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Emptor Cautus

In the 1973 futuristic mystery thriller Soylent Green there’s an exchange between Detective Thorn (Charlton Heston) and Hatcher (Brock Peters):

 

Det. Thorn: Ocean's dying, plankton's dying . . . it's people. Soylent Green is made out of people. They're making our food out of people. Next thing they'll be breeding us like cattle for food. You've gotta tell them. You've gotta tell them!

 

Hatcher: I promise, Tiger. I promise. I'll tell the Exchange.

 

Det. Thorn: You tell everybody. Listen to me, Hatcher. You've gotta tell them! Soylent Green is people! We've gotta stop them somehow!

Acquisition Reform is like Soylent Green, it’s people. I don’t mean the Congresscritters, like Representative Thornberry and Senator McCain, and their Committees. I don’t mean the Administrator of the Office of Federal Procurement Policy, whoever he or she may turn out to be. I don’t mean the acquisition and procurement policy wonks in the Pentagon and elsewhere.

This past week (i.e., 14 – 20 May 2017) was a big week for the professional acquisition reformers:

 

The Advisory Panel on Streamlining and Codifying Acquisition Regulations issued the “Section 809 Panel Interim Report” (May 2017). Read the 60 page report, and formulate your own opinion if it will fix the problems in Government acquisition. Frankly, I think it will take more than getting rid of the $1 coin requirement, but I could be wrong.

 

Representative William McClellan "Mac" Thornberry introduced H.R. 2511 “To amend Title 10, United States Code, to streamline the acquisition system, invest early in acquisition programs, improve the acquisition workforce, and improve transparency in the acquisition system.” The short title on that would be ‘‘Defense Acquisition Streamlining and Transparency Act’’. (sic) Read the 80 page resolution, and formulate your own opinion if it will fix the problems in Government acquisition. [If we have Representative Thornberry, can Senator McCain be far behind? (Or, is that FAR behind?)]

 

A (moderately) reliable source has told me that the Department of Defense will be leaving Better Buying Power behind, now that Mssrs. Carter and Kendall are gone. But, wait, acquisition reform has not been abandoned. Apparently, it will go on, but now as “Continued Acquisition Reform.” Presumably that will be abbreviated as “CAR.” Continued Acquisition Reform should not be confused with Continuous Acquisition Reform nor Continued Acquisition Reform, nor Continuous Process Improvement, for that matter, those would all be bygone days.

The professional acquisition reformers have time and again passed legislation and issued regulations to “fix” the acquisition process.  This fiscal year (2017) Title VIII (i.e., Acquisition Policy, Acquisition Management, and Related Matters) of the National Defense Authorization Act (NDAA) had 88 sections. The year before, 77 items. And, yet, Representative Thornberry and Senator McCain believe there is a need for a lot more acquisition reform legislation this year. Title VIII has included over 500 sections over the last ten years, but we still need more. What we have at issue here is what is referred to as the Law of the Instrument. Although he was not the first to recognize the Law, Abraham Maslow is probably the one best remembered for articulating it, "I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail." For those of us on the receiving end of the Congressional output that would be, “I suppose it is tempting, if the only tool you have is a legislation, to treat everything as if it were a bill." I suspect, although I cannot be positive, that most, if not all, of the folks doing the legislating have never had to use the Federal Acquisition Regulation (FAR) to buy anything. If they had, they would not be nearly so cavalier in tossing around statements about how bad the acquisition process is, and how more legislation is the answer.

Will such legislation solve the acquisition problem? According to the Honorable Frank Kendall the answer is a resounding “NO.”

 

Quote

Frank Kendall, then undersecretary of defense for acquisition, technology and logistics (USD(AT&L)), condemned, or “slammed,” or “blasted,” such legislation.

Frank Kendall, who has served as the Pentagon's top weapons buyer since October 2011, blasted Congress's acquisition reform efforts, which he said almost inevitably create more bureaucracy and regulation.

Kendall called legislative action “an imperfect tool to improve acquisition results.”

“It is not a good instrument to achieve the results that I think the Hill is after, but they keep trying,” he said. “To be honest, I believe that as often as not, what they do does not help. In some cases, it has the opposite effect.”

