumstances may make a different contract type appropriate in later periods than that used at the outset. In particular, contracting officers should avoid protracted use of a cost-reimbursement or time-and-materials contract after experience provides a basis for firmer pricing.

(d)(1) Each contract file shall include documentation to show why the particular contract type was selected. This shall be documented in the acquisition plan, or in the contract file if a written acquisition plan is not required by agency procedures.

(i) Explain why the contract type selected must be used to meet the agency need.

(ii) Discuss the Government’s additional risks and the burden to manage the contract type selected (e.g., when a cost-reimbursement contract is selected, the Government incurs additional cost risks, and the Government has the additional burden of managing the contractor’s costs). For such instances, acquisition personnel shall discuss −

(A) How the Government identified the additional risks (e.g., pre-award survey, or past performance information);

(B) The nature of the additional risks (e.g., inadequate contractor’s accounting system, weaknesses in contractor's internal control, non-compliance with Cost Accounting Standards, or lack of or inadequate earned value management system); and

(C) How the Government will manage and mitigate the risks.

(iii) Discuss the Government resources necessary to properly plan for, award, and administer the contract type selected (e.g., resources needed and the additional risks to the Government if adequate resources are not provided).

(iv) For other than a firm-fixed price contract, at a minimum the documentation should include −

(A) An analysis of why the use of other than a firm-fixed-price contract (e.g., cost reimbursement, time and materials, labor hour) is appropriate;

(B) Rationale that detail the particular facts and circumstances (e.g., complexity of the requirements, uncertain duration of the work, contractor’s technical capability and financial responsibility, or adequacy of the contractor’s accounting system), and associated reasoning essential to support the contract type selection;

(C) An assessment regarding the adequacy of Government resources that are necessary to properly plan for, award, and administer other than firm-fixed-price contracts; and

(D) A discussion of the actions planned to minimize the use of other than firm-fixed-price contracts on future acquisitions for the same requirement and to transition to firm-fixed-price contracts to the maximum extent practicable.

(v) A discussion of why a level-of-effort, price redetermination, or fee provision was included.

(2) Exceptions to the requirements at (d)(1) of this section are −

(i) Fixed-price acquisitions made under simplified acquisition procedures;

(ii) Contracts on a firm-fixed-price basis other than those for major systems or research and development; and

(iii) Awards on the set-aside portion of sealed bid partial set-asides for small business.

 

The “shall” in the first sentence of 16.103(b) is an example of what I call a nonspecific shall. It does not direct the contracting officer to do anything specific in any given instance, but only instructs him or her to keep a general principle in mind. 

Here is another example of what I would delete, from FAR 15.404-1, “Proposal Analysis Techniques”:

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(b) Price analysis for commercial and non-commercial items.

(1) Price analysis is the process of examining and evaluating a proposed price without evaluating its separate cost elements and proposed profit. Unless an exception from the requirement to obtain certified cost or pricing data applies under 15.403-1(b)(1) or (b)(2), at a minimum, the contracting officer shall obtain appropriate data, without certification, on the prices at which the same or similar items have previously been sold and determine if the data is adequate for evaluating the reasonableness of the price. Price analysis may include evaluating data other than certified cost or pricing data obtained from the offeror or contractor when there is no other means for determining a fair and reasonable price. Contracting officers shall obtain data other than certified cost or pricing data from the offeror or contractor for all acquisitions (including commercial item acquisitions), if that is the contracting officer’s only means to determine the price to be fair and reasonable.

(2) The Government may use various price analysis techniques and procedures to ensure a fair and reasonable price. Examples of such techniques include, but are not limited to, the following:

(i) Comparison of proposed prices received in response to the solicitation. Normally, adequate price competition establishes a fair and reasonable price (see 15.403-1(c)(1)(i)).

(ii) Comparison of the proposed prices to historical prices paid, whether by the Government or other than the Government, for the same or similar items. This method may be used for commercial items including those “of a type” or requiring minor modifications.

(A) The prior price must be a valid basis for comparison. If there has been a significant time lapse between the last acquisition and the present one, if the terms and conditions of the acquisition are significantly different, or if the reasonableness of the prior price is uncertain, then the prior price may not be a valid basis for comparison.

(B) The prior price must be adjusted to account for materially differing terms and conditions, quantities and market and economic factors. For similar items, the contracting officer must also adjust the prior price to account for material differences between the similar item and the item being procured.

(C) Expert technical advice should be obtained when analyzing similar items, or commercial items that are “of a type” or requiring minor modifications, to ascertain the magnitude of changes required and to assist in pricing the required changes

(iii) Use of parametric estimating methods/application of rough yardsticks (such as dollars per pound or per horsepower, or other units) to highlight significant inconsistencies that warrant additional pricing inquiry.

(iv) Comparison with competitive published price lists, published market prices of commodities, similar indexes, and discount or rebate arrangements.

(v) Comparison of proposed prices with independent Government cost estimates.

(vi) Comparison of proposed prices with prices obtained through market research for the same or similar items.

(vii) Analysis of data other than certified cost or pricing data (as defined at 2.101) provided by the offeror.

(3) The first two techniques at 15.404-1(b)(2) are the preferred techniques. However, if the contracting officer determines that information on competitive proposed prices or previous contract prices is not available or is insufficient to determine that the price is fair and reasonable, the contracting officer may use any of the remaining techniques as appropriate to the circumstances applicable to the acquisition.

(4) Value analysis can give insight into the relative worth of a product and the Government may use it in conjunction with the price analysis techniques listed in paragraph (b)(2) of this section.

 

Note the nonspecific shalls in paragraph(b)(1).

The material in red, which is merely tutorial, is already covered in the Contract Pricing Reference Guides, and Government personnel can be made familiar with it in training and directed to it by general reference.

Now, here are two examples of text that needlessly covers ground already covered by other agencies in other places in the CFR:

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19.001 Definitions.

As used in this part—

“Concern” means any business entity organized for profit (even if its ownership is in the hands of a nonprofit entity) with a place of business located in the United States or its outlying areas and that makes a significant contribution to the U.S. economy through payment of taxes and/or use of American products, material and/or labor, etc. “Concern” includes but is not limited to an individual, partnership, corporation, joint venture, association, or cooperative. For the purpose of making affiliation findings (see 19.101), include any business entity, whether organized for profit or not, and any foreign business entity, i.e., any entity located outside the United States and its outlying areas.

“Fair market price” means a price based on reasonable costs under normal competitive conditions and not on lowest possible cost (see 19.202-6).

“Industry” means all concerns primarily engaged in similar lines of activity, as listed and described in the North American Industry Classification System (NAICS) manual.

“Nonmanufacturer rule” means that a contractor under a small business set-aside or 8(a) contract shall be a small business under the applicable size standard and shall provide either its own product or that of another domestic small business manufacturing or processing concern (see 13 CFR 121.406).

 

The text in red is already (and better) covered in 13 CFR Part 121. Although Title 13 uses the term “fair market price,” it does not define the term, so the definition in FAR 19.001 might be useful and should be retained.

Now look at FAR 19.101, “Explanation of Terms,” which explains affiliates, annual receipts, and number of employees:

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19.101 Explanation of terms.

As used in this subpart—

“Affiliates.” Business concerns are affiliates of each other if, directly or indirectly, either one controls or has the power to control the other, or another concern controls or has the power to control both. In determining whether affiliation exists, consideration is given to all appropriate factors including common ownership, common management, and contractual relationships; provided, that restraints imposed by a franchise agreement are not considered in determining whether the franchisor controls or has the power to control the franchisee, if the franchisee has the right to profit from its effort, commensurate with ownership, and bears the risk of loss or failure. Any business entity may be found to be an affiliate, whether or not it is organized for profit or located in the United States or its outlying areas.

(1) Nature of control. Every business concern is considered as having one or more parties who directly or indirectly control or have the power to control it. Control may be affirmative or negative and it is immaterial whether it is exercised so long as the power to control exists.

(2) Meaning of “party or parties.” The term “party” or “parties” includes, but is not limited to, two or more persons with an identity of interest such as members of the same family or persons with common investments in more than one concern. In determining who controls or has the power to control a concern, persons with an identity of interest may be treated as though they were one person.

(3) Control through stock ownership.

(i) A party is considered to control or have the power to control a concern, if the party controls or has the power to control 50 percent or more of the concern’s voting stock.

(ii) A party is considered to control or have the power to control a concern, even though the party owns, controls, or has the power to control less than 50 percent of the concern’s voting stock, if the block of stock the party owns, controls, or has the power to control is large, as compared with any other outstanding block of stock. If two or more parties each owns, controls, or has the power to control, less than 50 percent of the voting stock of a concern, and such minority block is equal or substantially equal in size, and large as compared with any other block outstanding, there is a presumption that each such party controls or has the power to control such concern; however, such presumption may be rebutted by a showing that such control or power to control, in fact, does not exist.

(iii) If a concern’s voting stock is distributed other than as described above, its management (officers and directors) is deemed to be in control of such concern.

(4) Stock options and convertible debentures. Stock options and convertible debentures exercisable at the time or within a relatively short time after a size determination and agreements to merge in the future, are considered as having a present effect on the power to control the concern. Therefore, in making a size determination, such options, debentures, and agreements are treated as though the rights held thereunder had been exercised.

(5) Voting trusts. If the purpose of a voting trust, or similar agreement, is to separate voting power from beneficial ownership of voting stock for the purpose of shifting control of or the power to control a concern in order that such concern or another concern may qualify as a small business within the size regulations, such voting trust shall not be considered valid for this purpose regardless of whether it is or is not valid within the appropriate jurisdiction. However, if a voting trust is entered into for a legitimate purpose other than that described above, and it is valid within the appropriate jurisdiction, it may be considered valid for the purpose of a size determination, provided such consideration is determined to be in the best interest of the small business program.

(6) Control through common management. A concern may be found as controlling or having the power to control another concern when one or more of the following circumstances are found to exist, and it is reasonable to conclude that under the circumstances, such concern is directing or influencing, or has the power to direct or influence, the operation of such other concern.

(i) Interlocking management. Officers, directors, employees, or principal stockholders of one concern serve as a working majority of the board of directors or officers of another concern.

(ii) Common facilities. One concern shares common office space and/or employees and/or other facilities with another concern, particularly where such concerns are in the same or related industry or field of operation, or where such concerns were formerly affiliated.

(iii) Newly organized concern. Former officers, directors, principal stockholders, and/or key employees of one concern organize a new concern in the same or a related industry or field operation, and serve as its officers, directors, principal stockholders, and/or key employees, and one concern is furnishing or will furnish the other concern with subcontracts, financial or technical assistance, and/or facilities, whether for a fee or otherwise.

(7) Control through contractual relationships—

(i) Definition of a joint venture for size determination purposes. A joint venture for size determination purposes is an association of persons or concerns with interests in any degree or proportion by way of contract, express or implied, consorting to engage in and carry out a single specific business venture for joint profit, for which purpose they combine their efforts, property, money, skill, or knowledge, but not on a continuing or permanent basis for conducting business generally. A joint venture is viewed as a business entity in determining power to control its management.

(A) For bundled requirements, apply size standards for the requirement to individual persons or concerns, not to the combined assets, of the joint venture.

(B) For other than bundled requirements, apply size standards for the requirement to individual persons or concerns, not to the combined assets, of the joint venture, if—

(1) A revenue-based size standard applies to the requirement and the estimated contract value, including options, exceeds one-half the applicable size standard; or

(2) An employee-based size standard applies to the requirement and the estimated contract value, including options, exceeds $10 million.

(ii) HUBZone joint venture. A HUBZone joint venture of two or more HUBZone small business concerns may submit an offer for a HUBZone contract as long as each concern is small under the size standard corresponding to the NAICS code assigned to the contract, provided one of the following conditions apply:

(A) The aggregate total of the joint venture is small under the size standard corresponding to the NAICS code assigned to the contract.

(B) The aggregate total of the joint venture is not small under the size standard corresponding to the NAICS code assigned to the contract and either—

(1) For a revenue-based size standard, the estimated contract value exceeds half the size standard corresponding to the NAICS code assigned to the contract; or

(2) For an employee-based size standard, the estimated contract value exceeds $10 million.

(iii) Joint venture. Concerns submitting offers on a particular acquisition as joint ventures are considered as affiliated and controlling or having the power to control each other with regard to performance of the contract. Moreover, an ostensible subcontractor which is to perform primary or vital requirements of a contract may have a controlling role such to be considered a joint venturer affiliated on the contract with the prime contractor. A joint venture affiliation finding is limited to particular contracts unless the SBA size determination finds general affiliation between the parties. The rules governing 8(a) Program joint ventures are described in 13 CFR 124.513.

(iv) Where a concern is not considered as being an affiliate of a concern with which it is participating in a joint venture, it is necessary, nevertheless, in computing annual receipts, etc., for the purpose of applying size standards, to include such concern’s share of the joint venture receipts (as distinguished from its share of the profits of such venture).

(v) Franchise and license agreements. If a concern operates or is to operate under a franchise (or a license) agreement, the following policy is applicable: In determining whether the franchisor controls or has the power to control and, therefore, is affiliated with the franchisee, the restraints imposed on a franchisee by its franchise agreement shall not be considered, provided that the franchisee has the right to profit from its effort and the risk of loss or failure, commensurate with ownership. Even though a franchisee may not be controlled by the franchisor by virtue of the contractual relationship between them, the franchisee may be controlled by the franchisor or others through common ownership or common management, in which case they would be considered as affiliated.

(vi) Size determination for teaming arrangements. For size determination purposes, apply the size standard tests in paragraphs (7)(i)(A) and (B) of this section when a teaming arrangement of two or more business concerns submits an offer, as appropriate.

“Annual receipts.”

(1) Annual receipts of a concern which has been in business for 3 or more complete fiscal years means the annual average gross revenue of the concern taken for the last 3 fiscal years. For the purpose of this definition, gross revenue of the concern includes revenues from sales of products and services, interest, rents, fees, commissions and/or whatever other sources derived, but less returns and allowances, sales of fixed assets, interaffiliate transactions between a concern and its domestic and foreign affiliates, and taxes collected for remittance (and if due, remitted) to a third party. Such revenues shall be measured as entered on the regular books of account of the concern whether on a cash, accrual, or other basis of accounting acceptable to the U.S. Treasury Department for the purpose of supporting Federal income tax returns, except when a change in accounting method from cash to accrual or accrual to cash has taken place during such 3-year period, or when the completed contract method has been used.

(i) In any case of change in accounting method from cash to accrual or accrual to cash, revenues for such 3-year period shall, prior to the calculation of the annual average, be restated to the accrual method. In any case, where the completed contract method has been used to account for revenues in such 3-year period, revenues must be restated on an accrual basis using the percentage of completion method.

(ii) In the case of a concern which does not keep regular books of accounts, but which is subject to U.S. Federal income taxation, “annual receipts” shall be measured as reported, or to be reported to the U.S. Treasury Department, Internal Revenue Service, for Federal income tax purposes, except that any return based on a change in accounting method or on the completed contract method of accounting must be restated as provided for in the preceding paragraphs.

(2) Annual receipts of a concern that has been in business for less than 3 complete fiscal years means its total receipts for the period it has been in business, divided by the number of weeks including fractions of a week that it has been in business, and multiplied by 52. In calculating total receipts, the definitions and adjustments related to a change of accounting method and the completed contract method of paragraph (1) of this definition, are applicable.

“Number of employees” is a measure of the average employment of a business concern and means its average employment, including the employees of its domestic and foreign affiliates, based on the number of persons employed on a full-time, part-time, temporary, or other basis during each of the pay periods of the preceding 12 months. If a business has not been in existence for 12 months, “number of employees” means the average employment of such concern and its affiliates during the period that such concern has been in existence based on the number of persons employed during each of the pay periods of the period that such concern has been in business. If a business has acquired an affiliate during the applicable 12-month period, it is necessary, in computing the applicant’s number of employees, to include the affiliate’s number of employees during the entire period, rather than only its employees during the period in which it has been an affiliate. The employees of a former affiliate are not included, even if such concern had been an affiliate during a portion of the period.

 

I would delete the entire section. By statute, SBA gets to define those terms, which are better and more appropriately explained in 13 CFR §§ 121.102, 121.104, and 121.106.

There are several other such texts in FAR. Look at FAR Part 22, in which the DARC and CAAC have sometimes done little more than restate rules promulgated by the Department of Labor, which are already stated in other titles of the CFR. For a specific example FAR 22.1003-4, “Administrative limitations, variations, tolerances, and exemptions.” That material is already covered in 29 CFR 4.123(e).  All that is needed in FAR is a reference to the appropriate regulations and supplemental directives about what contracting officers must do in application and compliance.

Cutting the duplicate text will save the FAR councils from having to revise the FAR every time another agency changes its regulation. As it is now, every time the statutorily responsible agency changes its rules the FAR councils must then publish in the Federal Register to change the FAR, which is needless work. It will also prevent the possibility of conflicts between the FAR and the regulations promulgated by the statutorily responsible agencies and the confusion that is likely to ensue. Cutting the tutorial stuff will save paper. It will also make it clearer that rules are rules, but other stuff is just stuff.

As for cutting the tutorials, the FAR should be a rulebook, not a textbook or guide for the perplexed.

There will of course be people who will argue against such cuts on grounds that it will require contracting folk to look up other sources, and it is more convenient to include the information in the FAR to provide one-stop shopping, so to speak. There is merit to that argument, if you don’t mind navigating an ever increasingly voluminous and sometimes strange mixture of rules and stuff (guidance and tutorials) and if you don’t worry about conflicts in the coverage.

Status quo is always available.

Feel free to comment with your own recommendations.

Vern Edwards

Official contracting terminology and general legal terminology can push you off at the deep end if you aren't careful. Consider the term "multiple-award contract."

The Federal Acquisition Regulation uses the term "multiple-award contract" (MAC) in 21 places. FAR 2.101 defines "multiple-award contract" as follows:

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Multiple-award contract means a contract that is—

(1) A Multiple Award Schedule contract issued by GSA (e.g., GSA Schedule Contract) or agencies granted Multiple Award Schedule contract authority by GSA (e.g., Department of Veterans Affairs) as described in FAR part 38;

(2) A multiple-award task-order or delivery-order contract issued in accordance with FAR subpart 16.5, including Governmentwide acquisition contracts; or

(3) Any other indefinite-delivery, indefinite-quantity contract entered into with two or more sources pursuant to the same solicitation.

Thus, as used in (3), a "multiple-award contract" is "a" (singular) contract with two or more contractors. FAR 16.504(c)(1)(ii)(D) says:

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(D) (1) No task or delivery order contract [singular] in an amount estimated to exceed $112 million (including all options) may be awarded to a single source unless the head of the agency determines in writing that—

(i) The task or delivery orders expected under the contract are so integrally related that only a single source can reasonably perform the work;

(ii) The contract provides only for firm-fixed price (see 16.202) task or delivery orders....

So a single contract must be awarded to more than one source? Does that mean there must be at least two company names in Block 7 of Standard Form 26 or Block 13 of SF 1447? I doubt that anybody who has been around for a while thinks so, so why say it like that, or seem to? Why not be clear? We've got a lot of new people getting involved in government contracts every day. In order to avoid confusing them, shouldn't we express ourselves as clearly as possible?

Is the terminology "multiple award contract" appropriate? Is what we call "a multiple-award contract" (singular) a single contract with two or more contractors, or is "it" (singular) really several separate contracts with separate contractors? Each contract has its own number and bears the name of only one contractor. In most cases the terms of the separate contracts are not entirely identical, e.g., labor rates, indirect cost rates, and prices differ. When there are both large and small business contractors under a "multiple-award contract," the small business contractors might have to comply with limitations on subcontracting that do not apply to the large business contractors.

"Multiple-award contracts" are not "joint contracts," as that term is used in contract law and defined in Black's Law Dictionary 4th ed.:

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joint contract (17c) A contract in which two or more promisors are together bound to fulfill its obligations, or one in which two or more promisees are together entitled to performance.

Some authorities make a distinction between joint and several contracts. See Contracts, Specifications, and Law for Engineers, 4th ed,, by Bockrath, p. 20:

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Whether the rights and duties created by a particular contract are intended to be (1) joint or (2) several or (3) joint and several is sometimes a difficult question of interpretation. Promises of a number of persons (which promises appear in a single instrument) are presumed to be joint unless a contrary intention is evident from the inclusion of obvious words of severance...

Where a contract is joint, the various obligators must all be joined as parties to any action brought upon the agreement, and release by plaintiff of one obligator discharges the others as well. In contrast, each person bound on a several contract has a liability separate from that of any fellow obligor thereunder, and each individual's obligation must be separately enforced.