Bloomberg Federal Contracts Report, “Outgoing DOD Weapons Buyer Slams Congress’ Acquisition

But, in all fairness, it’s not just them. Since we last had a reissuance of the FAR in March 2005, the FAR Council has brought us 95 Federal Acquisition Circulars (FACs) to update and expand the FAR. Since we last has a reissuance of the Defense Federal Acquisition Regulation Supplement (DFARS) in January 2008, the Defense Acquisition Regulations Council has brought us 211 Defense FAR Supplement Publication Notices (DPNs). With all of that, there are still dozens of open FAR and DFARS cases yet to be heaped on our plate. Although legislation may have been a major root cause of much that change activity, we can probably offer some of our “thanks” to the President, OMB, OFPP, GAO, Boards of Contract Appeals and Courts. Admittedly, now and again, a good idea actually gets slipped into the regulations. [Note: The number of FACs and DPNs issued in 2017 was artificially suppressed as a result of Executive Order 13771 – Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. The two councils (i.e., FAR Council, Defense Acquisition Regulations Council (DAR Council) and the Civilian Agency Acquisition Council (CAA Council)) withheld publication of a large number of cases while policies and procedures were “sorted out.”]

[Note: Refer to Augustine’s Laws, Law Number XLIX: Regulations grow at the same rate as weeds.]

And, if that were not enough, we have institutional acquisition reform (e.g., policy letters, memoranda, directives, instructions, guidebooks, handbooks, manuals). Everyone seems to want to get into the act in one way or another. It is interesting to note, however, that the “perpetrators” of this institutional acquisition reform do not see it in the same light as acquisition reform legislation.

But, I recognize the lesson that King Canute was trying to teach when, in the apocryphal anecdote, he had his throne taken to the sea and ordered the tides not to come in. They did anyway. Legislators will legislate, it’s what they do. Regulators will regulate, it’s what they do. Policy makers will policymake, it’s what they do. None of them will willingly give up their rice bowls.

Let’s get back to Soylent Green.

 
Quote

“Acquisition improvement is going to have to come from within. It is not going to be engineered by Hill staffers writing laws for us,” Kendall said. “It's going to be done by people in the trenches every day, dealing with industry, trying to get incentives right, trying to get the performance right, trying to set up business deals and enforce them, set reasonable requirements in our contracts.”

Bloomberg Federal Contracts Report, “Outgoing DOD Weapons Buyer Slams Congress’ Acquisition Fixes,” Andrew Clevenger, January 17, 2017

 

Better Buying Power (BBP)? The Honorable Mssrs. Carter and Kendall were responsible for BBBP, in all its iterations. Did that rise up from the trenches? Or, was it handed (or pushed) down from above? Isn’t this a bit like the pot calling the kettle black? If you will permit the adding of a single letter to a line of Hamlet by William Shakespeare, "The laddy doth protest too much, methinks."

[Note: Refer to Augustine’s Laws, Law Number L: The average regulation has a life span one-fifth as long as a chimpanzee's and one-tenth as long as a human's, but four times as long as the official's who created it.]

Well, whichever way you look at it (i.e., upside, downside, sidewise) it is all more work for the acquisition professionals that must do the daily work of buying supplies and services for the Government. If you want to have an idea of how all of this acquisition reform weighs us down, then take a look at William Blake’s illustration “Christian Reading in His Book” for John Bunyan’s The Pilgrim's Progress. It will depend on how many pixels the image you find has, but it looks to me that he is reading the FAR.

Who are the Soylent Green? Not the policymakers, but the people in the trenches, doing the hard work of acquisition on a daily basis, day in and day out, week in and week out, month in and month out, year in and year out. The contract specialist, contract negotiator, contract administrator, cost or price analyst, purchasing agent or procurement analyst just trying to get the job done. These are, for the most, part the unsung heroes and heroines of acquisition reform. These are the ones who, through innovation and personal initiative reform that acquisition process, one acquisition at a time. And, if we are lucky, or clever, are able to pass successes along to others.

As acquisition professionals, we must pass on our successes, and failures, to others, so that they may join in the fruits of success, and avoid the pitfalls of failure. You cannot count on “Lessons Learned,” alone. How often do lessons learned go unread and unlearned? You cannot count on “Best Practices,” alone. How often do best practices, go unread and unpracticed? Share with others. Share quickly. Share often. Share wherever you can.

A final thought.