The distinction between joint and several contracts hinges on the answer to this question: Did all the persons obligated under the agreement promise one and same performance, or did each one promise only a separate portion of the total?

Emphasis added. Or, as put in Calamari and Perillo on Contracts, 6th ed., by Perillo, in the chapter entitled, "Joint and Several Contracts," p. 697, the question is:

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... whether mulitple promisors of the same performance have promised as a unit (jointly), or have promised the same performance separately (severally), or both as a unit and separately (jointly and severally).

All of those are instances of a single contract document that bears the names of more than one contractor.

Based on the entries above, it seems clear that a government "multiple-award contract" is not a joint contract. There is no single contract document bearing the names of multiple contractors. While all of the contractors have made similar (not identical) promises--to perform as ordered at stipulated prices or rates--it is clear that they are obligated under separate contracts. Failure to perform by Contractor A does not make Contractor B subject to termination for default.

Now consider FAR 19.502-4:

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In accordance with section 1331 of Public Law 111–240 (15 U.S.C. 644(r)) contracting officers may, at their discretion...

(b) Set aside part or parts of a multiple-award contract for any of the small business concerns identified in 19.000(a)(3). The specific program eligibility requirements identified in this part apply....

Does the phrase "part of parts of a multiple-award contract" mean (a) part or parts of a single contract (in the sense of one of two line items, or two of the ten tasks in a statement of work), (b) separate contracts under a single acquisition, or (c) both?

It strikes me that "multiple-award contract" is inappropriate and potentially confusing. What we call "a multiple award contract" is really a set of entirely separate contracts--each with its own contract number, each bearing only one contractor's name and address, and each separately funded, each awarded to fulfill separate requirements that will be specified in task or delivery orders. What we call "a multiple-award contract" is really a multiple-award acquisition--i.e., an acquisition that results in two or more separate IDIQ contract awards for all or part of specified requirements for supplies, services, or construction. The contractors who receive awards then compete for orders.

Why do we contracting folk create and use inappropriate terminology? We just confuse ourselves. Or maybe we start out confused and that confusion shows up in our terminology. The key to better terminology is better understanding of basic concepts. Inappropriate terminology reflects confusion about concepts. And we spread our confusion through the use of inappropriate terminology.

Am I quibbling? Well, yes, maybe. But you can't master a subject like contracting, if you ever can, if you don't master it's specialized terminology.

Some other time I'll discuss the concept of a "severable contract," which Black's defines as follows:

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A contract that includes two or more promises each of which can be enforced separately, so that failure to perform one of the promises does not necessarily put the promisor in breach of the entire contract.

Is a contract for severable services a severable contract?

Vern Edwards

An article in today's (Sept. 27, 2016) Wall Street Journal, "Amazon's Newest Ambition: Competing Directly with UPS and FedEx," the paper reports that Amazon is creating its own delivery system in response to rising shipping costs. An interesting comment:

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To constrain rising shipping costs, the online giant is building its own delivery operation, setting up a clash with its shipping partners...

Amazon’s goal, these people say, is to one day haul and deliver packages for itself as well as other retailers and consumers—potentially upending the traditional relationship between seller and sender...

Inside the company, executives describe, in the words of one senior official, how Amazon “is building a full-service logistics and transportation network effectively from the ground up.”

Amazon’s push into the shipping sector reflects a willingness among today’s powerful tech companies to defy the traditional constraints of business and leap into new ones.

This seems to be a departure from the business model that developed in the 1980s and 1990s, in which a business identifies and focuses on its core competencies and outsources everything else. https://www.caycon.com/blog/2012/10/focus-on-core-competencies-and-outsource-the-rest/

There has even been talk about outsourcing core competencies. http://www.supplychain-forum.com/documents/articles/Premus & Sanders.pdf

Goodness knows, the military has been accused of doing core competencies during the wars in Afghanistan and Iraq. https://www.brookings.edu/articles/outsourcing-war/

The government has pursued the outsourcing model (in its governmental way) for three decades now, and not without problems, as reflected in the misguided foray into "performance-based" contracting. Outsourcing has been administratively costly and time-consuming and has produced somewhat dubious results.

Does the article about Amazon and its comment about the willingness of powerful tech companies to defy traditional business constraints suggest that we might be witnessing the return of an old business model within some industries?

We've had the revolution. Are we seeing the beginnings of reaction? Has the cycle come full circle? Or are we just seeing a bold move by a bold entrepreneur, the kind of thing the government can't do.

Say, isn't the OFPP Administrator going to Amazon? Maybe some of you should check to see if she's accepting resumes.

Vern Edwards

 

DOD has announced the names of the 18 appointees to its Section 809 Advisory Panel on Streamlining and Codifying Acquisition Regulations. You can see their names and qualifications here:

http://www.dau.mil/sec809/default.aspx.

The panel's congressionally mandated mission is as follows:

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Section 809 of the 2016 National Defense Authorization Act established the Advisory Panel on Streamlining and Codifying Acquisition Regulations (809 Panel) to review the acquisition regulations applicable to the Department of Defense with a view toward streamlining and improving the efficiency and effectiveness of the defense acquisition process and maintaining a defense technology advantage. The panel is charged with making recommendations for the amendment or repeal of such regulations that the panel considers necessary, as a result of such review, to: 

·         Establish and administer appropriate buyer and seller relationships in the procurement system 

·         Improve the functioning of the acquisition system

·         Ensure the continuing financial and ethical integrity of defense procurement programs 

·         Protect the best interests of the Department of Defense

·         Eliminate any regulations that are unnecessary for the purposes described

I have to say that I'm disappointed by the appointments. It's not that the appointees are not qualified or that I object to anyone's inclusion. They're distinguished and eminently qualified. The problem is that, unless I'm mistaken, they're old.

Yes, I said old.

Was there not even one GS-15 or SES in their early 30s with recent working-level experience who is sufficiently well qualified to provide advice and make recommendations for the amendment and repeal of regulations? Not one person in their late 20s or early 30s? Not one? The panel is comprised entirely of people whom I'd call, no offense intended, the usual suspects. I know some of them and like the ones I know, but that makes no difference.

Look, I don't expect much. The panel will work hard and produce a glossy report in 2018 (2018???!!!--why so far off?) that will be much discussed, I'm sure, for at least a month, maybe even two. We've had a lot of reform panels over the years and, ultimately, their work hasn't really come to much. (Anyone remember the SARA panel?) Oh, the 809 Panel is very likely to recommend at least some changes that will be made, but they won't change the system's ultimate character and outcomes, because reforms rarely address the system's fundamental problems. It's been more than 20 years since the Federal Acquisition Streamlining Act of 1994, yet I just saw a 47-page solicitation for 12 sleeper sofas, a buy that’s probably worth less than $18,000, yet incorporates something like 200+ pages of text by reference. Any little money saved by competition will be consumed by the cost of the process.

What we need from the 809 Panel is a final report that shows just how looney the system has become. We also need a final report that makes really radical recommendations. How about taking DOD out of the FAR system and letting it go back to having its own Defense Acquisition Regulation? (The two-council system is a mess.) How about freeing the Defense acquisition regulations from Paperwork Reduction Act reviews? (Congress and the President are imposing most of the paperwork, so what’s the point?) How about raising the simplified acquisition threshold to $1 million and taking simplified acquisition procedures out of the regulation and putting them into a separate guidebook so people doing simplified will be less regulation-obsessed? How about exempting simplified acquisitions from some socio-economic laws and programs? How about raising the dollar threshold for the submission of certified cost or pricing data to an amount at which the likely benefit will exceed the requirement's costs. ($50 million is about right. Maybe even $100 million.) How about applying the cost accounting standards only to contracts under which there is a likelihood of requests for equitable adjustment and significant claims worth more than, say, $5 million? How about recommending that certain contractor selections be based on qualifications, rather than technical proposals and price, and followed by unrestricted, in-depth, one-on-one negotiations (not "discussions") with the selectee?

But I fear that such a distinguished panel will consider such recommendations to be too far out. Only the young would be so radical and indecorous.

The future belongs to the young. It's they who will be tomorrow's acquisition (and national) leaders, and so it’s they who should take the lead in recommending changes. The folks of my generation have had our chances. We need to step aside and lend the young a hand. The old heads need to be there mainly to tell the young about their experiences, how they’ve been there and done that and why it didn't work the last few times, so that the young can go forward without making the same mistakes. (It would be trite at this point to quote Bob Dylan, so I won't do it. But most of you know the song I'm thinking about.)

I wish that Deirdre Lee, the panel chair, would prevail upon DOD to find and appoint at least two young radicals to the panel--persons in their late 20s or early 30s. I wish that the panel would actively seek the ideas and opinions of today's young chiefs of contracting offices and section chiefs. I wish that they'd hand over the task of writing the final report to young thinkers and firebrands. 

I understand how the system works and why it works the way it does. Sadly, I do understand. I’m not naïve. But isn’t it time for subversive leadership from the old? What will they have to lose in 2018? Why not let the young set Congress’s hair on fire?

It’s time, at long last, long past time, for the old timers to bring people to the front who don't care how and why the system works the way it does, who want to take a new path, and who don’t mind kicking dirt on some shoes.

It's long past time.

 

Vern Edwards

"A question. Since before your sun burned hot in space and before your race was born, I have awaited a question."

    Star Trek, the Guardian in “The City on the Edge of Forever.”

Early on in college I realized that questions were the gateway to learning. I didn’t put questions to my professors very often. I asked them mainly of myself, then learned by looking for answers. It took time, which was murder under the quarter system of the University of California. (I swear, I don’t think they were trying to teach us anything, just move us through the process.)

I learned that I had to ask good questions. Dumb questions (and there is such a thing as a dumb question) were the gateway to nowhere.

But what’s a good question?

I have long believed that the ability to ask good questions is one of the most important skills that a contract specialist must master. The ability to ask good questions is essential to learning the various facets of the work and to doing the work well.

Suppose you are planning to negotiate a sole source contract price and you have received a price proposal and certified cost or pricing data. You’ve conducted a preliminary cost analysis and developed a list of questions. The time has come for face-to-face fact-finding.

Your philosophy is that cost analysis is just reverse cost estimating. In order to develop a pre-negotiation objective you intend to disassemble the contractor’s cost estimate and profit objective, understand them, assess their reasonableness, put them back together and see what you get, then develop your negotiation plan.

You’re sitting in the contractor’s facility, across from their lead negotiator and the other members of its team. They are waiting for you. The intend to be honest. They will answer you truthfully, but they are not going to help you ask and they are not going to be forthcoming. If you want information, you are going to have to ask for precisely what you want.

So, what’s your first question?

*        *        *

Wifcon Forum long ago transitioned from a true discussion forum into a Q&A website, and much like someone passing through Elizabeth Kubler Ross’s stages of grief at the prospect of death, I have transitioned from shock, through anger and annoyance, to disappointment and depression, and finally to acceptance of what seem to me to be a lot of poor quality questions. I'm not the only one who thinks so. Some of us discuss the problem often, but behind the scenes.

What do I mean by “poor quality”? The best way to answer that is to show you some examples, all asked by persons who posted anonymously, without any user name, more than a decade ago. Here’s one from early 2003:

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We had a FP purchase order for support services that ended 9/30/02. We did not use all of the funds on the PO. We sent a final invoice to the gov't for the remaining money not spent.

I don't have experience with a FP Purchase Order so I hope you can clarify this for me.

The invoice references FAR Part 16.202-1 which states:

A firm-fixed-price contract provides for a price that is not subject to any adjustment on the basis of the contractor's cost experience in performing the contract. This contract type places upon the contractor maximum risk and full responsibility for all costs and resulting profit or loss. It provides maximum incentive for the contractor to control costs and perform effectively and imposes a minimum administrative burden upon the contracting parties.

Is there another FAR part that allows for us to bill for the remaining funds? Thanks. I appreciate your help[.]

Here is another, from December, 2000:

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What is the standard to apply when calculating an equitable adjustment for a deductive change?

We have a situation where a change was made to a construction contract that reduced the quantity of an estimated quantity CLIN by approximately 50%. The contractor submitted a REA for the change. The REA was for a share of the cost savings that resulted from the deleted work. Essentially, the contractor is saying that he is entitled to share in the cost savings because he found a way to do the work more efficiently than originally planned.

I've never seen an approach to a deductive change like this. Is it proper?

Here is another, also from 2000:

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What paragraphs of FAR 52.212-4 can be used for modification authority in block C of the SF 30 when modifying a delivery order written against a commercial contract? If the Government does not accept nonconforming services, why would it not be appropriate for the CO to use 52.212-4(a), Inspection/Acceptance, to deobligate what now are excess funds. Second part to this question. When can the modification authority for a delivery order ride on the modification authority used for the basic contract when the revisions to a contract have to be carried over to the delivery order.

All punctuation as in originals.

I wish I could say that those are rare examples, but they are all too common. I could have used a few from last week, but I didn’t want to hurt anyone’s feelings.

I’m sure that those questions made perfectly good sense to those who asked them. They might make good sense to some of you who are reading this blog post. But not to me.

Okay, so what makes a question “good”? As it turns out, that is not as easy a question to answer as you might think.

I wanted to write a well-reasoned answer to my own question, which itself might be a dumb question, so over the course of the past several months I have read extensively and sometimes deeply in the theory of questions. (The theory has a name: erotetics) and the practice of questioning. It is an important part of logic, science, rhetoric, law, and semantics, and works range from the highly technical, such as Belnap, The Logic of Questions and Answers (Yale, 1976) and Harrah, “A Logic of Questions and Answers,” Philosophy of Science, Vol. 28 (1961) pp. 267-273, to those that are more readily accessible to nonspecialists, such as the entry, “Questions,” at the Stanford Encyclopedia of Philosophy, http://plato.stanford.edu., the entry “Questions,” in The Encyclopedia of Philosophy, Vol. 7 – 8, and in The Theory of Questions: Erotetics through the Prism of its Philosophical Background and Practical Applications, by Anna Brożek (Rodopi, 2011).

A search of the internet led me to a lot of advice about how to ask a good question. You can find an example of such advice (a pretty decent one) at this site:

http://faculty.gvc.edu/ssnyder/121/Goodquestions.html

You can find another example here:

http://www.dummies.com/how-to/content/ten-tips-for-asking-good-questions.html

The advice strikes me as sound, though not entirely satisfying.

Recently, however, I came across something that stopped me in my tracks -- a short article by Wendell Johnson (1906 – 65), “How to Ask a Question,” published in Journal of General Education in April, 1947, republished in ETC: A Review of General Semantics (Winter 1948), and published again in a retrospective in ETC: A Review of General Semantics (Fall 1983). You can find it here: http://www.jstor.org/stable/42576616?seq=1#page_scan_tab_contents, but you need a subscription or access through a university or public library.

It’s very short, only five pages, but dense. The author packed a lot of thinking into those pages. You have to read deeply. I have added it to my list of essential reading for contracting practitioners.

Because it may not be readily accessible by all, here are a few quotes to give you the flavor of the thing:

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Even among college upper classmen and graduate students one finds in varying degrees a naive belief that there are knowers -- that the way to get the answer to a question is simply to ask the man who knows it.

*     *     *

[T]he techniques of fruitful inquiry necessarily involve certain ways of using language, particularly in the framing of questions. Just any old string of words, arranged grammatically and with an interrogation mark at the end, won't do.

*     *     *

[A]n answerable question is one that implies the observations, or reliably reported observations, needed to answer it. Any question that does not meet this test -- any question, that is, for which no specifications are supplied as to the particular observational procedures to be used in answering it -- is to be classified as meaningless for purposes of fruitful inquiry, as nonsense from an investigative point of view. From a psychiatric point of view it may be richly meaningful, of course. This is to say that anyone who can analyze and interpret such a question in a way that clarifies the confusion of the one who asks it qualifies, to this extent, as a psychiatrist . Anyone who unhesitatingly answers the question, without recognizing its meaningless character, qualifies as surely as a fool . One may, with benefit, regard this as one of the more important items in that vast category known as useful but seldom used information.

*     *     *

The fundamental skill to be taught is that of specifying the procedures to be used in making the observations needed to answer any questions one asks -- and in specifying the terms in which the observations are to be reported . Except as the questioner provides these specifications, he can hardly expect anyone else to divine what he is asking, nor can he be depended upon to recognize the answer himself if by some odd chance it should appear.

But my favorite quote in the piece, and one of my all-time favorite quotes, is this:

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It is known almost as widely as it is disregarded that a fool is one who knows the answers to the questions that only a fool would ask. It follows that effective insurance against becoming a fool oneself lies in knowing what sorts of questions and answers these might be. It would appear reasonable to assume, on this basis, that a major responsibility of our schools and colleges is that of providing adequate instruction in the techniques of fruitful inquiry.

Yep, my question, "What is a good question?", was a fool’s question. So I’m going to refine it. That might take me a while. In the meantime, give Wendell Johnson's article a read. It will be well worth your time and thought.

Vern Edwards

 

Innovation: How Not To Go Down In Flames

 

The role of each member of the acquisition team is to exercise personal initiative….

Contracting officers should take the lead in encouraging business process innovations….

 —FAR 1.102

                                              There’s guns across the river aimin’ at ya

                                         Lawman on your trail, he’d like to catch ya

                                              Bounty hunters, too, they’d like to get ya

                                              Billy, they don’t like you to be so free

                                          —Bob Dylan, “Billy 1”

 

In a thread in the Wifcon Forum Contracting Workforce category entitled, “Personal Initiative: Who Has Used It?”, Bob Antonio asked for answers to four questions:

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  1. Have you ever tried personal initiative but you were shot down by "higher ups" because the FAR did not authorize something?
  2. Have you ever used personal initiative and your idea was supported by "higher-ups?"
  3. In federal contracting, is it easier to be human or to be an automaton?
  4. If you answer automaton to #3, is it because of GAO protests, supervisors, etc?

      I’m especially interested in the answers to the first question: “Have you ever tried personal initiative but you were shot down by ‘higher ups’ because the FAR did not authorize something?”

So far, Bob has received seven responses. Five of the seven were “Yes.” The “yes” answers are the ones that interest me. I wonder why the would-be personal initiators got shot down, given the persistent calls for innovation these days. Even some blockheaded bureaucrats say that they want to change their world.

My complaint about all the presidential appointee/career management calls for initiative and innovation is that they they’re not honest about just how hard it is to move a bureaucracy in a new direction, even if by only a compass point or two. Such faithless calls risk alienating the very people the bosses claim to want to motivate, especially newcomers, who might react badly when their initiatives are rejected. The bosses may be preparing fertile ground in which to grow a new generation of cynics.

In my experience, many, maybe most, working level proposals for innovation fail, because the initiators didn’t know what they were in for, didn’t understand the need for intelligence and tactical planning, and made a poor presentation. They wanted to beneficially change their agency’s behavior, but they didn’t know how to go about it in the right way.

*  *  *

Suppose that you are a journeyman contract specialist in a “conservative” Government contracting office. Suppose further that you have just completed a three-day seminar in source selection in which a charismatic instructor argued persuasively that you could streamline and speed up the source selection process by asking for oral presentations from offerors instead of written technical proposals. The instructor even pointed out that the technique is expressly authorized  by FAR 15.102.

You have no hands-on experience with oral presentations. You’ve never seen one, and you haven’t read much about them. But, newly enthused, you go back to your office, make some inquiries, and learn that your agency has never used them in place of written technical proposals. So you go to your boss and propose asking for oral presentations instead of written technical proposals in an upcoming source selection to which you have been assigned.

Your boss, the Contracting Officer, who has not used oral presentations and who is not really expert at source selection (though he thinks he is), cuts you off. He says that oral presentations will expose the agency to protests about improper discussions. He also says that there’s no good way to document the presentations or the evaluations of them. Bad idea. Forget about it.

You visit an attorney in the legal office, who says much the same.

You talk to colleagues, but none of them have used oral presentations and don’t know much about them.

You approach the program manager, who is not expert in source selection, has no experience with oral presentations, and doesn’t understand how oral presentations can replace written technical proposals, even though she says that written proposals are a time-consuming pain to read, evaluate, and score. She worries about how you would incorporate oral presentations into a contract. She asks a lot of questions about the process, to which you have no definite answers.

Finally, by happenstance, you run into the director of contracts, your boss’s boss, at lunch in a nearby sandwich joint. You mention your ideas to her. She listens politely, but says that she hasn’t the time right then to discuss the matter. She tells you to make an appointment to come to her office. Later that afternoon your boss fusses at you for going over his head. He tells you again to forget about it.

You’ve gone down in flames, crashed, burned. So you cut and paste the traditional proposal preparation instructions and grumble about the higher-ups and the lawyers.

What have you learned? Well, if you paid attention, you should have learned that you just tried to sell the idea of using a bicycle to people who’ve never seen a wheel.

*  *  *

Before we go any further, it’s a good idea to keep in mind that many of today’s established contracting rules and procedures were once innovations. The Truth in Negotiations Act was an innovation of the late 1950s, as was the source selection tradeoff process, sophisticated numerical proposal scoring, and the modern concept of discussions with offerors within a competitive range. The formal evaluation of past performance was an innovation of the mid-1960s that failed and was revived in the 1990s. The imposition of Cost Accounting Standards was an innovation of the 1970s, as was the proposal color-rating system, which was designed to solve problems created by misuse of numerical scoring. The Competition in Contracting Act was an innovation of the early 1980s. Electronic proposal evaluation software was an innovation of the 2000s.

Another thing to keep in mind is that managers and staffs in organizations involved in Government contracting are geared for rule compliance. Failure to comply can have consequences, sometimes serious ones. It would be one thing if the rules were clear and unambiguous, but they’re not. The rules are badly written and subject to lawyerly interpretation games and to time-consuming and costly litigation. The compliance mind casts a shadow over all proposals  to innovate. Compliance is not risky. Innovation might be very risky. These realities tend to make managers and staffs conservative and reluctant to embrace change that is promoted from the bottom up.

What makes me mad at political appointees and career managers who call for innovation is that they fail at one of their most important leadership functions—teaching their people. If you want people in a compliance-oriented organization to innovate, you must teach them how and pave the way through the bureaucracy. Senior managers who encourage people to innovate without giving them navigation charts for the Sea of Bureaucracy and a reliable course heading deserve a kick in the pants. Some of their best people will end up lost.

Most of you initiator/innovators don’t have good senior managers, so you will have to plot your own course. Suppose that you want to innovate with oral presentations in source selection. Start by asking yourself some questions:

1. How well do you know and understand the applicable source selection rules and practices —not just as they appear in FAR, your agency supplement and policy documents, and in your agency’s handbooks and manuals, but also as interpreted and applied by the GAO and the Court of Federal Claims? What do you know about the history of those rules and practices, where they came from and why? How deeply have you thought about them?

2. What do you know about the concept of the technical proposal and about their typical content? What do you know about preparing them? What do you know about the actual experience of evaluating them? What do you know about their legal role in contract formation and administration? What have you read about the criticisms of them?

3. What have you read about oral presentations in the professional literature, in publications such as Public Contract Law Journal and Contract Management magazine? Did you Google <oral presentations in source selection> and read what you found?

4. Do you know how many protest decisions there have been in which oral presentations were an issue? How many of them have you read? Did you take notes about the kinds of acquisitions in which oral presentations were used, the particular methods that were used, and the issues involved? Did you compile won/lost statistics and reasons?

5. Did you check the past year’s listings at FedBizOpps to find acquisitions in which oral presentations were employed? Did you get the solicitations? Did you call the contracting officers to ask how they went about it, how it came out, and lessons learned?

6. Did you conduct market research to find out whether oral presentations or something similar (marketing presentations or “sales pitches”) are used in the industry with which your agency will engage in the upcoming acquisition?

7. Did you do a pro and con analysis? What would your office gain, if anything, by evaluating oral presentations instead of written technical proposals? What might it lose, if anything, not just in terms of potential protests, but also in terms of information necessary to make a sound a source selection decision? What are the risks? What are the benefits? What are the tradeoffs?

8. Did you develop a detailed plan and process for using oral presentations? Does it reflect what you have learned? Is it practical? Will it show the decision maker and others that you’re not just winging it?

9. Do you know the bureaucratic structure of your headquarters organization, its history, and its temper? Do you know the backgrounds of the decision maker and other affected and influential staff? Do you know their likely issues, questions, and objections, and are you ready with detailed responses? Do you have allies? Do you know your opponents?

10. Did you assemble pertinent and verifiable facts, prepare a persuasive written argument and appropriate presentation, and choose the right time, place, and audience at which to present them? Did you invite the right people to attend? Did you rehearse?

11. Did you think tactically about how to work your way through the layers of bureaucracy: whom to approach first, whom next, and how to build support and momentum toward your objective before hitting up the decision maker? Did you think about how to prepare for attacks by opponents against your argument's flanks and rear?

Sound very formal and like a lot of work? Well, it is. And it might require some or all of that if you want to initiate an significant innovation. While some innovations are produced by flashes of insight and inspiration, most, especially big and important ones, are produced by fact gathering, analysis, deep thinking, careful planning, and good tactics.

You probably won’t have to go to all that trouble when proposing minor innovations that effect only one routine, relatively small dollar acquisition in only one office. For that kind of thing you might be able to walk into the boss’s office and simply say: “I’d like to try something…” But when proposing a “major” change in policy or procedure, get into the research, planning, and persuasion mode.

      Every working-level proposal for innovation is a sales pitch that, hopefully, will lead to a negotiation. A famous expert in negotiation once arrived home from a business trip only to be pounced upon by his teenage son, who presented him with all sorts of ideas that he wanted his father to buy into right away. According his son’s recollection, the father was quiet for a moment, then said:

“My ideas are my old friends and your ideas are your old friends. You may have some very good friends. But you cannot expect me to throw away my friends and adopt your friends at a moment’s notice, as soon as you introduce them to me. Give me time to get used to them and I may adopt them. But I need that time—I need that acceptance time.”

See Gary Karrass, Negotiate to Close: How to Make More Successful Deals (1987).

    Mid and senior-level bureaucrats, who are not always up to speed on the latest and greatest ideas, and who tend to be conservative, will need a persuasive introduction to your friends. Selling innovation takes time, thought, tactics, preparation, and guts. By the way, that’s half the fun. And keep in mind that a well-done study, plan, proposal, and presentation might attract the attention of a higher-up and be a big career boost, even if the proposal is rejected.

Vern Edwards

I just read an online column in which the author (1) asserted that the government neglects contract performance management to its detriment and (2) called for the devotion of more resources to that acquisition function. I don’t know on what basis the assertion was made or whether it is true, but I would not be surprised to learn that it is. My impression is that most contracting people devote most of their time to acquisition planning, contractor selection, contract award, and to unavoidable contract mods and postaward administrative matters. I suspect that most have little or no time for actual contract performance oversight and management.

If that is true, why would it be so? I am not sure, but I believe that a major contributing factor is the multiple-award task order contract. (By “task order contract” I mean an indefinite-delivery indefinite-quantity (IDIQ) contract for services.)

We spend more on services than supplies, and we conduct a lot of competitions in order to spend that money. We conduct competitions under FAR Part 13, FAR Part 14 (a few), FAR Part 15, FAR Subpart 8.4, and FAR Subpart 16.5. The reason for conducting Part 13, 14, and 15 competitions is obvious and understandable, but the Subpart 8.4 and 16.5 task order competitions are competitions on top of competitions. We do them because Congress wants agencies to continue the pursuit of lower prices after contract award and keep pressure on contractors to perform well.

Competition is resource intensive, time-consuming, and costly to all involved. How much time and money do all the 8.4 and 16.5 competitions cost and how much money, if any, do they actually save in the long run? Do they, in fact, result in better quality than could be had through effective contract management? No one knows, because no one keeps track.

The preference for multiple awards of task order contracts was a provision of the Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355, §§ 1004 and 1054. The FAR councils implemented the statutory preference in FAR 16.504 and 16.505. FAC 90-33, 60 FR 49723, Sep. 26, 1995.

I commented on the proposed rule, 60 FR 14346, Mar. 16, 1995, in an article for The Nash & Cibinic Report entitled, “The New Rules for Multiple Award Task Order Contracting” (June 1995, 9 N&CR ¶ 35). In that article, I said:

[T]he proposed rule is significant because of the policy preference for multiple awards and task order competition. Presumably, multiple awards and competition among the awardees for task orders would pressure the awardees to continuously increase their productivity and the quality of their output. But multiple awards and task order competition could also increase the administrative cost and lead time associated with the issuance of task orders, and those effects could cancel out or even overwhelm the advantages accruing from task order competition. Although the idea of awarding multiple task order contracts for the same service and requiring that the awardees compete for individual task orders is not new (a few agencies have been doing this for many years), the vast majority of task order contracts have been single awards. Thus, the new policy can be expected to have a significant effect on procurement operations.

I also said:

The multiple award preference policy states that every awardee must be given a “fair opportunity” to be considered for the award of each task order in excess of $2,500. The proposed rule leaves the choice of evaluation factors to the CO's discretion. The CO need not publish a synopsis, solicit written proposals, or conduct discussions with awardees prior to the award of a task order, proposed FAR 16.505
(1). The rule precludes protests against task order award decisions. Agencies must appoint task order “ombudsmen” to handle complaints from awardees about task order selections, proposed FAR 16.505
(4).

Notwithstanding these liberal policies, it is not difficult to imagine Government procurement officials conducting a mini-source selection before the issuance of each task order. Some will almost certainly consider a more formal procedure to be necessary to ensure fairness. One can easily imagine requests for proposed task order “performance” plans or “management” plans, especially for task orders of significant dollar value. One can also imagine requests for extensive cost breakdowns, certified cost or pricing data, and proposal audits. If too complex and demanding, such procedures would significantly increase an agency's administrative costs, extend the lead time associated with task order issuance, and force awardees to incur significant costs in the preparation and negotiation of task order proposals.

And I concluded:

The objectives of the proposed rule about the task order contract multiple award policy preference are unstated, but one objective is undoubtedly to lower the cost of services provided under task order contracts by maintaining competitive pressure on contractors throughout the life of the contract. This may be a reasonable expectation based on theory, but there are many reasons to believe that it will not work as intended. The proposed rule of March 16, 1995, if issued unchanged as a final rule, will not increase the policy's prospects for success. It simply fails to address all the issues that the policy creates in ways that will assist working-level procurement officials to implement the policy in an intelligent manner.

Well, we all know what happened after FASA and FAC 90-33. The number and dollar value of acquisitions of services under multiple-award task order contracts (and GSA FSS contracts) soared. There was a lot of misuse and sloppy practice. In reaction, Congress and the FAR councils made the once liberal rules more voluminous and restrictive, not only for task order contracts under FAR Subpart 16.5, but also for orders against GSA Federal Supply Schedule contracts under FAR Subpart 8.4.

Competition is an essential part of acquisition policy, but competitions clog the acquisition system by absorbing a lot of human resources, taking a lot of time, and costing a lot of money. I believe that the multiple-award preference has made for a lot of unnecessary and ineffective competitions. It is not at all clear that the contracting results have been better than they would have been had agencies been allowed to make single awards without hectoring by the GAO, review teams, IGs, and other critics. Would America really be worse off if agencies simply conducted one competition for a task order contract, chose one contractor, awarded one contract, and focused on getting the best performance from that firm under that contract?

Multiple awards can be useful and have a place in acquisition practice, but I think that the statutory and regulatory preference for multiple awards has been one of the worst things that has happened to postaward contract management. It has diverted precious human resources to processes of dubious effectiveness and away from work that, if done well, would likely have a much more direct and immediate impact on results.

If anyone believes that better contract performance management yields better results and is looking for more resources to devote to that work, start by seeking the elimination or moderation of the multiple-award preference.

Four ideas to make elimination or moderation of the multiple-award preference more palatable to Congress:

1. Limit the duration of ordering periods under single-award task order contracts to three years, including options.

2. Amend the applicable statutes to expressly allow agencies to renegotiate prices and rates in single award contracts and prices and rates in contract extension options after contract award, without conducting a new competition.

3. Allow agencies to negotiate and award a new contract of up to three years duration with one of the original competitors without conducting a new competition if the original awardee's contract is terminated for convenience or default during the first year of the ordering period.

4. Develop a special course in services pricing and price negotiation for all COs who manage task order contracts and require them to attend and successfully complete the course within the first year of their assignment to such a contract.

Vern Edwards

I just read a very strange blog entry by Steven Kelman, former OFPP administrator, writing at Federal Computer Week online on November 20. The title of the entry is: “Improving statements of work to improve contract management.” You can access it at:

https://fcw.com/blogs/lectern/2015/11/kelman-contracting-better-sows.aspx.

I don't ordinarily read Kelman's FCW blog, "The Lectern," but someone sent it to me and I was intrigued by the title of the entry. i thought I might learn something.

Kelman begins by saying he’s been looking for ideas about how to improve contract management and had a conversation with the CEO of a small company whose ideas focused on writing and managing statements of work. She said that in her experience statements of work were often “poor.” Regrettably, she wasn't more specific about what makes them “poor,” because Kelman doesn’t provide any details.

The CEO complained to Kelman that it is often the case that statements of work are written by talented but busy program staff who do not end up working on the contract. Instead, the statement of work is handed over to an unenthusiastic contracting officer’s representative who is not a subject matter expert. Meanwhile, the contracting people are too busy to get involved unless there is a crisis.

The CEO’s specific suggestion? Have contracting officers use the “advisory downselect procedure” (advisory multi-step process) described in FAR 15.202 to reduce the pool of competitors to a “small number of finalists” with which the contracting folk could then work to develop a good statement of work. “[H]aving several contractors work on the joint SOW would guard against rigging the specs in favor of any one contractor’s solution.” The agency would then go on with a source selection.

That’s it. Anyone who has ever written a statement of work for a complex contract and been involved in committee work will understand why I think that would be a project to avoid like a mine field.

Kelman concludes his blog post by asking readers to “join the dialogue” by posting comments or contacting him at his office email address.

Here is my comment:

What is a statement of work? What kind of document is it in a contract for complex services? Is it like a hardware specification? Should it specify the work that the contractor must do, or should it describe the work in general terms and explain how the parties will work together to specify the work on an ad hoc basis over the term of the contract? What makes a statement of work "good"? What is the role of a contract in a complex and dynamic business relationship?

Kelman, who is known for his insistent calls for innovation, doesn’t seem to realize that in order to innovate one has to understand the problem. Kelman and the CEO don't understand statements of work and their role in service quality management.

As OFPP administrator in the 1990s, Kelman did a lot of damage by pushing the half-baked "performance-based contracting" policy, which called for writing "performance work statements" (see the current definition in FAR 2.101) that specify measurable "outcomes" or “results” instead of how-to. The policy was the product of professional ignorance and a failure of professional thought and imagination. Pushing it the way he did wasted precious energy, time, and money without achieving much of anything. I have written a few thousand words in The Nash & Cibinic Report explaining why that policy was dumb.

The problem with service contract management is that the policy people in government and academia who are supposed to be critical thinkers haven’t thought about it long enough and deeply enough. I don't think they read. You cannot specify services like you specify supplies. People like T. P. Hill and Avedis Donabedian wrote enlightening works that provide food for thought about the unique problem of specifying services. Ian R. Mcneil and others have written about the limitations of contract law in complex business relationships. I have cited them in the past.

Ralph Nash and I wrote a comprehensive piece about how to contract for complex services, which was published in the Defense Acquisition Review Journal (Defense ARJ), a publication of the Defense Acquisition University, in September 2007. The piece is entitled, “A Proposal for a New Approach to Performance-Based Services Acquisition.” You can access it here:

http://www.dau.mil/pubscats/pubscats/arj45/ARJ45_complete.pdf.

In that piece we discuss the reasons for the failure of performance-based contracting in pages 355 – 358. We make specific and detailed recommendations for change in pages 358 - 361.

Apparently, Kelman never read our piece, or read it and forgot about it, or read it and didn’t understand it, or read it and didn’t like it. In any case, it goes into much more detail than he and his CEO friend about the challenges and problems of specifying and managing complex services, and it proposes a much more imaginative scheme of innovation. It calls for a complete rethinking of the rules for the acquisition of complex services.

Why call for suggestions for improving contract management if you won't look at the ones that have been made and critically examine them? If you don't agree with what you read, state your reasons. That's the way to have a dialogue.

Until policy makers and former policy makers get a clue and convince Congress that the current service contracting statutory, regulatory, and policy-memo regime makes no sense at all, service contract management will continue to disappoint. There is a small window of opportunity now with the study panel that Congress has foisted upon DOD. See the FY 2016 NDAA, Sec. 809. I have no hopes or expectations for such panels anymore, but maybe something good could come out of it if somebody who knows something -- and who has done some serious thinking and who still has some patience left for putting up with acquisition reform hoo-rah and nonsense -- would take the matter in hand.

Vern Edwards

Alice Wonderly has read the article given to her by Mr. Ewing. She shared it with other trainees in her program and they’ve discussed it, but they have questions. So Alice telephones Mr. Ewing to set up a meeting.

Alice: Hi Mr. Ewing. I read the article you gave me and I wonder if you’d have some time to talk with me about it. I wrote down some questions. And, well, I shared the article with some other trainees in my program office, and they’d like to know if they can come, too. They have questions, too. And I shared my notes of our last conversation with them, the one about evaluation factors.

Ewing: Okay. Good. That’s fine. Patrick told me you’d be calling. How about tomorrow at 11 a.m.? We can work through lunch, so bring brownbag lunches. Patrick will be here, too, with some other trainees in our program.

A: That sounds great. I’ll see you then.

E: Okay. And bring your copies of the article and your reading notes.

A: Will do.

Wednesday, 11 a.m., Mr. Ewing’s conference room.

A: Hi Mr. Ewing.

E: Alice. Come in.

A small troop of seven trainees enters the room and take seats at the conference table.

E: Introduce your colleagues.

A: Mr. Ewing, this is Denise Clare, a second-year intern. This is Jack Dixon, a first-year intern, like me. And this is Jane Mera, also a first-year intern.

Patrick: And Alice, I’ve brought Carol Spicer and Sotero Dominquez, both first-year interns.

E: Hi all. And you’ve all read the article?

All: Yes.

E: And did you make reading notes?

All: Yes.

E: And do you all have questions?

All: Yes.

A: We consolidated our questions and made sure they were clear as to subject, query, and presuppositions.

E: Where did you learn about those elements of questions?

A: From the reading materials you gave to Patrick.

E: Good. Very good. How was the article? Did you find it difficult?

Denise: A little. Lots of academic language and a technical style. But we got some things sorted out through a little internet research and discussion. For instance, we found some illustrations and explanations of “value trees” that helped a lot. And we found some stuff about “swing weighting.”

E: Very good. Before you ask your questions, let me give you some background that might make my answers easier to understand. Sound okay? You might want to take some notes.

All nod and take out notebooks and pens.

E: Economists have long tried to understand how people make important choices. After World War II, economists, psychologists, and systems analysts and engineers began intensive study and theorizing about how people do and should make important decisions. They were especially interested in how people make important and complex policy and business decisions when there is uncertainty about the consequences of any particular decision. They wanted to figure out the best way to make such decisions.

By the 1950s, researchers at Harvard, University of Michigan, Stanford, Rand Corporation, Johns Hopkins and other institutions were very active in the study of decision making. They read, theorized, conducted experiments, and proposed procedures, and they wrote technical papers and books about their findings. Much of their research was funded by the Department of Defense, which was very interested in systematic, rational decision making.

By the mid-1960s this field of study had became known as “decision analysis,” and its prescriptions were being applied in all kinds of government and business endeavors, including acquisition. Another name for the field is Multiple Attribute Utility Theory or MAUT.

The key problem in decision analysis was to determine the best way to go about making a decision when the decision maker has multiple and conflicting objectives and must consider multiple evaluation factors and make tradeoffs. How do you do it consistently and rationally rather than by instinct, which can be hard to explain and defend?

As you know, the article you read was by Dr. Ward Edwards, a psychologist and a pioneer and leading figure in the science of decision analysis. He died in 2005.

He had taught at Johns Hopkins University, the University of Michigan, and the University of Southern California. He did research in decision making for the Advanced Research Projects Agency, the Air Force, the Navy, and Rand, and wrote a very large number of scholarly papers, around 100, and a couple of important books. He was the co-author of the 1986 magnum opus on decision analysis, Decision Analysis and Behavioral Research. The research in that book was sponsored in part by the Navy’s Office of Naval Research.

Shows them a thick, well-worn volume.

Dr. Edwards wrote a good background paper and summary of the early research in 1954, “The Theory of Decision Making." That paper was funded by the Office of Naval Research and Johns Hopkins University. He wrote an update in 1961, entitled, “Behavioral Decision Theory,” which was funded by the Air Force. In 2001 he wrote “Decision Technology,” about the impact on computers and the web on decision making. All of those papers are available on the internet.