Quote

So what is to be done? By and large the answer to that question is well understood—in fact, many friends of mine such as former Deputy Secretary of Defense David Packard; the head of the Skunk Works Kelly Johnson; Air Force General Bennie Schriever; Admiral Wayne Meyer and Army General Bob Baer, among others, were providing the answer decades ago. What is required is simply Management 101. That is, decide what is needed; create a plan to provide it, including assigning authority and responsibility; supply commensurate resources in the form of people, money, technology, time and infrastructure; provide qualified leadership; execute the plan; and monitor results and strenuously enforce accountability. Ironically, little of this requires legislation—but it does require massive amounts of will . . . from all levels of government. Unfortunately, many of the problems are cultural—and it is difficult to legislate culture. But there is much that could be done.

Views from the Honorable Norman R. Augustine

The Acquisition Conundrum

DEFENSE ACQUISITION REFORM: WHERE DO WE GO FROM HERE? A Compendium of Views by Leading Experts, STAFF REPORT PERMANENT SUBCOMMITTEE ON INVESTIGATIONS UNITED STATES SENATE (October 2, 2014)

The absolute final thought. I’m sorry, I can’t help myself. I don’t care about King Canute: Don’t legislate. Don’t regulate. Just leave us alone to do our work as best we can.

 

 

 

 

 

 

 

Emptor Cautus

Had you ever speculated on why April Fools’ Day seems to be such an important day for federal acquisition? After all, consider some of the regulatory and policy issuances on that day:

  • The Federal Acquisition Regulation (FAR) became effective on April Fools’ Day (1984).

  • The Federal Aviation Administration became exempt from the FAR on April Fools’ Day (1996).

  • The Office of Federal Procurement Policy (OFPP) memorandum on “Protests, Claims, and Alternative Dispute Resolution (ADR) as Factors in Past Performance and Source Selection Decisions” was issued on April Fools’ Day (2002).

  • Army Federal Acquisition Regulation Supplement (AFARS) Revision #25 was issued on April Fools’ Day (2010).

  • FAR Case 2010-015 on the Women-Owned Small Business (WOSB) Program was published in the Federal Register on April Fools’ Day (2011).

No doubt a little research would provide a number of additional examples.

Frankly, if it were me, April Fools’ Day would probably be the last day that I would pick for issuing important regulations or policy statements. That is one day that I would avoid like the plague. [Note: The last statement is not technically correct, I would go to greater extremes to avoid the plague than to publish an acquisition policy or procedure on April Fools’ Day.] Why not just wait a day, and avoid all the innuendo and snickering? After all, consider, April has 29 other days that are perfectly suitable for issuing regulations, policies, procedures, guidance and information.

Comparison of Major Contract Types

For example, on Monday, April 25, 2016, the Defense Acquisition University/Defense Systems Management College updated the Acquisition Community Connection with a revised version of its Comparison of Major Contract Types (i.e., Comparison of Major Contract Types - April 2016). [For those who would like a direct link: https://acc.dau.mil/CommunityBrowser.aspx?id=214513.] The new version better aligns with the terminology in the Contract Pricing Reference Guides, updates the charts on the reverse, and adds a chart on “Achieving a Reasonably Challenging but Achievable (RCA) Target Cost,” one of topics discussed extensively in the new Guidance on Using Incentive and Other Contract Types.

Over the years, various versions of the “Comparison” have been fairly popular (i.e., 94,863 Page Views and 80,840 Attachments Downloaded. Although, given the number of personnel in the Defense Statutory Acquisition Workforce Contracting Career Field, 29,690 as of the 2nd quarter of 2015, those Lifetime Activity numbers may not be all that high, relatively speaking.

The April Fools’ Day Announcements for 2016

So, it can be done. However, this April Fools’ Day (2016) Defense Procurement and Acquisition Policy (DPAP) elected to issue two important pieces of procedures/guidance to the Defense Statutory Acquisition Workforce:

  • Guidance on Using Incentive and Other Contract Types (April 1, 1016).

  • Department of Defense Source Selection Procedures (SSP) (April 1, 1016).

The Guidance

Both documents have their warts. For instance, the Guidance incorrectly identifies one of the two statutory references for limitations on negotiation of price or fee. The good news is that thee one applicable to the DoD was identified correctly. Running the Spelling and Grammar checker one last time would not have been amiss.

Warts aside, the results of this Better Buying Power (BBP) are somewhat disappointing. The Specific Action in the USD(AT&L) memorandum “Implementation Directive for Better Buying Power 2.0 - Achieving Greater Efficiency and Productivity in Defense Spending” was, “Director, DP will provide a draft policy guidance document on the use of incentives in contracting to the BSIG for review by July 1, 2013. The starting point for this document will be the DoD and NASA Guide, “Incentive Training (sic) Guide,” originally published in 1969.”