In the 1950s and 60s we were in the middle of the Cold War with the Soviet Union. We faced many technical and economic challenges. What kinds of systems did we need to counter the threat? What kinds of technologies should we develop and use? What design concepts should we choose? What economic choices should we make?

In 1961, Charles Hitch, the Assistant Secretary of Defense (Controller) and Roland McKean, a Rand research economist, discussed decision making challenges in a famous book, The Economics of Defense in the Nuclear Age. They discussed the problems in detail in Part II. Chapter 9, “The Criteria Problem,” is especially interesting. Actually, if you read that book you’ll see that some of the authors’ points still apply today.

Shows them another thick, well-worn volume.

Among DoD’s challenges was figuring out how to evaluate proposals for the complex new weapon and space systems we needed and how to select a concept and a contractor. DoD wanted to know how to choose the right evaluation factors, how to rank the factors in importance, how to evaluate proposals and document evaluation findings, and how to make and justify selection decisions. And when you track the development of the source selection process you can detect the influence of decision theorists and systems engineers.

You can see the influence of decision analysis in source selection in the description of the Air Force source selection for the Tactical Fighter Experimental or TFX, conducted in 1961 and 1962. The TFX became the FB-111 fighter-bomber. After evaluating proposals, the Air Force chose Boeing, but Secretary of Defense McNamara rejected the Air Force’s decision and gave the contract to General Dynamics, instead.

That was extremely controversial and distressed certain members of the U.S. Senate, which held lengthy hearings in 1963 about the Secretary’s action. In testimony before the Senate, Colonel Charles Gayle, who chaired the evaluation panel, described the proposal evaluation process in detail.

Shows them a volume of the Senate hearing testimony.

Over the course of several days Colonel Gayle provided what is probably the most interesting insider description of a major source selection that’s ever been given. What he described was an instance of the application of decision analysis methods, though not the specific method Dr. Edwards described in the paper you read.

He described the evaluation panel (about 200 people). He described aspects of the operational requirement and the work statement. He described the evaluation criteria, and in that description you would recognize a “value tree.” He described some of the evaluation findings – proposed costs, most realistic costs, and nonprice strengths, deficiencies, and weaknesses. He explained raw scores, importance weights, and weighted scores, and he explained the panel’s recommendation.

The procedure used by the Air Force in 1961-62 was very similar to procedure it used in 2008 to select the air tanker contractor. One difference was that in the TFX source selection the Air Force used numerical scoring, while in the air tanker source selection it used the current DOD color rating system.

Here’s an old official document, “Guide for Proposal Evaluation and Source Selection,” dated July 1966, 52 pages long, and published by the Systems Development Division of the U.S. Army Aviation Materiel Laboratories. It includes a sample evaluation plan. It’s right out of the TFX source selection playbook, complete with the same 0 to 10 point numerical scoring system. It’s an early decision analysis approach, but it never explicitly mentions decision analysis, and neither did Colonel Gayle in his Senate testimony.

Shows them the guide.

My pitch is this: In order to truly understand the source selection proposal evaluation process, explain the process to others, and lead a team in planning and executing major source selection, you need to understand something about decision analysis concepts and processes.

In 1991, two professors at the Air Force Academy wrote a paper entitled, “The Application of Decision Analysis Methods to Source Selection in the United States Air Force.” They cited Edwards’s 1986 book Decision Analysis and Behavioral Research and his 1977 paper describing the SMART method, which was cited in the paper that you read. The authors claimed that source selection could be improved by greater application of decision analysis, specifically, the Analytical Hierarchy Process, which is a decision analysis method. By the way, they were critical of the color rating method.

In 2006, an Air Force officer submitted a master’s thesis to the Graduate School of Engineering and Management at the Air force Institute of Technology entitled, “A Decision Analysis Tool For The Source Selection Process.”

There are at least one hundred papers catalogued by the Defense Technical Information Center, DTIC, that discuss the application of decision analysis in source selection, dating from the 1970s to the recent 2000s.

Decision analysis methods are useful not only for source selection, but for all kinds of nontrivial acquisition decision making, and COs are decision makers or, at least, they’re supposed to be. Here are some papers that provide examples:

A 1974 study report submitted to the Defense Systems Management College was entitled, “Decision Analysis for the Program Manager.”

A 1981 master’s thesis submitted to the Naval Postgraduate School was entitled, “Multi-Attribute Utility Theory To Assist Top-Level Acquisition Decision-Making.”

A master’s thesis submitted to the Graduate School of Engineering and Management at the Air Force Institute of Technology in 2005 was entitled, “Decision Analysis Using Value-Focused Thinking To Select Renewable Alternative Fuels.”

A 2010 paper by a professor at the Naval Postgraduate School about the use of decision analysis in acquisition was entitled, “Economic Evaluation of Alternatives.”

And there’s a 2008 paper entitled, “Integrated Decision Technology for Acquisition and Contracting” that was published by the Naval Postgraduate School.

Decision analysis can be used in business case development. Here is a handbook, Better Business Cases: Guide to Developing the Detailed Business Case, 28 February 2014, written by Treasury office in the United Kingdom.

You can even use decision analysis in negotiation and in claim decision making. Here's an article from a 2004 issue of Marquette Law Review, entitled, "Decision Analysis in Negotiation." Here's a chapter from The Handbook of Dispute Resolution (2005), entitled, "Finding Settlement with Numbers, Mays, and Trees." And here's a 1996 article from the Harvard Negotiation Law Review entitled, "Decision Analysis As A Mediator's Tool."

The paper that I gave you to read, which was published in 1994, is a relatively recent contribution to decision analysis. Contributions are still coming in.

There are many academic journals today that are devoted to decision making, such as Journal of Multi-Criteria Decision Analysis, International Journal of Management and Decision Making, Journal of Behavioral Decision Making, Judgment and Decision Making, Decision, and Decision Analysis. The current issue of Decision Analysis, has an article entitled, “Search Before Tradeoffs Are Known.” I haven’t read it yet, but the abstract says [reaching and thumbing through a stack of papers, choosing one, and reading aloud]:

uncertainty about trade-offs is likely to occur, especially in settings that involve parallel search (e.g., vendor selection, new product development, innovation tournaments). We show that incorporating uncertainty about trade-offs into a model changes its search strategy recommendations. Failing to account for such uncertainty, which is likely in practice, leads to suboptimal search and potentially large losses.

That sounds interesting, since it mentions vendor selection.

Now, look -- all the stuff in those journals is academic, technical, and hard for non-specialists to understand. The journals are pricey. I don’t subscribe to them, and I don’t think you need to read them. But you can find nontechnical articles about decision making in publications like the Harvard Business Review and the MIT Sloan Management Review.

The May 2015 of HBR issue has four articles about decision making, and the HBR website has a recent digital article entitled, “How You Make Decisions is as Important as What You Decide.”

The MIT Sloan Management Review website has posted many articles about decision making. A Spring 2015 article is entitled, “When Consensus Hurts the Company.” Those are the kinds of things you might want to read.

An especially good article for contracting folk is “Even Swaps: A Rational Method for Making Trade-offs,” which was in the March-April 1998 issue of HBR. It was written by three prominent decision analysts.

So, why did I give you Ward Edwards’s technical article? Because you have a career choice to make. Contracting is a combination of professional, administrative, and clerical work. The most interesting part of it is the professional work. The administrative and clerical work is necessary and unavoidable, but boring. If that’s all there was to contracting, I would have changed careers long ago.

One of the jobs of a contracting pro is to explain professional issues and methods to laypersons like engineers and other requirements personnel. Source selection is a contracting task, which is why FAR makes the contracting officer the default source selection authority. That means that one of the jobs of the contracting officer is to be able to explain the proposal evaluation process to those who must do it. In order to be able to do that, the contracting officer must have what I call “deep conceptual understanding.” And that kind of understanding comes only after a struggle. You have to read, think, read some more, and think some more.

Official guidance, such as the DoD source selection procedures, explain procedures, but not the reasons for them and the concepts that underlie them. It’s likely that the people who write such manuals don’t know about the reasons and concepts. You have to read other things, things like Dr. Edwards’s paper, in order to see and understand the deep stuff. And, as you now know, reading that kind of thing is real work.

Now, look -- you can do good work in contracting without knowing the deep stuff. You can study the FAR and GAO decisions and learn the rules, you can cut and paste, and you can get promoted. But you’ll never be a leader and innovator. You’ll never be the person that they won’t start the meeting without, unless all they want to hear about is rules. And you won’t be able to teach the next generation, except by talking to them about rules and giving them something to cut and paste.

Anyone can learn to read FAR, read GAO decisions, and cut and paste a source selection plan. But you can’t learn underlying concepts that way or how to apply those concepts in different types of acquisitions. What you learn by cutting and pasting won’t help you brief and explain proposal evaluation and tradeoff analysis to a trainee or an inexperienced source selection team. Cutting and pasting won’t teach you how to be an expert professional advisor to a program manager and how to be an acquisition leader and innovator. Cutters and pasters can only be advisors and leaders in the art of cutting and pasting. They can only be expert followers.

By reading the article I gave you and coming here today, you proved to me that you’re willing to do the hard professional work in pursuit of deep understanding.

So far, at least.

Okay. End of the introductory briefing and sermon. Take out your copy of the article and your reading notes.

Having read the article, you know that Dr. Edwards’ SMARTS and SMARTER methods of decision analysis entail:

Step 1. Identifying who will participate in the decision process and determining what their objectives are with respect to the decision to be made.

Steps 2 and 3. Identifying the choice alternatives you’re going to evaluate and the evaluation factors.

Step 4. Creating an object/factor matrix and entering factor values into the cells.

Step 5. Eliminating any “dominated” alternatives.

Step 6. Converting raw measurements on various scales to a common “uitility” scale.

Steps 7 and 8. Ranking the evaluation factors and assigning specific weights, then calculating the total “utility” weighted scores.

Step 9. Making the decision.

There are several variations on this method, such as the Analytical Hierarchy Process and others. But they are generally based on the same kind of “additive weighting” approach.

Now, what are your questions?

To be continued…

Vern Edwards

Alice Wonderly, a contracting trainee, is walking back to her cubicle after talking with her OJT supervisor, Mr. Sagesse, a contracting officer with an unlimited warrant. She has been tasked with developing a source selection plan and has been given an old one from which to cut and paste. But she wants to understand what she’s doing. She especially wants to understand the concept of “evaluation factor,” instead of just having "samples" and learning the rules in FAR about their use. She wants to understand what kind of things they are and what they all have in common. She thinks that may be the key to understanding the evaluation process. She asked Mr. Sagesse about evaluation factors, but did not get a helpful answer. All he said was that they are “criteria” and “standards.” To Alice, that was nothing more than referring to evaluation factors by a different name, without explaining what they are.

Discouraged, Alice is walking down a corridor when she runs into her friend and fellow trainee, Patrick Moore, who works in the Optimum Momentum Program. They stop to chat.

Patrick: Hi Alice, what’s going on with you?

Alice: I’ve been told to prepare a source selection plan. I’m working with the typical cut-and-paste “template” they give you, but I’d sure like to understand what I’m doing for once.

P: Wouldn’t we all. How’s it going?

A: Not well. I just went to Sagesse to see if I could get some answers, but I got nothing.

P: [Chuckling.] Yeah, well... I did a training rotation with Sagesse. Good luck getting anything from him.

A: Who’s your OJT boss?

P: Mr. Ewing. He’s great. I was pretty lucky to draw him at the last trainee assignment lottery.

A: Good OJT?

P: The best. If you have questions and do your homework before going to him, you’ll get a clear and concise explanation and plenty of references for stuff to read. But heaven help you if you didn’t do your homework first.

A: Tough?

P: Demanding. He expects you to think. Half the time, when I go to him with a question, he asks me questions before he answers my question. He’s checking to see if I did my homework before asking for help. He reads my documentation closely and asks me questions to test my thinking and conclusions. He insists on good writing. He says people think in words and sentences and when a person writes poorly it's either because he thinks poorly or is lazy. I graduated with honors and thought I was a good writer until I went to work for him. He makes me rewrite things a lot. He will pick out words that I’ve used in a memo and ask for a definition. If I don’t spit it out right away he says that a person who can’t define a word he’s used literally doesn’t know what he's talking about. And he’s a punctuation fanatic. It made me angry at first. He saw the anger in my face once and he said, “I’m here to teach you. You’re here to learn. Work at learning, or go to the training office and tell them you want to work for someone else.”

A: Yikes!

P: Yeah, he intimidates some of the trainees. You know, some people are always talking about being intimidated by this or that. Fragile flowers. But I can see that my thinking and writing have improved a lot since I came to work for him, and I feel like I’m really learning the business. A lot of his former trainees are GS-14s and 15s now. There are even a couple of generals that were former trainees of his. They stop in to visit from time to time.

A: So Ewing is actually training you.

P: You bet. He says that training is one of a manager’s most important personal responsibilities. He personally conducts weekly one-hour training sessions every Wednesday during lunch. He calls them “brown baggers.” Attendance is voluntary, but I know he keeps track of who comes and who doesn’t. He’s looking for commitment. Every week he covers a topic chosen by someone in the office, like data rights, cost analysis, cost estimating, performance-based payments, or cost allowability. He explains concepts, principles, rules, and practices. He doesn’t just tell you. He shows you. But you’ve got to put in the time to study on your own, too. He won’t hand-hold you.

A: You’re lucky. I think.

P: I'm lucky. Look, let’s go see him, and you can ask him your question.

A: But I haven’t done much research. I’ve read the FAR and our supplement and the source selection manual. I’ve looked in dictionaries and a couple of contracting books, but I haven’t found anything helpful. I don’t want to get trashed for not being ready.

P: A fraidy-cat? You? Look, he can kill you, but he won’t eat you. Come on. I think he’ll be okay with it, since you don’t work for him.

They go to Ewing’s office. One wall of the office is covered with small picture frames, 5 by 7 inches, in each of which there is a piece of rag paper on which a quote has been typed on a manual typewriter. Some of the sayings are:

“Reflective thinking is always more or less troublesome because it involves overcoming the inertia that inclines one to accept suggestions at their face value; it involves willingness to endure a condition of mental unrest and disturbance. Reflective thinking, in short, means judgment suspended during further inquiry; and suspense is likely to be somewhat painful. As we shall see later, the most important factor in the training of good mental habits consists in acquiring the attitude of suspended conclusion, and in mastering the various methods of searching for new materials to corroborate or to refute the first suggestions that occur. To maintain the state of doubt and to carry on systematic and protracted inquiry—these are the essentials of thinking.”
--
John Dewey

“Never be afraid to sit awhile and think.”
-- Lorraine Hansberry, playwright

“Knowledge of the product or service, and its use, is essential to sound pricing.”

-- Armed Services Procurement Regulation 3.802-1, “Product or Service”

“Managing is getting paid for home runs someone else hits.”
-- Casey Stengel

“I get angry about things, then go on and work.” -- Toni Morrison, Nobel laureate

The best advice I ever got was that knowledge is power and to keep reading."

-- David Bailey, fashion photographer

“Improvise. Adapt. Overcome."
-- Unofficial motto of the U.S. Marine Corps

“The question isn’t who’s going to let me; it’s who’s going to stop me.” -- Ayn Rand, novelist and philosopher

“Consider yourself an enemy, and be on the lookout for ambushes.”
-- Epictetus, philosopher, 2d Cent. C.E.

“Don't feel entitled to anything you didn't sweat and struggle for.”
-- Marian Wright Edelman, social activist

“In this outfit, officers jump first and eat last.” -- Maj. Gen. James M. Gavin, Commander, 82d Airborne Division, WWII.

“He that wrestles with us strengthens our nerves and sharpens our skill. Our antagonist is our helper.” -- Edmund Burke, politician, statesman, and philosopher

“We are all born ignorant, but one must work hard to remain stupid.”
-- Benjamin Franklin

“If you obey all the rules, you miss all the fun.” -- Katherine Hepburn

There is a bookcase. Alice sees the Cibinic and Nash series and about 100 other books, shelved alphabetically by title. Some of the titles are:

The Acquisition of Defense Systems

The Cambridge Dictionary Of Space Technology

The Cambridge Grammar Of The English Language

Challenges in Managing Large Projects

Cost Estimating

The Craft of Argument

Decision Analysis for Management Judgment

Defective Pricing Handbook

Dictionary of Modern Legal Usage

Dictionary of Statutory Interpretation

Elements of Contract Interpretation

Elements of Spacecraft Design

Garner’s Modern American Usage

Government Contract Changes

Government Contract Cost & Pricing Handbook

Guide To Federal Agency Rulemaking

Handbook Of Technical Writing Practices

How Spacecraft Fly

How To Read A Government Contract

Informal Logic

Introduction To Decision Analysis

It’s Only Rocket Science: An Introduction in Plain English

Licensing Software And Technology To The Government

The Mind And Heart Of The Negotiator

The Negotiation Game

Nonsense

The Polaris System Development

Probability Methods For Cost Uncertainty Analysis

Rights In Technical Data and Computer Software

The Science and Technology Dictionary

Tacit & Explicit Knowledge

Thinking Mathematically

The U.S. Air Force And The Culture of Innovation

The Visual Display Of Quantitative Information

There is a notebook on top of the bookcase bearing a label that says:

“If you want to borrow a book, write (1) your name, (2) your office symbol, (3) the date that you’re checking a book out, and (4) the date that you will return it. You can’t borrow any book for more than two weeks.”

“These books are mine, not the Government’s. You can borrow a book, but the penalty for not returning one of my books is death. Don’t write or highlight in one of my books. If I have to call you to get a book back, you won’t be able to borrow any more books.”

Ewing is sitting with his back to the door at a small table that is separate from his desk and computer. There is nothing on the table but a pad of blank paper and a pencil. He appears to be thinking.

P: Mr. Ewing?

Ewing: [Turning and looking up.] Ummm? Oh, Hi, Patrick.

P: I’d like to introduce a friend, another trainee, Alice Wonderly.

A: Hello, Mr. Ewing.

E: Nice to meet you, Ms Wonderly. What are you doing here in the Optimum Momentum Program Office? Visiting Pat?

A: Well, not actually. I’ve been looking for an answer to a question, but I’m having a little trouble, so Patrick suggested I come see you.

E: [Hesitates.] Well, who do you work for? Have you spoken with him or her?

A: My boss is Mr. Sagesse.

E: Oh, I see. Well, Jack Sagesse has a lot of experience.

A: Yes, I know. Sorry to bother you.

E: You’re not bothering me. Out of curiosity, what is your question?

A: I’m working on the Foochi Minooli Program and I have to prepare a source selection plan. I want to understand the concepts, not just cut and paste.

E: Well, that’s good, but please state your question.

A: [Hesitating… thinking.] What kind of thing is an evaluation factor? I know that they’re also called criteria and standards, but I want to know what kind of thing they are.

E: Ah. You don’t want a lexical definition. You want a stipulative definition.

A: I’m not sure what those are.

Ewing reaches to the bookcase, pulls out a slim volume, and hands it to Alice. The title is Definition by Richard Robinson.

E: Read in this. Before you leave, put your name and office address in the notebook and read the lending rules. Return the book by the end of next week.

According to the author, a lexical definition tells you the words to which a word or phrase refers. A stipulative definition explains the thing to which a word or phrase refers.

A: Oh. Well, that’s exactly what I want, an explanation of “evaluation factor.”

E: What research have you done?

A: I’ve read FAR Part 15. And I read in the Cibinic and Nash books, Formation and Competitive Negotiation. But they tell you the rules and the case law about evaluation factors. That’s not what I’m looking for.

E: It’s rare to meet someone who asks about concepts. Are you sure you want to know?

A: Uhhhh, yes. Why do you ask?

E: I ask because knowing the answer might make your thoughts clearer, but it won’t make your job easier. It would be much easier to let your question lie and just cut and paste. That’s why people do it. You know what they say: “Ignorance is bliss,” and “Why reinvent the wheel.”

A: How can knowing more make my job harder?

E: Because once you know the answer, you and your team will have to choose between doing a professional job and thinking very hard or doing a cut and paste job and not thinking much at all. I consider that a moral decision. Your technical clients might enjoy thinking hard about technical matters, but they might not like having to think hard about mere contracting matters.

A: I still want to know.

E: Ever taken a class in decision analysis?

A: No.

E: Okay. Do you have total recall, or do you want to take notes?

A: Oh, yes, I’ll take notes. [Hurriedly takes a spiral notebook and a pen out of her brief case.] Ready.

E: An evaluation factor is an attribute of an offeror or of its offer--a feature, property, or characteristic of an offeror or of its offer that provides value to the government by its presence or its absence.