For those of you unfamiliar with the Incentive Contracting Guide, it was the last of a number of such guides published in the 1960s. That particular version of the Guide was 252 pages. By comparison, the new Guidance is 41 pages. About 40 % of the Guidance is devoted to negotiation of fixed-price incentive (firm target) (FPIF) contracts in a sole-source environment a discussion of Reasonably Challenging but Achievable Target Cost (RCA), which go hand-in-hand. The coverage for Time and Materials/Labor Hour (T&M/LH) Contracts amounts to a paltry nine (9) lines. Ask yourself these two questions, “How many sole-source FPIF contracts does the Department award? If ‘T&M is the least preferable contract type,’ where should the emphasis have been placed?”

For those of you who need guidance on structuring multiple incentive contracts the DOD and NASA Guide: Incentive Contracting Guide 1969 may be a better bet than the new Guidance. The good news is that it is still available on the Defense Acquisition University’s Acquisition Community Connection. [For those who would like a direct link: https://acc.dau.mil/CommunityBrowser.aspx?id=189615.]

The Procedures

The updated Source Selection Procedures are more than 505 longer than the previous version. The Procedures would have benefited from fact checking, copy editing and proof reading. Another warts issue.

Warts aside, for those of you who will be involved in DoD source selections that meet the thresholds in the Procedures, you will want to give it a thorough read. Among other things, you will see some new descriptions of adjectival ratings and a new source selection procedure in APPENDIX B, “TRADEOFF SOURCE SELECTION PROCESS: SUBJECTIVE TRADEOFF AND VALUE ADJUSTED TOTAL EVALUATED PRICE (VATEP) TRADEOFF.” The latter came about as the result of USD(AT&L) memorandum “Implementation Directive for Better Buying Power 2.0 - Achieving Greater Efficiency and Productivity in Defense Spending.” Under the heading of Better define value in “best value” competitions there was a Specific Action, “Director, DP will review the ‘Process Manual’ developed by the joint Service team led by the Air Force and present a recommendation for adoption with any recommended changes to the BSIG by July 1, 2013.” You need to read the entire section to understand the direction. No doubt you will see a good deal of discussion about VATEP percolating up.

Understand that although the Guidance and Procedures were issued on April Fools’ Day, they are no joke. Read them carefully, and implement them wisely.

Emptor Cautus

This post is not really so much about misunderstanding the missing words, but the misunderstanding that is created by the missing words when read or hear "All contractors must be treated the same" or "All offerors must be treated equally", or such similar sentences. It is the part that should come after, but in many cases does not, that concerns me.

In the GAO Bid Protest Annual Report to Congress for Fiscal Year 2014 (B-158766, GAO-15-256SP), November 18, 2014, Susan A. Poling, General Counsel of Government Accountability Office, wrote:

Of the decisions resolved on the merits during fiscal year 2014, our Office sustained 13 percent. Our review shows that the most prevalent reasons for sustaining the protests during the 2014 fiscal year were: (1) failure to follow the evaluation criteria;1 (2) flawed selection decision;2 (3) unreasonable technical evaluation;3 and (4) unequal treatment.4 [Footnotes omitted]

[Well, at least she signed. Keep in mind that Washington, DC is a place where people write letters they don’t sign, and sign letters they don’t write.]

My concern is with the last of the four reasons “unequal treatment.” What’s wrong with that? What's wrong with not treating offerors equally? Where in the Federal Acquisition Regulation (FAR) does it say that all prospective contractors or all offerors or all contractors must be treated equally? Does it even make sense to treat all prospective contractors or all offerors or all contractors equally?

Similarly, in recent conversations I’ve heard contracting officers make similar statements, such as “all contractors must be treated equally” or “all offerors must be treated the same.” I would ask the same questions that I asked concerning the GAO statement.

What the comments of the GAO and of the contracting officers have in common is the underlying concept that everyone must be treated equally, must be treated the same. Does that make sense? At first blush, it may. After all, that’s fair, isn’t it? We were all reared being taught that we should be fair. That’s why in kindergarten everyone got equal access to the toys. But, let’s explore that concept with a simple example.