A: [Writing furiously.]

E: Anything else?

A: [Hesitating.] Well, could you elaborate just a little on “attributes”?

E: Sure. All things and ideas have features, properties, or characteristics that are either inherent in them or that are ascribed to them on the basis of subjective judgments. Some of those features, properties, and characteristics are desirable because they are useful or, as we say, “valuable” and so the more of them the better. Some are undesirable, because they’re damaging and detract from value, so the less of them the better. The word “attributes” refers to those features, properties, and characteristics. When we in the government decide to evaluate offerors and their offers on the basis of such attributes, we call them “evaluation factors,” which is a term of art in government contracting.

A: [Writing furiously.]

E: [Continuing.] We choose contractors by comparing offerors and their offers on the basis of the value provided by “evaluation factors.” “Value” is a general attribute that we ascribe to offerors and their offers on the basis of evaluation factors. Consideration of individual attributes yields various measures of value, which can be weighted for importance to our objectives and “synthesized” or “integrated,” as we say, to yield the summary attribute that we call “total value.” The competitor that ends up having the highest total value will be what we call the “best value.”

Formally, what we call “source selection” is a version of what is called “multiple attribute decision making,” which is a collection of several formal methods for making rational choices from among alternatives.

A: [still writing] Could you provide some specific examples of attributes?

E: Of course. Let’s say we’re buying hammers and we decide to evaluate offers for hammers. Hammers have certain attributes: functional design features, such as the claw on a claw hammer, which is for extracting nails, and the ball on a ball peen hammer, which is for working metal; material composition—some have wooden handles, others have graphite core or fiberglass handles; weight; size; durability; et cetera. They also have properties that buyers ascribe to them subjectively, such as “balance,” “heft,” and “feel.” And they come with “assigned” properties, such as price, availability, and warranty.

In order to evaluate offers, we must determine which attributes are important to us. We must then somehow determine how much of each attribute is found in each offered hammer. Then we must compare and rank the offered hammers to determine which is best.

A: So that’s how we evaluate proposals.

E: Actually, we don’t evaluate proposals.

A: Huh? I don’t understand.

E: We don’t evaluate proposals. We evaluate offerors and their offers. Think of a proposal as a package that contains (1) information about the company that submitted it and (2) statements of the promises that the company is offering. You don’t evaluate the proposal, per se. You evaluate the offeror and the offer described in the proposal based on offeror attributes and offer attributes.

A: But everybody says we evaluate proposals.

E: Yes, well, "everybody" says all kinds of things. That’s not what matters. What matters is what's true and what's not. Saying that we evaluate proposals is just a careless way of saying that we evaluate offerors and their offers based on the information in their proposals. When we say that a company submitted an excellent proposal, we’re really saying that the offeror and the offer described in the proposal were excellent. At least, that's what we should be saying.

A: That’s an entirely new way of thinking. No one has said that to me before.

E: Think it over.

A: I will. Can I ask more questions?

E: You've got enough to think about for a while. When learning concepts, it’s best to proceed methodically. You do want concepts, right? You’re not looking for a manual of source selection, are you?

A: No, I’ve read the manual. I want to understand the underlying concepts.

E: Good, but are you willing to struggle a little?

A: Yes, sir.

Ewing opens his desk drawer, flips through some files, pulls out a paper, and hands it to Alice. The 20-page paper is entitled, "SMARTS and SMARTER: Improved Simple Methods for Multiattribute Utility Measurement," by Ward Edwards (1994).

E: Read this. Think. Then write down any questions you have and come back in a week.

Patrick: May I have a copy, too?

E: [Hands a copy to Patrick and smiles.] If you hadn’t asked, I would have wanted to know why not.

A: Mr. Ewing, thank you so much. I really appreciate your time and answers.

E: The best way to thank me and to show your appreciation is to read the paper, think hard about it, and come back with some good questions. Okay, you two, I have to get back to work now.

Ewing turns back to his table, pencil, and blank pad of paper. Alice and Patrick leave.

P: [As they walk.] Alice, if you come back, those questions had better be good ones and well-written. He has high standards for questions. Topic and query had better be clear and show that you did some thinking and made reasonable presuppositions.

A: Huh?

P: He conducted a “brown bagger” on questions and questioning strategy and tactics, and he gave us assigned readings. Come to my office, and I’ll give you copies of the readings.

To be continued…

Vern Edwards

Alice Wonderly, a contracting trainee, has been given the job of “putting together” a source selection plan and has some questions for her supervisor, Mr. Sagesse, a contracting officer with an unlimited warrant.

TRAINEE: Hi, Mr. Sagesse. May I come in?

SUPERVISOR: Hi Alice. Of course, of course. Always happy to talk to you. Sit down.

A: Thanks. I’ve been told to develop a source selection plan for the Foochi-Minooli Project, but I’ve never done one before. I’ve read FAR Subpart 15.3, and someone gave me an old plan to cut and paste from, but I’d like to understand what I’m doing.

S: That’s commendable. I like a thinker.

A: Well, could you answer a question? What is an evaluation factor?

S: I’m pretty busy right now [stands and begins gathering papers from his desk and stuffing them into his briefcase]. Look, just go to the office of the evaluation team and tell them you need some evaluation factors. When you get them, plug them into the template.

A: Template? You mean the cut-and-paste version?

S: Exactly.

A: Well, I went to the evaluation team’s office, and they said they’ve never done a source selection, and they asked me to explain the process to them.

S: Just print out FAR Part 15 and give them copies.

A: But, they'll only ask me questions, and I don’t understand FAR Part 15 well enough to explain it to someone else. FAR 15.304 and 15.305 talk about evaluation factors and give some examples, like past performance, experience, and cost or price, but they don’t provide any information about the underlying concept.

S: Concept? What don’t you understand?

A: Well, for instance, what exactly is an evaluation factor?

S: It’s a criterion you consider when you score--oops, I meant rate--and compare proposals.

A: What do you mean by “criterion”? The dictionary says a criterion is a standard.

S: Exactly. A standard.

A: What kind of standard?

S: Something you measure something else against.

A: That's what the dictionary said. But what is it that you measure?

S: That depends on what the criterion is. You measure against the criterion.

A: So we’re back to criterion, but you still haven’t told me what an evaluation factor is in source selection. According to what you’ve said, an evaluation factor is a criterion, and a criterion is a standard, and a standard is a criterion, and a criterion is an evaluation factor.

S: Exactly! Now you’ve got it!

A: But, I’m just right back where I started. I still don’t know what an evaluation factor is. Please, tell me, what is an evaluation factor?

S: It's something like past performance.

A: Well, I know that FAR 15.304 and 15.305 talk about past performance, but that doesn’t help me to understand the concept of an evaluation factor. What kind of thing is an evaluation factor?

S: I just told you--it’s a criterion for comparison.

A: But calling an evaluation factor a criterion or a standard doesn’t tell me what an evaluation factor is. I want to know what it is. What do all source selection evaluation factors have in common that makes them source selection evaluation factors?

S: I don’t understand what you don't understand. Look, it's simple. An evaluation factor is something you consider when you evaluate and compare proposals. But you don't evaluate them by comparing them, except to the evaluation factors.

A: What? Wait...

S. FAR 15.305 explains it all.

A: Not really. Forgive me, Mr. Sagesse, but we’re still going in circles. Do you have another example of an evaluation factor?

S: Sure. Technical acceptability.

A: What is that?

S: Being technically acceptable.

A: What makes a proposal technically acceptable?

S: Being technically good enough.

A: What makes a proposal “good enough”?

S: That depends on what the criteria are for technical acceptability.

A: [sighs]

S: It’s something that satisfies the requirement by meeting the standard for acceptability.

A: So, being technically acceptable is being good enough and being good enough is satisfying the requirement, which is meeting the standard for technical acceptability?

S: Now you're catching on.

A: So, technical acceptability is proposing to do what the requirement requires, based on the standard for that, which is a criterion, which is an evaluation factor? Is that it?

S: Exactly! Well, that, and explaining how they’re going to do it.

A: So, it’s not enough for an offeror to say that they propose to satisfy the requirement? They have to explain how they’re going to do it?

S: Yes. We’re talking best value, not sealed bidding.

A: So, if they promise to satisfy the requirement, and if they tell you how they’re going to do it, then they’ll be technically acceptable?

S: Yes. Well, assuming that their approach is sound.

A: So, technical acceptability is promising to satisfy the requirement, and describing how they’re going to do it, and having a sound approach?

S: Yes. That’s it.

A: “Approach.” I know you’re busy, so I’ll look that word up in FAR. But what makes an approach “sound”?

S: Being good enough to get the job done.

A: But what makes an approach good enough to get the job done?

S: That depends on the criteria.

A: [sighs]

S: Well, among other things, a realistic estimate of the cost. That sort of thing.

A: So a sound approach is one that comes with a realistic cost estimate?

S: Well, that, and things like the right kinds and amounts of labor and materials.

A: What makes the kinds and amounts of materials “right”?

S: Well, being right for the job.

A: What job?

S: The job of satisfying the requirement.

A: What does that job entail?

S: That depends on how they’re going to do the work.

A: So, if they promise to satisfy the requirement, and tell you how they’re going to do it, and propose the “right” kinds and amounts of labor and materials, and give you a “realistic” cost estimate, then they’ll be technically acceptable?

S: Yes. Well, assuming that their description of how they’re going to do it will actually get it done.

A: How will we know that?

S: Well, that’ll be up to the evaluators to decide.

A: How will they decide?

S: They’ll compare the proposed approach to their evaluation standards.

A: To their standards?

S: Yes, to their criteria for soundness.

A: To their criteria?

S: Yes--to the evaluation factors. Their evaluation must be based on the factors in the RFP. They can’t consider anything else. Unless something else is reasonably encompassed by the those factors.

A: What? Wait… Oh, never mind. Mr. Sagesse, we’ve come around in a circle again, and I still don’t know what all source selection evaluation factors have in common that makes them source selection evaluation factors.

S: What they have in common is that they will be used to evaluate and score--I mean rate--proposals.

A: Yes, but Mr. Sages, what kind of thing do you use as evaluation factors? What do all evaluation factors have in common?

S: I think you’re being a little argumentative.

A: I don’t mean to be. I just want to understand.

S: Well, I have explained it to you.

A: Okay. I guess I’ll read FAR some more. May I ask one more question?

S: What is it, Alice? I have to get to my car pool.

A: What, exactly, is rating, and how does it differ from scoring?

S: That’s two questions, and I have to go now. You’d better get started on that source selection plan. Just use the template. Can't go wrong that way. [Leaves.]

To be continued...

Vern Edwards

Who won?

I received entries from the following Wifcon members:

jonmjohnson

wvanpup

Just Me

Whynot

MLCM

August

hereiskim

jukulend

Here_2_Help also submitted one, but it was received after the deadline.

The entries were posted for all to see. I also posted my own definitions.

With help from a couple of friends I reviewed the entries and chose... all of them.

I could not pick a winner among them. So I declared all of them to be winners, including Here_2_Help. I know, I know, but it was impossible to declare one set of entries better than the others, and I want to do something to thank people who went through the trouble. As hereiskim said, it was harder than you might think.

I will contact everyone through Wifcon to obtain mailing information and will send each a copy of the newest edition of The Government Contracts Reference Book.

Vern Edwards

An assortment of books that I've looked at during the past year and that you might find to be of interest. Listed within each category by date.

CRITICAL THINKING

1. The Art of Thinking Clearly, Dobelli (2013)

  • An informal, nontechnical, anecdotal presentation of good thinking practices. Short chapters with titles like: "Why You Should Visit Cemeteries: Survivorship Bias," "Why We Prefer a Wrong Map to No Map at All: Availability Bias," "Why You Systematically Overestimate Your Knowledge and Abilities: Overconfidence Effect," "Less is More: the Paradox of Choice," "The Difference Between Risk and Uncertainty: Ambiguity Aversion," and my favorite, "Never Pay Your Lawyer by the Hour: Incentive Super-Response Tendency." Fun read.

2. Asking the Right Questions, 9th ed., Browne and Keeley (2010)

  • Something you'd better learn how to do if you're going to be a manager or a contracting officer. An essential skill for critical thinkers.

3. A Rulebook for Arguments, 4th ed., Weston (2009)

  • Short and to the point. A useful handbook.

4. How We Reason, Johnson-Laird (2008)

  • A lengthy, detailed treatment.

5. Informal Logic: A Pragmatic Approach, 2d ed., Walton (2008)

  • This is simply an indispensable text for anyone who has to write a D&F, a justification for other than full and open competition, a source selection decision document, a request for equitable adjustment or a claim, or a contracting officer's final decision.

6. Logic and Contemporary Rhetoric: The Use of Reason in Everyday Life, 10th ed., Kahane and Cavender (2006)

7. The Craft of Argument, 3d ed., Williams and Columb (2006)

8. The Writing of Economics, McCloskey (1987)

  • We could all write better than we do. A nice little handbook. Check it out.

PROGRAM HISTORIES

9. GPS Declassified: From Smartbombs to Smartphones, Easton and Frazier (2013)

  • The story of one of the greatest and most successful systems of all time. They had a sign over the entrance to the Air Force program office: "Our Mission is to Drop Two Bombs in the Same Hole. Period." If they'd only known.

10. A Fiery Peace in a Cold War: Bernard Schriever and the Ultimate Weapon, Sheehan (2009)

  • The story of the beginning of program management as we know it and of one of the most important programs of the 20th Century -- the Atlas intercontinental ballistic missile.

11. Project Vanguard: The NASA History, Green and Lomask (2009)

12. Sidewinder: Creative Missile Development at China Lake, Westrum (1999)

  • On time, within budget, and performance as promised. Perhaps THE most successful system development in U.S. history.

ANALYSIS AND DECISION MAKING

13. Decision Analysis for Management Judgment, 4th ed., Goodwin and Write (2009)

  • Decision analysis is one of the formal rational analytical methods that were developed after World War II. First named in 1966, it is distantly related to game theory, and related to tradeoff analysis and systems analysis. Decision analysis is prescriptive, not descriptive. it tells you how you ought to make decisions, not how people actually make them. This book is an excellent, nontechnical introduction to the topic. Should be studied by everyone who has to make important choices.

14. The Failure of Risk Management, Hubbard (2009)

15. Understanding Uncertainty, Lindley (2007)

  • A fine, nontechnical explanation of the concept.

16. Risk, Ambiguity and Decision, Ellsberg (2001)

  • A largely nontechnical exposition of the topics.

17. Probability Methods for Cost Uncertainty Analysis, Garvey (2000)

  • Very technical. You'll need some advanced math to follow it closely, but well-worth a look.

CONTRACTING

18. How to Read a Government Contract, Allen (2013-2014)

  • A handy book. Sadly, it's one of those super-expensive legal texts.

19. Calamari and Perillo on Contracts, 6th ed., Perillo (2010)

  • The most recent edition of the venerable textbook.

20. Contracts in a Nutshell, 9th ed., Rohwer and Skrocki (2010)

  • The most recent edition of the handy Nutshell series.

21. Elements of Contract Interpretation, Burton (2009)

  • An affordable treatment of an important topic.

GENERAL

22. Dictionary of Untranslatables: A Philosophical Lexicon, Cassin, ed. (2014)

  • I love dictionaries, and this 1,297 page book is a very interesting one. Entries run from a paragraph to several pages in length and include terms like: Abstraction, Economy, Geisteswissenschaften, Kitsch, Nonsense, Principle, Proposition, Reality, Structure, Subject (very long entry), Word, Word Order, and Work. Great browsing.

23. Plato at the Googleplex: Why Philosophy Won't Go Away, Goldstein (2014)

  • Great, and great fun. Socrates lives!

24. Reflections on Judging, Posner (2013)

  • By the famous appellate court judge and public intellectual. He wrote an article for The New Republic entitled, "The Incoherence of Antonin Scalia," and Justice Scalia responded to it by calling him a liar. And you thought Wifcon Forum was tough.

25. Naked Statistics: Stripping the Dread from the Data, Wheelan (2013)

  • Very successful popular treatment of statistics.

26. The Demon of Writing: Powers and Failures of Paperwork, Kafka (2012)

  • About the phenomenon of paperwork. Very interesting, and short.

27. The Thinker's Thesaurus: Sophisticated Alternatives to Common Words, Expanded 2d ed., Meltzer (2010)

  • Handy reference for writers.

28. Bureaucracy and Administration, Farazmand, ed. (2009)

  • For future SESs. Contains academic articles such as "Bureaucratic Links between Administration and Politics," "Bureaucracy: A Profound Puzzle for Presidentialism," "Public Service Ethics and Professionalism: A Primer for Public Officials," "The Wright Brothers Contract: Lessons in Ambiguity and Bureaucracy" (which cites my Wifcon article), and "The American President as a Bureaucratic Leader." Also includes articles about bureaucracy in other countries. Interesting stuff.

29. How Judges Think, Posner (2008)

  • Another interesting `book by the prolific Judge Posner.

Vern Edwards

We are evaluating the entries and will announce a decision later this week. Thanks to all who made submissions. In the meantime, here are my definitions of the 20 terms.

1. audit (as in proposal audit)

Audit (n.) means an examination of a contractor’s records in order to verify information provided by the contractor in a proposal, invoice, voucher, request for equitable adjustment, or claim or to determine costs incurred.

2. competition (as in competition improves quality and reduces prices)

Competition (n.) means [1] a formal contest in which two or more firms contend on a head-to-head basis for the award of a Government contract; [2] a market state in which multiple firms independently sell goods or services that are close substitutes for one another in specific applications.

3. complex (as in she’s working on a large, complex acquisition)

Complex (adj.) means comprised of many interdependent parts that combine to perform as a whole, such that the performance of any one affects the performance of the whole.

4. condition (as in terms and conditions)

Condition (n.) means a contract term that requires that an event occur, or not occur, before a specific contractual obligation is imposed or a specific contractual right is conferred.

5. contract term (as in they won’t accept that contract term)

Contract term (n.) means any part of a contract that imposes an obligation or confers a right.

6. cost (as in cost estimate)

Cost (n.) means a measure, expressed in monetary terms, of resources that a contractor uses or consumes or of expenses that it incurs in the performance of a contract.

7. dispute (as in a dispute must be handled under FAR 33.2)

Dispute (n.) means a disagreement between the Government and a contractor that they have been unable to resolve.

8. equitable adjustment (as in they want an equitable adjustment)

Equitable adjustment (n.) means a modification of a contract term — usually, but not necessarily, the price, the estimated cost and fee, or the delivery schedule — that is made in order to compensate one of the parties for the effect of an act or omission by the other party.

9. evaluation factor (as in source selection evaluation factor)

Evaluation factor (n.) means an attribute (feature, quality, or characteristic) of an offeror or of its offer that provides value to the Government, either through its presence or its absence.

10. fairly (as in COs must treat contractors fairly)

Fairly (adv.) means in a manner that is considered to be in accordance with widely accepted customs and standards applicable to the business at hand and to be appropriate under the circumstances.

11. incentive (as in contractual incentive)

Incentive (n.) means a contract term that is designed to motivate a contractor to do something or to refrain from doing something.

12. need (as in an acquisition should fulfill the Government’s needs)

Need (n.) means the absence of something that is necessary for the fulfillment of an agency mission or specific task.

13. profit (as in we offered them a fair profit)

Profit (n.) means the difference between a contract price and the cost of contract performance.

14. purchase request package (as in the purchase request package was inadequate)

Purchase request package (n.) means the information and documentation required from a requisitioner or requiring activity in order for a contracting officer to award a contract in compliance with applicable laws and regulations.

15. rating (as in evaluators will assign a proposal rating)

Rating (n.) means a symbolic expression — usually, but not necessarily, adjectival or numerical — that concisely summarizes more detailed information about how well or how poorly an offeror or its offer has performed in terms of an evaluation factor or set of evaluation factors.

16. relative importance (as in evaluation factor relative importance)

Relative importance (n.) means the degree of an agency’s preference for one evaluation factor over others, assuming that the agency cannot get as much as it wants of each and that more of one means less of one or more of the others.

17. requirement (as in the program office specified its requirements)

Requirement (n.) means what an agency specifies that it wants from a contractor in its performance of a contract.

18. risk (as in contract performance risk)

Risk (n.) means the exposure to a harmful possibility, formally expressed in terms of (1) a description of a specific contingent event, (2) a statement of the probability that the event will occur, and (3) a statement of the measure of harm that would be suffered if the event does occur.

19. tradeoff (as in source selection tradeoff analysis)

Tradeoff (n.) means a decision to forego getting some of one or more evaluation factors in order get more of another when it is not possible to get as much as is wanted of each.

20. uncertainty (as in uncertainty about performance outcomes)

Uncertainty (n.) means doubt about whether an event will occur, often expressed in terms of the probability that the event will occur (e.g., “a 50-50 chance”).

Vern Edwards

I am launching a contest. I will give a copy of The Government Contracts Reference Book, 4th ed., by Nash, O’Brien-DeBakey, and Schooner, published by Wolters Kluwer Law & Business and The George Washington University Law School, to the Wifcon member who writes the best set of definitions of the 20 terms (words and phrases) listed below. The Reference Book retails for $80.

The following words and phrases are commonly used by contracting practitioners and frequently used in regulations, guidebooks, handbooks, and contracts. A parenthetical entry beside the word or phrase gives usage context.

1. audit (as in proposal audit)

2. competition (as in competition improves quality and reduces prices)

3. complex (as in she’s working on a large, complex acquisition)

4. condition (as in terms and conditions)

5. contract term (as in they won’t accept that contract term)

6. cost (as in cost estimate)

7. dispute (as in a dispute must be handled under FAR 33.2)

8. equitable adjustment (as in they want an equitable adjustment)

9. evaluation factor (as in source selection evaluation factor)

10. fairly (as in COs must treat contractors fairly)

11. incentive (as in contractual incentive)

12. need (as in an acquisition should fulfill the Government’s needs)

13. profit (as in we offered them a fair profit)

14. purchase request package (as in the purchase request package was inadequate)

15. rating (as in evaluators will assign a proposal rating)

16. relative importance (as in evaluation factor relative importance)

17. requirement (as in the program office specified its requirements)

18. risk (as in contract performance risk)

19. tradeoff (as in source selection tradeoff analysis)

20. uncertainty (as in uncertainty about performance outcomes)

None of those words and phrases is defined in FAR.

I will not accept dictionary or otherwise published definitions. The definitions must explain in your own words what you mean when you use those terms.

The qualities I am looking for in the definitions are:

(1) contextual appropriateness,

(2) clarity,

(3) definiteness (neither vague nor ambiguous),

(4) simplicity, and

(5) brevity.

Write enough to be clear, but don’t write dissertations. Write something that would make clear to a non-contracting person what you, as a contracting practitioner, mean when you use the selected words and phrases. Don’t substitute one vague word or phrase for another. Don’t define by giving examples. State attributes common to all instances of use.

For some background about definitions go to:

http://en.wikipedia.org/wiki/Definition http://en.wikipedia.org/wiki/Stipulative_definition

http://www.philosophypages.com/lg/e05.htm

http://www2.warwick.ac.uk/fac/soc/philosophy/people/faculty/longworth/definitions.pdf

Here are my rules for the contest:

1. Participation is open to all Wifcon members.

2. You must define all 20 of the listed words and phrases.

3. You must post your definitions here, as a comment on this blog entry, for all to see. Do not submit your comments directly to me via email.

4. The deadline for submission is June 18 at midnight. The date and time of your submission are the date and time on the posted comment. Minor post-deadline edits are permitted, but not wholesale rewrites. I'll be the sole judge of whether a post-deadline edit is actually a rewrite.

5. Begin each definition as follows: [Word or phrase] means…

6. Each definition must be in your own words. You may collaborate with others in your office, but you cannot quote or reword a definition found in a published source, including government publications and board, court or GAO decisions. I’ll use the internet to check for quotes and close paraphrases.

7. In evaluating the submissions I will seek input from Don Mansfield and Emptor Cautus, two other Wifcon bloggers. However, I reserve the right to pick the winner based on my own opinion and to pick no winner if I think that none of the submissions is good enough.

8. By participating you agree that participation gives you no legal right to anything.

What would you say if someone were to ask you what you mean when you use any of those words or phrases? Could you answer immediately, or would you have to think about it for a while and maybe do some research?

Take a shot. What have you got to lose? It might be worth the effort just to develop your own thinking. Most of you post anonymously, so don't worry. Have fun with it and maybe you'll win an expensive book.

Vern Edwards

What follows is a draft that I have written for general descriptive and explanatory purposes on the topics: "What is a contract?" and "What is contract management?" It is intended to be brief and introductory in nature. The intended audience is contract managers, prospective contract managers, and personnel managers in both the public and private sectors and in Government and private sector contracting.

I invite you to submit comments on the substance of it. What do you like, agree with, if anything. What do you dislike, disagree with? (This is a first draft, so don't address typos, format, etc.) You can comment publicly, here at the blog, or you comment privately via the Wifcon member channel.

Thanks in advance for your time.

What is a Contract?

What is Contract Management?

What Is A Contract?

The concept of contract is extraordinarily complex. One can define the word broadly and in general terms, or narrowly, in legal terms, depending on your purpose.

Common Dictionary Definitions

According to current edition of The Oxford English Dictionary (OED Online March 2014), the ultimate source of the English noun is the Latin verb contrahere, which means to draw together, collect, unite. The word came into English via Old French, and its first recorded use in English was by Geoffrey Chaucer, who used it in The Canterbury Tales in the year 1386 (and spelled it “contractes”).

According to the OED, contract (noun) means:

A mutual agreement between two or more parties that something shall be done or forborne by one or both; a compact, covenant, bargain; esp. such as has legal effects….

Similar definitions appear in the American Heritage Dictionary of the English Language, 5th and in Webster’s Third New International Dictionary (Unabridged).

Legal Definitions

Restatement of the Law of Contracts 2d, § 1, defines contract as follows:

A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.

Black’s Law Dictionary 9th (2009) devotes 11 pages to the definition of contract, defining the basic word and many variations, such as adhesion contract, bilateral contract, blanket contract, consensual contract, cost-plus contract, fixed-price contract, gratuitous contract, informal contract, parol contract, requirements contract, service contract, subcontract, unilateral contract, and void contract.

The basic definition in Black’s is:

An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law…. 2. The writing that sets forth such an agreement….

(Note the distinction made between the actual agreement between the parties and the document that memorializes it.)

Definitions in Statute and Regulation

The word contract is used (but not defined) in the U.S. Constitution in Article I, Section 10, and in Article VI, and both used and defined in many ways for different purposes in hundreds of places throughout the United States Code (U.S.C.) and the Code of Federal Regulations (C.F.R.). See, for example, the regulations of the Office of Management and Budget at 5 C.F.R. § 1315.2:

Contract means any enforceable agreement, including rental and lease agreements, purchase orders, delivery orders (including obligations under Federal Supply Schedule contracts), requirements-type (open-ended) service contracts, and blanket purchases agreements between an agency and a vendor for the acquisition of goods or services and agreements entered into under the Agricultural Act of 1949 (7 U.S.C. 1421 et seq.). Contracts must meet the requirements of § 1315.9(a).

A much more common definition, which appears in several places in the C.F.R., is given in Department of Agriculture regulations, at 7 C.F.R. § 3016.3:

Contract means (except as used in the definitions for grant and subgrant in this section and except where qualified by Federal) a procurement contract under a grant or subgrant, and means a procurement subcontract under a contract.

See Department of Energy regulation, 10 C.F.R. 784.12:

Contract means any contract, grant, agreement, understanding, or other arrangement, which includes research, development, or demonstration work, and includes any assignment or substitution of parties.

The Federal Acquisition Regulation (FAR), 48 C.F.R. Chapter 1, § 2.101, defines contract as follows:

“Contract” means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications. Contracts do not include grants and cooperative agreements covered by 31 U.S.C. 6301, et seq. For discussion of various types of contracts, see Part 16.

(That definition refers to what is sometimes called a “procurement contract” for the purchase of property or services. See 31 U.S.C. § 6303.)

Perhaps the most sensible answer ever given to the question, “What is a contract?” was written by John D. Calamari and Joseph M. Petrillo and appears in their legal textbook (hornbook), Calamari and Petrillo on Contracts 6th (2009) on page 1:

No entirely satisfactory definition of the term “contract” has ever been devised. The difficulty of definition arises from the diversity of the expressions of assent which may properly be denominated “contracts” and from the various perspectives from which their formation and consequences may be viewed.

The Core Concept

The core concept is that of agreement between two or more parties about promises they have made. Such an agreement might be referred to as a bargain, deal, meeting of the minds or, more formally, mutual assent. A contract can be for an undertaking as simple as an immediate purchase-sale transaction between individuals, in which nothing is written and little if anything is said, or as complex as a years-long relationship between a team of corporations and a government agency that attracts national or even international attention and in which thousands of managers and workers are employed, millions of pages of documents are prepared, and hundreds of meetings are conducted.

Some persons categorize contracts as either discrete or transactional on one hand and relational on the other. See, for example, Macneil, "The Many Futures of Contracts," Southern California Law Review, (1973 - 1974), 47 S. Cal. L. Rev. 691, 693-4:

The purity and simplicity of the traditional tenet arises from its presupposition that a contract is a discrete transaction. A transaction is an event sensibly viewable separately from events preceding and following it, indeed from other events accompanying it temporally one engaging only small segments of the total personal beings of the participants. Only this separability permits such a clean and clear definition of contract as that of the Restatement, and with it the singular future of contract based only on promise-with-law.

But is the world of contract a world of discrete transactions so defined? Or is it a world of relation, an ongoing dynamic state, no segment of which--past, present or future--can sensibly be viewed independently from other segments? Is it a world entirely of segmental personal engagements, or is it one tending to engage many aspects of the total personal beings of the participants?

[Footnotes omitted.]

Contracts are created through an often complex and lengthy process that is sometimes referred to as contract formation or as offer and acceptance. The process might take place more or less as follows: One party, an offeror, makes an offer, which is a promise, to another party, an offeree, seeking to get something in exchange, usually a return promise. The promise might be to do something or to refrain from doing something. If the offeree agrees to the offeror’s terms for the exchange of promises, then he or she is said to have accepted the offer, thereby making a promise in return. The offeree’s return promise is deemed consideration for the offer — something that the offeror bargained for and that “seals the deal” between the parties. Assuming that both parties are legally competent to engage in such an exchange, and assuming that the promises exchanged are lawful, the parties’ agreement is mutual assent to the terms of the exchange and forms a contract. The parties are now bound to one another, and the courts will enforce the contract. (For a more complete discussion of the process, see Joseph M. Perillo, Calamari and Perillo on Contracts 6th (2009) Ch. 2.)

The specialized role of professional contract manager developed when contracts became complex, the rules governing them became voluminous and difficult to understand, and the work of making and maintaining them became specialized. Contract managers view contracts as business relationships that require great care and attention to detail in planning, creation, maintenance, and in closing out when completed. That process is called contract management.

What is Contract Management?

Contract management is the professional art of negotiating mutually beneficial business agreements and of forging and maintaining mutually rewarding business relationships. Contracts involving anything more than simple and immediate purchase and sale transactions are relationships. While contract management entails compliance with laws, regulations, policies, court decisions, etc., it is not primarily a legal process. Contract management is, first and foremost, a relationship management process. Contract managers enable and assist people and organizations to unite and cooperate to their mutual benefit.

Business is regulated in most countries, so contract managers must know and ensure compliance with many statutes, regulations, policies, and judicial and administrative decisions (collectively, “the rules”) that govern the contracting process, and they must be able to advise others in their organizations concerning the proper interpretation and application of the rules. This is especially true of Government contracting. The rules are complex and often written in arcane language using officially defined words and specialized terms of art. (The FAR alone contains more than 800 officially defined words and terms.) In order to be able to interpret and apply the rules properly and advise others how to do so, contract managers must be prodigious readers, so they can stay abreast of the latest developments in the law, in the industries and markets in which they do business, and in their profession.

The contract management process plays out in four phases: (1) research and planning, (2) contract formation, (3) contract execution, and (4) contract closeout.

The Research and Planning Phase

During the research and planning phase, the buyer determines its acquisition objectives — what it lacks and what its specific requirements are, decides how to proceed through the contract formation and contract execution phases, and establishes a budget and a schedule for the accomplishment of its objectives.

As generalists, contract managers should have, or be able to obtain through market research, information about the products or services to be acquired under contract. Generally, this will be the knowledge of an educated layperson, rather than a technical expert. They should be sufficiently familiar with the industries that produce or provide those products or services and the markets in which they are sold to be able to review specifications or statements of work for clarity, suitability, and general adequacy, to negotiate product or service specific contract terms, and to negotiate prices, estimated costs and fees, or hourly labor rates. They should have a general understanding of the methods of production or performance and of quality control and quality assurance used by the industry.

Contract managers who support projects or programs should understand the fundamentals of project management and some of the tools used by project managers, such as Work Breakdown Structures, Earned Value Management Systems, the Program Evaluation and Review Technique, and the Critical Path Method. (See A Guide to the Project Management Body of Knowledge (PMBOK Guide) 2000 Edition), ANSI/PMI 99-001-2000.) They should understand project funding and contract financing arrangements. And they should understand the fundamentals of intellectual property law, policy, and practice regarding patents, rights in technical data, and copyrights.

Contract managers must be effective relationship designers and builders. In order to unite people and organizations, contract managers must investigate and understand their respective points of view, objectives, needs, requirements, concerns, perceptions of risk, and differences. They must analyze the business strategies of their own organizations and of prospective business partners, determine how they mesh and conflict, if at all, and then must estimate, predict, and plan accordingly. They must choose and employ ethical and appropriate tactics to achieve the parties’ respective objectives in mutually acceptable ways. They must know how to use the arts of explanation and persuasion to acknowledge and resolve differences, and know how to draft agreements that impose reasonable obligations and fairly allocate business risks.

The Contract Formation Phase

The crucial phase in contract management is contract formation, the process of offer and acceptance. The objective is mutual assent — a meeting of the minds. The judgments, decisions, plans, proposals, and agreements made during contract formation will set the stage for all that follows. A well-managed and conducted contract formation process greatly increases the likelihood of successful contract execution and reduces the risk of disappointment or failure. For that reason, seasoned contract managers should play the lead role in contract formation. If someone else is chosen to play that role — perhaps a program or project manager — the contract manager should be that person’s key advisor.

In Government contracting, the contract formation process is managed under extensive and complex rules — statutes, regulations, policies, and protest case law — and contract managers engaged in Government contract formation must be thoroughly familiar with them. The Government’s contracting officer is the process manager, responsible for ensuring that it is conducted in strict accordance with the rules and that all offerors are treated fairly. See FAR 1.602-1( b ):

No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.

Moreover, contract managers must have a thorough understanding not only of the contracting rules, but also of the fundamentals of sound business decision-making that underlie the proposal evaluation and source selection process used by most federal agencies. And since they must analyze business proposals and negotiate contract terms, including prices, they should understand the industry that produces the goods or services being acquired, the practices used to set their prices, and the market in which they are sold and purchased.

In Government contracting, more regulation is devoted to contract pricing than to any other single topic, and contract managers involved in proposal analysis and contract negotiations should have an expert understanding of the pricing rules, which include rules about the submission and certification of cost or pricing data, cost allowability, cost accounting standards, cost and price analysis, and subcontract pricing. In order to engage in proposal analysis and contract pricing, contract managers must be knowledgeable of the fundamentals of cost estimating and of product and service pricing, and of pricing laws, regulations, and policies. They must be competent in the use of basic arithmetic and at least basic business mathematics. Such competence is essential to an understanding of the fundamentals of cost estimating, cost uncertainty analysis, cost risk, and contract pricing.

The Contract Execution Phase

During contract execution, contract managers must ensure that the parties fulfill their obligations to each other and respect each other's rights. This requires that they be thoroughly familiar with the contract terms and understand the basics of contract interpretation.

Reality does not always match expectations, and contract managers must know how to adapt when plans do not work out and when the worst case turns out to be the real case. Contract managers must be problem solvers par excellence. They must know how to ease tensions and avoid conflicts or resolve them when they occur. When problems arise, as they almost inevitably will from time to time, contract managers must come to the conference table with coherent and rational analyses, persuasive, evidence-based answers and explanations, and a menu of appropriate solution alternatives. In complex undertakings, unexpected events and change are inevitable, and contract managers must manage the change process so as to facilitate smooth transitions from old to new plans and contract terms, control costs and maintain schedules, if possible, and prevent misunderstandings and disputes.

While there will often be some tension between buyers and sellers, especially under fixed-price contracts, the parties should try to meet on common ground, and to create common ground when necessary, in order to make their relationship as productive as possible and to prevent it from becoming a zero-sum game. The contract execution phase should not be a period in which the parties race to see who comes out best. The goal should be to reach the finish line at the same time through honesty, mutual respect, cooperation, good faith, and fair dealing.

If disputes do arise, contract managers must prevent them from becoming disruptive to the point of putting the entire relationship at risk. In government contracting, the disputes process is governed by statute (41 U.S.C. §§ 7107 et seq.) and regulation (FAR Subpart 33.3). In settling disputes, the contracting officer must play the crucial role of impartial judge and make a decision based on his or her own independent judgement, an especially demanding task, but one that the courts and boards of contract appeals have found the contracting officer to be contractually bound to perform. See Atkins North American, Inc. v. United States, 106 Fed. Cl. 491 (2012).

The Contract Closeout Phase

Once a contract has been fully performed (“executed”), the parties may have some final administrative actions to take in order to complete their records and “close out” the business file. In Government contracting, FAR § 4.804 specifies a number of closeout tasks to be performed. Statute or regulation may require that the parties retain and store certain of their records for specified periods of time. See, for example, FAR Subpart 4.7. This work might be done by a contract manager or by administrative or clerical staff. Whoever does it, it must be done promptly and attentively.

The Requisite Skills of the Contract Manager

In order to do their work, contract managers must be skilled in oral and written communication.

Contract managers must be confident and persuasive presenters, able to describe and explain complex ideas to others, either with preparation or extemporaneously, to both informed colleagues and to those with little understanding of the issues, to both supporters and to skeptics or even opponents. They must be wise and skilled fact-finders and negotiators.

Contract managers often must write letters, emails, plans, and various memoranda that describe, explain, and justify their judgments, recommendations, decisions, and actions in order to establish compliance with statutes, regulations, policies, and contracts. So they must be competent writers of descriptive and advocatory business prose, because governments at all levels demand that businesses create and maintain often extensive records of their transactions and business relationships. Assessments of the quality of their work and of their professional and personal integrity will rest in no small measure on the contemporaneous documentation they create. Their documentation must be truthful, accurate, complete, and demonstrative.

Summation

In conclusion, the contract management process entails forging and maintaining mutually beneficial relationships. It requires thorough research and planning, sound contract formation, cooperative contract execution, and prompt and attentive contract closeout. In order for contract managers to do that work effectively, they must know laws, regulations, and policies, industries and markets, business principles, procedures, and techniques, and be effective communicators.

Vern Edwards

We have a new blogger at Wifcon, who calls himself Emptor Cautus. Since I've known him for 40 years, he asked me to write an intro for him, and this is it.

E.C. will remain anonymous, which is a good sign. He retired from Government service after a 30+ year career in which he held several high level posts, and he is still working in the field, so I figure he might say something that might get someone excited, and he doesn't want it held against him. That's good news.

E.C. spent most of his career with the Department of Defense as a contracting officer, contracting director, headquarters staffer, chief procurement officer, and even as an assistant commander in major systems acquisition offices. He worked some very big and important programs and there are not many people alive who know as much about contracting as he does. He is a detail man, which means that he will look closely at your official work and hold you to a very high standard in that regard. He is a thinker, and in a conversation, if you say something unsupported, inconsistent, or just plain wrong, you are likely to hear the dread, "Well, now, wait a minute." Which is the prelude to a Socratic examination of your logic. I can tell based on personal experience that alcohol seems to have little if any effect on his reasoning powers. If you say something about a professional topic, be ready.

E.C. is a prolific and thoughtful writer, and if you do much reading in our field, you have probably read some of his articles in various professional publications. He is a Certified Professional Contract Manager and a Fellow of the National Contract Management Association.

We are close friends, and I hold him in the highest personal and professional esteem. I think you will enjoy reading what he posts.

Vern Edwards

The DAU Director for the Center for Contracting, Mr. Leonardo Manning, posted a short, one-paragraph blog entry on February 10 entitled, “Is your Acquisition a Supply or a Service?”

https://dap.dau.mil/career/cont/blogs/default.aspx

It's interesting, but it doesn't analyze the problem in enough detail. It's more complicated than presented.

FAR 2.101 defines supplies as follows:

Supplies means all property except land or interest in land. It includes (but is not limited to) public works, buildings and facilities; ships, floating equipment, and vessels of every character, type, and description, together with parts and accessories; aircraft and aircraft parts, accessories, and equipment; machine tools; and the alteration and installation of the foregoing.

There is no definition of services or service contract in FAR Part 2, which means that there is no definition of those terms that applies throughout the FAR. See FAR 2.101(a). However, there are several definitions pertaining to services and service contract scattered about in various places.

FAR 2.101 defines personal services contract as follows:

Personal services contract means a contract that, by its express terms or as administered, makes the contractor personnel appear to be, in effect, Government employees (see 37.104).

FAR 37.101 defines nonpersonal services contract as follows:

Nonpersonal services contract means a contract under which the personnel rendering the services are not subject, either by the contract's terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the Government and its employees.

FAR 37.101 defines service contract as follows:

Service contract means a contract that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply. A service contract may be either a nonpersonal or a personal contract. It can also cover services performed by either professional or nonprofessional personnel whether on an individual or organizational basis. Some of the areas in which service contracts are found include the following:

(1) Maintenance, overhaul, repair, servicing, rehabilitation, salvage, modernization, or modification of supplies, systems, or equipment.

(2) Routine recurring maintenance of real property.

(3) Housekeeping and base services.

(4) Advisory and assistance services.

(5) Operation of Government-owned equipment, real property, and systems.

(6) Communications services.

(7) Architect-Engineering (see Subpart 36.6).

(9) Transportation and related services (see Part 47).

(10) Research and development (see Part 35).

That definition applies only in FAR Part 37. It does not apply in any of the other 52 parts. It does not apply to Part 22. See FAR 2.101(a).

FAR 22.001 defines service contract as follows:

Service contract means any Government contract, or subcontract thereunder, the principal purpose of which is to furnish services in the United States through the use of service employees, except as exempted by the Service Contract Act (41 U.S.C. chapter 67; see 22.1003–3 and 22.1003–4). See 22.1003–5 and 29 CFR 4.130 for a partial list of services covered by the Act.

There are also definitions of advisory and assistance services, architect-engineer services, child care services, and utility service.

The purpose of the FAR definitions is to provide a basis for applying appropriate policies, solicitation provisions, and contract clauses when conducting acquisitions. They are not meant to define supplies and services in and of themselves.

There is no definition of service per se; the FAR does not tell us what a service is. The closest we get is that part of the definition of service contract that refers to performance of an identifiable task rather than to furnish an end item of supply. That’s an odd criterion, and it makes the definition of service contract somewhat problematical. If you buy a product of a company’s own design that the company makes, stocks, and sells, you are clearly buying an item of supply. But what if a CO hires a contractor to make and deliver an item of the government’s design? Is the CO buying an item of supply or the time and effort of performing an identifiable task? Seems to me that making something is an identifiable task and that hiring someone to make something for you is hiring them to perform such a task. However, I think that most of us would agree that such a contract would be a supply contract. Right?

If you award a contract to someone to manufacture something to your specifications, have you bought an item of supply or have you hired the contractor to expend time and effort to perform an identifiable task? Surely, the custom manufacture of something to your design is different than contracting with a firm to sell you a standard item that it makes to its own design and stocks or makes on order for sale. Moreover, doesn’t the maintenance, overhaul, repair, servicing, rehabilitation, etc., of items of supply entails the alteration of those supplies, which, according to the definition of supplies, is supplies?

Which brings us to the Service Contract Act. FAR 22.1003-1 says that FAR Subpart 22.10, “Service Contract Act of 1965, As Amended,” applies to all government contracts awarded for the principle purpose of acquiring services to be provided by service employees. It then says:

The nomenclature, type, or particular form of contract used by contracting agencies is not determinative of SCA coverage.

FAR Subpart 22.10 makes no mention of the definition of service contract in 37.101, but 22.1003-5 contains a list of examples of contracts covered by the SCA that includes many that are similar to the list of examples in that definition.

The Department of Labor regulations at 29 C.F.R. Part 4, Labor Standards for Federal Service Contracts, does not define service or service contract, but provides as follows at § 4.111(a), which says, in part:

This remedial Act is intended to be applied to a wide variety of contracts, and the Act does not define or limit the types of services which may be contracted for under a contract the principal purpose of which is to furnish services. Further, the nomenclature, type, or particular form of contract used by procurement agencies is not determinative of coverage. Whether the principal purpose of a particular contract is the furnishing of services through the use of service employees is largely a question to be determined on the basis of all the facts in each particular case. Even where tangible items of substantial value are important elements of the subject matter of the contract, the facts may show that they are of secondary import to the furnishing of services in the particular case. This principle is illustrated by the examples set forth in §4.131.

As for the examples in § 4.131:

(a)… A procurement that requires tangible items to be supplied to the Government or the contractor as a part of the service furnished is covered by the Act so long as the facts show that the contract is chiefly for services, and that the furnishing of tangible items is of secondary importance

* * *

( c ) [An] example of the application of the above principle is a contract for the recurrent supply to a Government agency of freshly laundered items on a rental basis. It is plain from the legislative history that such a contract is typical of those intended to be covered by the Act. S. Rept. 798, 89th Cong., 1st Sess., p. 2; H. Rept. 948, 89th Cong., 1st Sess., p. 2. Although tangible items owned by the contractor are provided on a rental basis for the use of the Government, the service furnished by the contractor in making them available for such use when and where they are needed, through the use of service employees who launder and deliver them, is the principal purpose of the contract.

Okay, but then the regulation says:

In general, contracts under which the contractor agrees to provide the Government with vehicles or equipment on a rental basis with drivers or operators for the purpose of furnishing services are covered by the Act. Such contracts are not considered contracts for furnishing equipment within the meaning of the Walsh-Healey Public Contracts Act. On the other hand, contracts under which the contractor provides equipment with operators for the purpose of construction of a public building or public work, such as road resurfacing or dike repair, even where the work is performed under the supervision of Government employees, would be within the exemption in section 7(1) of the Act as contracts for construction subject to the Davis–Bacon Act. (See § 4.116.)

I presume that equipment rental for other purposes is covered by the Walsh-Healey Public Contracts Act, which applies to contracts for the "manufacture or furnishing" of materials, supplies, articles, and equipment. See FAR 22.602.

If you Google <car rental service> you’ll get the websites for Hertz, National Car, etc. They rent cars without drivers, and Hertz’s corporate profile says that they have provided “Quality Car Rental Service” for over 90 years. So in the commercial marketplace, car rental is a service, as is equipment rental generally. It’s not immediately clear to me why renting laundry is different from renting vehicles without drivers and other equipment.

Assuming that you want to award a fixed-price contract for the recurrent supply of fresh laundry, would you specify the laundering process, the properties of the fresh laundry to be delivered, or both? Would you insert the clause at FAR 52.243-1, Changes--Fixed Price (AUG 1987) (ALT I) (APR 1984), which is the one for services, or would you insert the basic clause which is for supplies? Or would you insert (ALT II) (APR 1984), which is for services and supplies? Would you insert the clause at FAR 52.246-4, Inspection of Services--Fixed-Price (AUG 1996), or the one at FAR 52.246-2, Inspection of Supplies--Fixed-Price (AUG 1996)? There is no alternate inspection clause for both supplies and services. So would you include both clauses and assign them to separate line items or subline items for services and supplies? Would you separately priced the items?

Would those questions occur to you? Would the answers matter to you? Do you think that all practitioners would answer them the same way?

I do not think this is a big problem. My point is that contracting regulations are written over the course of time to implement laws and policies that are often developed on an ad hoc basis in response to particular problems as they arise. They tend to be formulaic in the sense of mandating that when X then Y. A formula specified in one part of the FAR may make perfect sense within its policy domain, but no sense at all within another. (That’s one of the reasons for the definitions rule at FAR 2.101.) Thus, it is possible that a contract might appropriately be thought to be for supplies when selecting clauses, but for services when selecting labor laws.

Veteran practitioners tend to take these things for granted, mainly because they were told how to think about them during their early training. This is supplies. That is services. They know that the regulations do not always answer questions definitively and that, sometimes, practitioner experience is all you have to go on. But newcomers to our business can get hung up on some of these logical inconsistencies.

And now: Is painting the walls of a building a service or is it construction? Does the Service Contract Act apply or the Davis Bacon Act? And while we’re at it, what about elevator repair?

Vern Edwards

In Government contracting under the FAR, a contract option is an offer contained in a contract that Government can accept in accordance with its terms, and that the contractor cannot revoke, until the acceptance period has expired. See also the definition of option in FAR 2.101.

The recent Federal government budget problems and the government shutdown have caused confusion with respect to the exercise of annual options in service contracts. I want to try to clear up some of that confusion.

A Primer On Contract Options

When a Government contract contains an option, the option is an offer that the Government can accept or reject. Acceptance of the offer is called "exercising the option."

The most common options in Government contracting are offers to (1) deliver additional quantities of supplies or (2) provide services for an extended period. It is the options in service contracts that are at issue.

In the main, options have two contractual components: (1) an option line item that describes the offer with reference to product specification, service statement of work, product or service pricing, and delivery date or performance period, and (2) an option clause that describes the rights and obligations of the parties with respect to exercise of the option. A standard rule of contract interpretation says that a contract must be interpreted as a whole. Thus, any attempt to answer questions about a contract option must consider both the terms of the contract line item and the terms of the applicable option clause.

FAR provides five standard clauses that stipulate the rights and obligations of the parties with respect to options. There are two standard clauses for supply contracts: FAR 52.217-6. Option for Increased Quantity (MAR 1989) and FAR 52.217-7, Option for Increased Quantity--Separately Priced Line Item (MAR 1989). There are two standard clauses for services contracts: FAR 52.217-8, Option to Extend Services (NOV 1999) and FAR 52.217-9, Option to Extend the Term of the Contract. In addition, there is FAR 52.237-3, Continuity of Services (JAN 1991), which requires a contractor to provide phase-in training and best efforts to “effect an orderly and efficient transition to a successor. While the latter clause is a kind of option, it is a special case, and I am omitting it from the remainder of this discussion.

FAR Subpart 17.2 describes two standard service contract options: (1) the so-called -8 option, named after its standard clause, FAR 52.217-8, which provides for short term extensions of up to six months, supposedly for use when award of a new contract is delayed, and (2) the so-called -9 option, named after its clause, FAR 52.217-9, which is the common "annual" extension option (although extensions need not be for a full year).

Exercising Options

When it comes to exercising a contract option (i.e., accepting the option offer), it is well established in Government contracting case law that an option must be exercised “in exact accord” with its terms. See System Planning Corp. v. U.S., 107 Fed. Cl. 710 (2012), quoting the U.S. Court of Appeals for the Federal Circuit in Freightliner Corp. v. Caldera, 225 F.3d 1361 (Fed. Cir. 2000):

“For an option order to be effective, the Government must exercise the option in exact accord with the terms of the contract.” Freightliner Corp. v. Caldera, 225 F.3d 1361, 1366 (Fed. Cir. 2000); see also Arko, 553 F.3d at 1379.

See also DeMarco Dirzo Development Co. v. U.S., 69 Fed. Cl. 262 (2005):

[T]he United States Court of Appeals for the Federal Circuit has held that “to properly exercise [an] option, the government's acceptance of the offer had to be in exact accord with the terms of the contract[.]” New England Tank Indus. of New Hampshire, Inc. v. United States, 861 F.2d 685, 687 (Fed.Cir.1988); see also Uniq Computer Corp. v. United States, 20 Cl.Ct. 222, 231–32 (1990) (quoting A. Corbin, CORBIN ON CONTRACTS, A COMPREHENSIVE TREATISE ON THE WORKING RULES OF CONTRACT LAW § 264) (1963) (The exercise of an option “must be unconditional and in exact accord with the terms of the option.”) (emphasis added)) (quoting Civic Plaza Nat'l Bank v. First Nat'l Bank of Dallas, 401 F.2d 193 (8th Cir.1968)) (“The acceptance of an option, to be effective, must be unqualified, absolute, unconditional, unequivocal, unambiguous, positive, without reservation, and according to the terms or conditions of the option ... An acceptance of an option must be such a compliance with the conditions as to bind the parties, and if it fails to do so it binds neither.” (emphasis added)). Therefore, as a matter of law, an attempted exercise of an option is ineffective, unless it is in “exact accord” with the terms of the option. See Lockheed Martin IR Imaging Sys., Inc. v. West, 108 F.3d 319, 323–24 (Fed. Cir. 1997) (holding the “partial exercise” of an option improper); International Telephone and Telegraph, ITT Defense Communications Div. v. United States, 197 Ct.Cl. 11, 453 F.2d 1283 (1972) (holding that a contracting officer's telegraphic notice that was sent on last date for giving notice, but not received until following morning, and contracting officer's oral notice on last date for notifying contractor was insufficient as a matter of law to “exercise an option,” where the contract provided that the contracting officer must notify the contractor of the exercise of an option, in writing, not later than a specified date); Uniq Computer, 20 Cl.Ct. at 231 (citing S. Williston, A TREATISE ON THE LAW OF CONTRACTS § 61D (3d ed.1957) (“This requirement is strictly construed.”).

As the Federal Circuit explained in Freightliner:

As option holder (optionee), the Government possesses what is generally called a power of acceptance. The option binds the optionee to do nothing but grants it the right to accept or reject the offer therein in accordance with its terms within the time and in the manner specified in the option. In order to bind the optionor, “the notice by which the power of an option holder is exercised must be unconditional and in exact accord with the terms of the option.” Nothing less will suffice, unless the optionor waives one or more of the option's terms. It is settled that the exercise or “acceptance of an option, to be effectual, must be unqualified, absolute, unconditional, unequivocal, unambiguous, positive, without reservation, and [strictly] according to the terms or conditions of the option.” Civic Plaza National Bank v. First National Bank in Dallas, 401 F.2d 193, 197(8th Cir. 1968); Holly Corp., ASBCA No. 24975, 83-1 BCA ¶ 16,327 at 81,164-65; see Corbin on Contracts § 264 (1963); Williston on Contracts §§ 61B, 61D (3d ed., 1957).

Do not confuse this common law rule, which requires the contracting officer to exercise the option in exact accord with the terms of the contract, with the rules in FAR 17.207 about exercising options, which are internal rules of the Government, not terms of a contract.

If a contracting officer fails to comply with FAR 17.207, the Government can declare the exercise of the option to be invalid on the ground that the CO exceeded his or her authority. Thus, if the CO exercises an unpriced and unevaluated option without first complying with FAR Part 6 (see FAR 17.207(f)0, the Government could repudiate the exercise without breaching the contract. But if the exercise was in accord with the exact terms of the contract, failure by the CO to otherwise comply with FAR 17.207 will not be grounds for the contractor to successfully argue that the exercise of the option was invalid. See Freightliner again, in which the contractor argued, among other things, that the CO had not complied with FAR 17.207(f) in exercising the option and for that reason the exercise of the option was improper and ineffective. The court rejected that argument, saying:

In order for a private contractor to bring suit against the Government for violation of a regulation, that regulation must exist for the benefit of the private contractor. See Cessna, 126 F.3d at 1451; Rough Diamond Co. v. United States, 173 Ct. Cl. 15, 351 F.2d 636, 640–42 (Ct.Cl.1965). If, however, the regulation exists for the benefit of the Government, then the private contractor does not have a cause of action against the Government in the event that a contracting officer fails to comply with the regulation. See Cessna, 126 F.3d at 1451–52; Rough Diamond, 351 F.2d at 642. Furthermore, each regulation must be analyzed independently to determine whether it confers a cause of action upon the private contractor. See Chris Berg, Inc. v. United States, 192 Ct. Cl. 176, 426 F.2d 314, 317 (Ct. Cl. 1970) (explaining that it is not “possible to determine that all of ASPR [predecessor to DAR] was or was not made for the benefit of bidders”).

* * *

On appeal, Freightliner contends that TACOM's failure to comply with FAR § 17.207(f) rendered TACOM's option exercise ineffective. When TACOM issued the P00051 modification, the FAR regulation provided as follows:

Before exercising an option, the contracting officer shall make a written determination for the contract file that exercise is in accordance with the terms of the option, the requirements of this section, and Part 6. To satisfy requirements of Part 6 regarding full and open competition, the option must have been evaluated as part of the initial competition and be exercisable at an amount specified in or reasonably determinable from the terms of the basic contract.

FAR § 17.207(f) (1989).

The above regulation explains that, before exercising an option, a contracting officer must satisfy the requirements in FAR § 17.207(f) and FAR Part 6; otherwise, the Government must treat the option order as a “sole source” procurement and justify it under an exception to the requirement of obtaining supplies under full and open competition. See FAR § 6.101 (1989). Freightliner asseverates that, because TACOM failed to satisfy the conditions in FAR § 17.207(f) and did not obtain approval for the sole source justification, the P00051 modification was an ineffective option order. TACOM responds that, even if it violated FAR § 17.207(f), that regulation was not enacted for the contractor's protection, and Freightliner therefore cannot avoid its contractual obligations based on an alleged violation of that regulation.

In order for a private contractor to bring suit against the Government for violation of a regulation, that regulation must exist for the benefit of the private contractor. See Cessna, 126 F.3d at 1451; Rough Diamond Co. v. United States, 173 Ct. Cl. 15, 351 F.2d 636, 640–42 (Ct. Cl. 1965). If, however, the regulation exists for the benefit of the Government, then the private contractor does not have a cause of action against the Government in the event that a contracting officer fails to comply with the regulation. See Cessna, 126 F.3d at 1451–52; Rough Diamond, 351 F.2d at 642. Furthermore, each regulation must be analyzed independently to determine whether it confers a cause of action upon the private contractor. See Chris Berg, Inc. v. United States, 192 Ct. Cl. 176, 426 F.2d 314, 317 (Ct. Cl. 1970) (explaining that it is not “possible to determine that all of ASPR [predecessor to DAR] was or was not made for the benefit of bidders”).

Read holistically, FAR § 17.207 is designed to ensure that a contracting officer exercises an option to fulfill existing needs, see FAR § 17.207( c )(2) (“The requirement covered by the option fulfills an existing Government need ....”), and that exercising the option presents the most cost effective manner of fulfilling that need, see FAR § 17.207(d) (“The contracting officer, after considering price and other factors, shall make the determination....”). The regulation does not proscribe the contracting officer from taking a particular action, rather it provides the Government with a mechanism for maintaining orderly business transactions. In particular, FAR § 17.207(f) serves as an internal operating procedure that requires a contracting officer to document the reasons for exercising the option and the procedural steps taken in doing so. FAR § 17.207(f) exists to ensure that the contracting officer acts in the best interest of the government; it therefore does not exist for the benefit of the contractor. Cf. Cessna, 126 F.3d at 1452 (holding that a regulation which prevented a contracting officer from obligating funds before they were appropriated constituted an internal operating procedure existing for the benefit of the government). Accordingly, we hold that, even if TACOM failed to comply with FAR § 17.207(f), it would not render the P00051 modification ineffective.

The part of the first sentence of FAR 17.207(f) that states: “the contracting officer shall make a written determination for the contract file that exercise is in accordance with the terms of the option,” serves merely to ensure that the CO complies with the common law rule. But even though FAR 17.202 makes FAR Subpart 17.2 inapplicable to some contracts, such as construction and research and development contracts, the common law rule still applies to them.

Bottom line: Except as provided by the express terms of the contract, e.g., a Changes clause, the Government cannot unilaterally change the terms of an option without the contractor’s assent.

FAR 17.207, "Exercise of options."

After reminding COs that they must exercise options in exact accord with their terms, FAR 17.207(f) goes on to remind COs of other conditions that must be met prior to the exercise of a contract option. You can read them for yourself, but I want to emphasize two:

(1) The exercise of the option must satisfy the requirements of FAR Part 6 with respect to full and open competition.

(2) The option must be exercisable in an amount stipulated in the contract or otherwise determinable from the contract terms.

The first reminds the CO that he or she must have complied with the Competition in Contracting Act (CICA) with respect to the option. The second is necessary for such compliance, because CICA requires that price be an evaluation factor in every CICA competition. A CO’s failure to comply with FAR 17.207 won’t excuse the contractor from performance, because FAR 17.207 was not written for the benefit of contractors. However, a bid protester can use such a failure as grounds to protest the exercise of an option. (Think of it this way: contractors complain about breaches of contracts; protesters complain about violations of regulations and solicitation terms.)

Questions at Wifcon Forum

As I said, the budget turmoil has caused some confusion about the exercise of options. Some of that confusion is reflected in a 14 November 2013 post to Wifcon Forum under the heading “FAR Clause 52.217-8 and -9”:

I was hoping to get some insight on the interpretation regarding the following statement, which was posted in one of the Army Contracting Directorate regarding FAR Clause 52.217-8 and 52.217-9:

In accordance with FAR Clause 52.217-8, Option to Extend Services, the contract may be extended, at the Government’s sole discretion, for a period of up to six (6) months, exercisable in increments of not less than one (1) month. If the contract contains an unexercised option period, the Government may elect to exercise the option pursuant to FAR Clause 52.217-9, Option to Extend the Term of the Contract, during any short-term extension. The short-term extension(s) shall be subtracted from the total duration of the immediately succeeding option period that may follow as a result of the exercise of the option pursuant to FAR Clause 52.217-9 so that the combination of the short-term extension(s) and the option will not exceed 12 months duration. [Emphasis added.] If the Government exercises one or more short term extensions in accordance with FAR Clause 52.217-8 and this instruction or an option period pursuant to FAR Clause 52.217-9, or any combination thereof, the contract as extended shall be deemed to include this extension instruction and FAR Clause 52.217-8; thus, the authority to extend services pursuant to FAR Clause 52.217-8 and this instruction may be exercised at the end of the base period and at the end of each option period.

Question: Can this be done? Excercising [sic] -9 and then cut it short and use -8?

The poster later explained:

[T]he situation is the result of the customer anticipation of not needing the services due to budget issues among other reasons. Anyways, we are at the point when we need to exercise the 2nd option period. Contracting office proposed we exercise -8 for 2-months and once customer confirms they need the service, -9 would be excercised [sic] following its respected [sic] period (PoP on option is idnetifed [sic] in Section F - 12-month periods).

As I interpret the post, the question is whether the Government can exercise the 52.217-8 option for two months and then the 12-month 52.217-9 option for 10 months.

The answer is no, unless the CO first modifies the 52.217-9 option with the contractor’s assent. Any attempt to exercise the 52.217-9 option for less than the stipulated 12 months would violate the common law of contracts and constitute a cardinal change -- a breach of contract -- which would entitle the contractor to refuse to perform or which would be handled as a constructive change entitling the contractor to an equitable adjustment, depending on which version of the Disputes clause, FAR 52.233-1, is in the contract. See FAR 33.213, “Obligation to continue performance.”

The fact that the 52.217-8 option plus a 10-month extension under the 12-month 52.217-9 option would equal 12 months is to no avail, because a 12-month 52.217-9 option stipulates performance for a period of 12 months and must be exercised in exact accord with its terms. The 52.217-8 option and the 52.217-9 option are different terms and presumably are under separate line items for the purposes of pricing and proposal evaluation. (According to the GAO, 52.217-8 options must be priced and the prices must be evaluated in order for exercise to be CICA-compliant. See Major Contracting Services, Inc., GAO Dec. B-401472, 2009 CPD ¶ 170 (Sep. 14, 2009), reconsid. denied, 2009 CPD ¶ 250 (Dec. 7, 2009).) One cannot combine the 52.217-8 option and the 52.217-9 option in order to satisfy the time requirement of the 52.217-9 option.

Perhaps some practitioners think that because paragraph ( c ) of the 52.217-9 option limits “the total duration” of the contract, that the 52.217-8 option cannot be used to extend the contract beyond that total duration. They reason that exercise of the 52.217-8 option prior to exercise of a 52.217-9 option requires that any excess time be deleted from the 52.217-9 option, justifying exercise of the 52.217-9 option for less than its stipulated period. To illustrate: Suppose that the Government has one remaining 52.217-9 option for a 12-month extension. According to paragraph ( c ) of the 52.217-9 clause, the total duration of the contract cannot go beyond the end of the final 52.217-9 option. Thus, if the Government exercises the 52.217-8 option first, for two months, then exercises the 52.217-9 option, it may do so for only 10 months. Not true. See the decision of the Court of Appeals for the Federal Circuit in Arko Executive Services, Inc. v. U.S., 553 F.3d 1375 (2009):

Arko argues first that the government's attempt to require services pursuant to FAR 52.217–8 after the fifth year of the contract exceeded the time limits of the contract. This argument is based on Arko's contention that FAR 52.217–9( c ), which states that “the total duration of this contract, including the exercise of any options under this clause, shall not exceed five years,” is an absolute bar to provision of services more than five years after the beginning of performance. This interpretation, however, ignores the phrase “including the exercise of any options under this clause.” The presence of this phrase suggests that the five-year limit includes the options discussed in the FAR 52.217–9 clause—which are the four one-year renewals discussed in F.4.1 and F.4.2—but does not include options to extend services, such as FAR 52.217–8, that are not under the clause.

More importantly, construing the up to six months of extended services authorized by FAR 52.217–8 as allowable in addition to the five years of performance under FAR 52.217–9( c ) is consistent with the purpose of FAR 52.217–8. According to another provision of the FAR:

Award of contracts for recurring and continuing service requirements are often delayed due to circumstances beyond the control of contracting offices. Examples of circumstances causing such delays are bid protests and alleged mistakes in bid. In order to avoid negotiation of short extensions to existing contracts, the contracting officer may include an option clause (see 17.208(f)) in solicitations and contracts which will enable the Government to require continued performance of any services within the limits and at the rates specified in the contract.

48 CFR § 37.111.

There is more to an option than the option clause, 52.217-8 or 52.217-9. The option clause merely states the terms for exercising the option. The option line item and other option terms of the contract, such as the specification or statement of work and the stipulation of the option performance period, are also part of the option. The option line item and other option terms must be read together with the option clause, and reading the line item and the clause together and applying the common law, a CO cannot exercise a 12-month option for 10 months, even if he or she exercises the 52.217-8 option for two months, because when it comes to exercising either option, they are different terms of the contract. A CO cannot read them together to arrive at a different interpretation of either of them than is clearly spelled out in the contract.

Any attempt to exercise an option based on terms different than those specified in the contract would constitute a counteroffer. The contractor can agree to or reject the counteroffer. However, if the contract agrees to accept the counteroffer, the CO will have conducted a sole source negotiation, which must be justified and approved in accordance with FAR Part 6. See Magnavox Electronic Systems Co., GAO Dec. B-231795, 88-2 CPD ¶ 431 (Nov. 2, 1988):

The FAR also provides that an agency may exercise an option only if the exercise accords with the terms of the option. FAR § 17.208(f). An agency is not permitted to negotiate with the awardee to reduce the option price stated in the contract if price competition for the option quantity is available. Varian Associates, Inc., B–208281, Feb. 16, 1983, 83–1 CPD ¶ 160, aff'd in relevant part sub nom Department of the Army—Reconsideration, B–208281.2, July 12, 1983, 83–2 CPD ¶ 78. [Footnote omitted.]

Presumably, the same would apply to any attempt to negotiate an option period of performance.

The solution to the problem posed in the original Wifcon Forum post would be to exercise the 12-month option and then terminate the contract for convenience if the requiring activity later decides that it does not need 12 months of services.

When Can COs Use The 52.217-8 Option?

A related matter that came up in the thread was whether the exercise of the 52.217-8 clause has to be consistent with the purposes stated in FAR 37.111, which states:

Award of contracts for recurring and continuing service requirements are often delayed due to circumstances beyond the control of contracting offices. Examples of circumstances causing such delays are bid protests and alleged mistakes in bid. In order to avoid negotiation of short extensions to existing contracts, the contracting officer may include an option clause (see 17.208(f)) in solicitations and contracts which will enable the Government to require continued performance of any services within the limits and at the rates specified in the contract. However, these rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance thereunder shall not exceed 6 months.

In other words, must the agency be in a tight spot in order to exercise the 52.217-8 option, or can it do so for its convenience? I think that the answer ought to be that an agency can exercise the option only when “circumstances beyond the control of contracting officers” delay award of a contract. But, as pointed out by Don Mansfield in one post in the thread, the Armed Services Board of Contract Appeals has ruled that regulatory purposes do not restrict the use of the 52.217-8 clause, since the clause says nothing about those purposes. See Griffin Services, Inc., ASBCA No. 52280, 02-2 BCA ¶ 31943 (Aug. 2, 2002).

In Griffin, the contract included the 52.217-8 option and some 52.217-9 options. It was badly priced and the contractor did not want the Government to exercise the 52.217-9 option. The CO failed to provide timely notice of intent to exercise, and the contractor refused to waive the deadline without a price adjustment. The CO then used the 52.217-8 clause to extend the contract for several months. The contractor filed a claim, arguing that the exercise of the option was not based on circumstances beyond the CO’s control. The board rejected that argument:

[T]he appellant seems to confuse what may have motivated the Government to provide for a standard clause extending contract services, and the expression of contractual intent which the language conveyed. As the Supreme Court has recently reminded in a unanimous opinion, when the Government enters the marketplace by way of contract and does business with its citizens, its rights and duties are governed generally by the law applicable to contracts between private individuals. Franconia Associates v. United States, 122 S. Ct. 1993, 2001 (U.S. 2002). Thus, we look to contract rules, not regulatory rules, for the interpretation of this clause.

The plain, objective, language of the Option to Extend Services clause is not limited as to the reasons for its use.

Conclusion

When Congress shut down the Government, it put at risk virtually every annual extension option in every Government contract, to the extent that those options could not be exercised in exact accord with their terms. COs punted, and it appears that everyone who did got away with it, at least as far as we know. But no CO should be deluded about the rules. The solution to such funding hiccups is not the wacky one proposed by the Army contracting director, but to write terms that would permit the CO to make unilateral adjustments to option terms in response to future funding delays and shutdowns.

When answering questions about the proper exercise of options, begin with the terms of the contract, which should include (1) the terms of the option itself (i.e., the offer to perform) and (2) the terms of the applicable contract clause, and then remember that COs must adhere to both the common law rules about options as well as the requirements of FAR Subpart 17.2 and FAR supplements.

For a general discussion of the legal issues associated with the exercise of options, see Nibley and Armstrong, The Government’s Exercise of Options, Briefing Papers (July 2013). It’s must-reading.

Vern Edwards

In a hearing held on November 14, 1973, before the Subcommittee on Priorities and Economy in Government of the Joint Economic Committee of Congress, the late, great Elmer Staats, Comptroller General of the United States and member of the special Commission on Government Procurement, told the late, great Senator William Proxmire of Wisconsin of his high hopes for the proposed Office of Federal Procurement Policy (OFPP) as a source of leadership in the formulation and execution of procurement policy:

We think that there is a literal nightmare of conflicting and confusing contracting regulations or statutes as to procedures, which can do nothing more than cost the Federal Government a great deal of money by virtue of not having a stronger point of leadership in the executive branch to deal with these problems… There is no disagreement anywhere on the need for stronger leadership… [W]ithout legislation the executive branch is not going to face up to this problem in a realistic way.

* * *

As you know, a three year effort was recently completed for the Commission [on Government Procurement], created by Congress, of which I was a member, devoted entirely to a study of Government Procurement. Through this effort, we found a widespread consensus at both the grass-roots and highest levels in Government and industry of the need for a focal point in the executive branch to exercise leadership in (1) formulating and coordinating basic procurement policies and (2) overseeing their implementation in a procurement process which now involves the expenditure of $50 billion annually. It was found also that a central point of leadership was needed to work with the Congress in modernizing and consolidating the present fragmented statutory base and to develop a more uniform regulatory system among the many Federal agencies with extensive procurement activities.

Well, the system now spends about $500 billion annually, and we have our titular leadership focal point, the Administrator for Federal Procurement Policy in the Office of Management and Budget in the Executive Office of the President. Unfortunately, with only few exceptions, that leadership position has been occupied by a series of resume-padding bench warmers with few if any qualifications for the job (other than, maybe, a law degree -- which is not the same as professional knowledge of procurement) or with little if any leadership vision or ambition. The latest of them has announced his departure and plans to go to work for a reverse auction contractor. He will not be missed. Few will even notice he is gone.

According to the December 2 issue of Time magazine:

The President has never surrounded himself with people who have deep experience in managing government.

OFPP is a case in point.

​The duties and authority of the Administrator for Federal Procurement Policy are set forth in 41 U.S.C. 1121 and 1122. According to 41 U.S.C. 1121(a) and ( b ):

(a) Overall Direction and Leadership. The Administrator shall provide overall direction of procurement policy and leadership in the development of procurement systems of the executive agencies.

( b ) Federal Acquisition Regulation. -- To the extent that the Administrator considers appropriate in carrying out the policies and functions set forth in this division, and with due regard for applicable laws and the program activities of the executive agencies, the Administrator may prescribe Government-wide procurement policies. The policies shall be implemented in a single Government-wide procurement regulation called the Federal Acquisition Regulation.

According to 41 U.S.C. 1122, the functions of the Administrator are as follows:

(a) In General.— The functions of the Administrator include—

(1) providing leadership and ensuring action by the executive agencies in establishing, developing, and maintaining the single system of simplified Government-wide procurement regulations and resolving differences among the executive agencies in developing simplified Government-wide procurement regulations, procedures, and forms;

(2) coordinating the development of Government-wide procurement system standards that executive agencies shall implement in their procurement systems;

(3) providing leadership and coordination in formulating the executive branch position on legislation relating to procurement;

(4)(A) providing for and directing the activities of the computer-based Federal Procurement Data System (including recommending to the Administrator of General Services a sufficient budget for those activities), which shall be located in the General Services Administration, in order to adequately collect, develop, and disseminate procurement data; and

( B ) ensuring executive agency compliance with the record requirements of section 1712 of this title;

(5) providing for and directing the activities of the Federal Acquisition Institute established under section 1201 of this title, including recommending to the Administrator of General Services a sufficient budget for such activities.

(6) administering section 1703 (a) to (i) of this title [management of the acquisition workforce];

(7) establishing criteria and procedures to ensure the effective and timely solicitation of the viewpoints of interested parties in the development of procurement policies, regulations, procedures, and forms;

(8) developing standard contract forms and contract language in order to reduce the Federal Government’s cost of procuring property and services and the private sector’s cost of doing business with the Federal Government;

(9) providing for a Government-wide award to recognize and promote vendor excellence;

(10) providing for a Government-wide award to recognize and promote excellence in officers and employees of the Federal Government serving in procurement-related positions;

(11) developing policies, in consultation with the Administrator of the Small Business Administration, that ensure that small businesses, qualified HUBZone small business concerns (as defined in section 3(p) of the Small Business Act (15 U.S.C. 632 (p))), small businesses owned and controlled by socially and economically disadvantaged individuals, and small businesses owned and controlled by women are provided with the maximum practicable opportunities to participate in procurements that are conducted for amounts below the simplified acquisition threshold;

(12) developing policies that will promote achievement of goals for participation by small businesses, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns (as defined in section 3(p) of the Small Business Act (15 U.S.C. 632 (p))), small businesses owned and controlled by socially and economically disadvantaged individuals, and small businesses owned and controlled by women; and

(13) completing action, as appropriate, on the recommendations of the Commission on Government Procurement.

We still need leadership, now more than ever, but we are not going to get it -- not from this president or the next one. No one seems to take OFPP seriously, and with good reason based on its history. Only one administrator in recent memory has shown any leadership, Steve Kelman, and he left during President Clinton’s second term. No one since him has made much of an impression. (How many of them can you name?) No administrator has used his or her authority under 41 U.S.C. 1201 and 1703 to improve the quality of training provided to acquisition personnel by the Federal Acquisition Institute and the Defense Acquisition University. The leadership we have gotten has consisted mainly in showing up at this or that function, saying a few things about how important procurement is and how great the workforce is, putting out a not very memorable memo or two that most people don't read, and then taking off for greener pastures after a decent interval. The standard decent interval is about two years. We didn’t even get a decent interval from this last guy.

Our statutes and regulations are a mess. Our processes are cumbersome and inefficient, and needlessly costly and time-consuming. The members of our workforce, though smart enough, have little knowledge of the complex rule system (read the posts in Wifcon Forum), lack top-notch practitioner skills, and are not as competent as they should and could be. Yet, despite a lot of talk, we do not have an even adequate regime of professional education and training, much less an excellent or "World Class" one. In short, acquisition is a mess. Witness the health care website fiasco.

We need an administrative powerhouse, a heroine or a hero, not just a good guy or a nice gal, but heroines and heroes are not easy to find. Even if we found one, I doubt that she or he would want the job. A capable person might consider the nomination an insult. It is unlikely that anyone but another helpless and useless resume padder would want it. There will be another resume padder. I guarantee it.

Somebody in the Senate, anybody, of either party, should think about next year’s $500 billion, and the billions to come in the years after that, and block the nomination.

Vern Edwards

Barney Klehman

Barney Klehman, my friend of more than 30 years, died at his home sometime during the weekend. His office called to tell me. I was working outside when the call came. I knew something was wrong when I saw the look on my wife’s face as she came out to get me. She said Barney’s office had called with news. I was apprehensive when I went to the phone, because I was always worried about Barney’s health. I felt two ways when I was told: like a ton of bricks had fallen on me and suddenly empty inside. I kept thinking: You mean, I won’t see him again? Not ever again? Barney?

We’d had dinner in Arlington, Virginia with two other old friends the week before, and the week before that he and I had dined in Huntsville, Alabama. It didn’t seem possible. It didn’t compute. But I knew it was true. I had worried about the possibility of just this.

Barney had a close circle of intimate friends who had all worked together for the Air Force in El Segundo, California, at the Space & Missile Systems Organization (SAMSO), since the 1970s. I met him one summer when we both played on the contracting office softball team. He played softball the same way that he worked: passionately, with knowledge and skill, and with an it ain’t over ‘till it’s over commitment to success.

That commitment took him a long way. He started out working for the old Defense Contract Administration Service in Pasadena, California. Then went to SAMSO in the Air Force Systems Command. When he died he was an SES, Director of Acquisition for the Missile Defense Agency. In the course of his long career he worked on many programs and trained and mentored a lot of young contracting folks. You were very lucky if you got to work for Barney Klehman, because he cared about you and was devoted to your education and development. In return, you had to show that you cared, because Barney didn’t have much use for people who do not care and will not strive.

Even though we were both very opinionated and passionate about our work, I don’t recall us ever being angry at each other, although we sometimes did disagree. Many a disagreement ended with one of us saying, Hmm, I hadn't thought of that, or Yeah, okay, that’s right. You’re right. But we didn’t talk just work. We also talked sports (he knew a lot more than I) and life.

Barney had one fault that bothered all of his friends: He took better care of other people and of his work than he did of himself, which is why I worried about him. He did not take care of his health. Everybody complained to him about it and he always agreed, but he didn’t follow through. When I called one old friend to give him the news, he was shocked, I can’t believe this! and then furious, Blank-blank it! He didn’t take care of himself! We told him he had to take better care of himself!

Telephone calls throughout the day. Emails late into the night. Expressions of shock and grief. One friend sent us an email with photos of Barney through the years. I was glad to get those photos. They break my heart, but I can't stop looking at them.

The notice sent out by Vice Admiral Syring, Director of the Missile Defense Agency, said:

“Barney was a true professional with more than four decades of extensive contracting and acquisition leadership experience across the Air Force and Joint DoD Community. Beginning his federal service career in 1972 as a contract price analyst with what is now the Defense Contract Management Agency, he served in leadership positions in multiple program offices before joining the Missile Defense Agency in 2004. Barney dedicated his life to helping others grow professionally, and he was a passionate mentor and friend to many people throughout the Agency and DoD.”

Yes, that’s true. But what will stick with me is this one, that came in an email yesterday from a woman who had worked for him: “Barney was one of the kindest men I’ve ever known.”

There it is. One of the truest and best epitaphs I’ve ever read. That was Barney.

He was what the Irish call a darlin’ man.

Amicus vitae solatium. Amicus animae dimidium.

Vern Edwards

Just do it!

This morning I came across an article of Department of Defense news dated June 4, 2013, with the headline: “People at Center of Defense Acquisition Process, Official Says.” It describes an interview with the Assistant Secretary of Defense for Acquisition in which that official emphasized that people are at the heart of the Better Buying Power 2.0 program. You should read it, even if you don't work for DOD. You can access it here:

http://www.defense.gov/News/NewsArticle.aspx?ID=120204

The interviewee makes the de rigueur observation that the acquisition workforce was “decimated” and “downsized horrendously” during the 1990s, and that during the 2000s the emphasis was on spending money to meet the needs of the warfighter. Supposedly, the Better Buying Power initiative has changed all that. Now there is a “huge effort” to ensure that the workforce thinks and that it has the professional “tools and training” it needs. Right. Note that the interviewee did not describe one specific thing that has been or is being done to accomlish that goal. Not. One. Thing.

The interviewee said that acquisition is a “team sport” and “leaders” are needed. I agree. When will they get here? Henry V made a great speech at Agincourt, but then he fought.

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