Let’s say that you are a contracting officer conducting a source selection IAW FAR Part 15, and it is time to conduct discussions with offerors in the competitive range. You have two offerors in the range Acme and Beta. You decided to hold discussions with Acme first. Your biggest concern with Acme’s proposal is the price, which was 17 percent above the Government estimate. In discussions you told Acme that its price was too high, significantly so, and that Acme needed to sharpen its pencil prior to final proposal revisions. Now, it is time to hold discussions with Beta, which has a price 17 percent below the Government estimate. What do you say to Beta? Well, if all offerors "must be treated the same," you must tell Acme that its price is too high, significantly so, and that Beta needs to sharpen its pencil prior to final proposal revisions.

Ridiculous you say? Absolutely! But, it is the ultimate conclusion, if all offerors must be treated the same, but only if. However, all offerors need not be treated the same.

What does the FAR have to say on the subject? The FAR requires that contracting officers conduct business with integrity, fairness, and openness. Specific to this issue is FAR 1.102-2( c )(3):

The Government shall exercise discretion, use sound business judgment, and comply with applicable laws and regulations in dealing with contractors and prospective contractors. All contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same. [Emphasis added]

What the GAO or contracting officers mean, or should mean, when they say all offerors and contractors must be treated the same or treated equally relates to the words that are typically left unsaid, but, hopefully meant (i.e., "in like circumstances").

Let’s go back to what the GAO said about unequal treatment. The footnote that was omitted above:

E.g., Alutiiq Pacific, LLC, B-409584, B-409584.2, June 18, 2014, 2014 CPD ¶ 196 (finding that agency disparately assigned strengths to awardee’s and protester’s proposal for offering essentially the same feature).” In the headnotes of the case it states “Protest that agency disparately assigned strengths to proposals during its evaluation is sustained where record shows that agency assigned different number of strengths to awardee’s and protester’s proposals for offering essentially the same feature.

The issue, then, is not unequal treatment, but unequal treatment in like circumstances. That is why in our fictitious negotiation the contracting officer will actually tell Acme that its price is too high and Beta that its price is too low.

In another protest, in another footnote, GAO gives another explanation:

8 In any event, where a protester alleges unequal treatment in the agency’s evaluation of past performance, it must show that the differences in ratings did not stem from differences between the offerors’ past performance, but rather, that the offerors were rated differently where there were similarities in their past performance. Myers Investigative and Security Servs., Inc., B-288468, Nov. 8, 2001, 2001 CPD ¶ 189 at 7-9; see Paragon Systems, Inc.; SecTek, Inc., B-409066.2, B-409066.3, June 4, 2014, 2014 CPD ¶ 169 at 8-9. Given the differences in the type of performance issues identified, their severity, and their recency, Global has made no such showing. [Global Integrated Security (USA) Inc., B-408916.3; B-408916.4; B-408916.5, December 18, 2014, Page 12, Footnote #8.]

To give you another example, from a different source, you can see this issue addressed in Federal Procurement Policy Administrator Dan Gordon’s “Myth-Busting”: Addressing Misconceptions to Improve Communication. The memorandum discusses various myths, or misconceptions, about Government-Industry relations. The first misconception was “We can’t meet one-on-one with a potential offeror.” The fact is described as Government officials can generally meet one-on-one with potential offerors as long as no vendor receives preferential treatment. The discussion, in part states:

Prior to issuance of the solicitation, government officials – including the program manager, users, or contracting officer – may meet with potential offerors to exchange general information and conduct market research related to an acquisition. In fact, the FAR, in Part 15, encourages exchanges of information with interested parties during the solicitation process, ending with the receipt of proposals. There is no requirement that the meetings include all possible offerors, nor is there a prohibition on one-on-one meetings. Any information that is shared in a meeting that could directly affect proposal preparation must be shared in a timely manner with all potential offerors to avoid providing any offeror with an unfair advantage (FAR 15.201(f)). [Emphasis added]

If the FAR required that we treat all prospective contractors the same, we would have to provide one-on-one meetings with all. But we don’t have all the time in the world, so we must marshal our resources accordingly. Instead of providing one-on-one meetings with all, we provide them to the prospective offerors that have the potential to successfully compete, not to every Tom, Dick, and Harriet that doesn’t have a “snowball’s chance”. [That last bit is a technical term.] I know that this makes some contracting officers, and many lawyers, nervous, but it is the right and proper thing to do.

So, next time somebody says that all prospective contractors or all offerors or all contractors must be treated the same, or must be treated equally, look for the missing words, and think about whether the speaker is interpreting them correctly.

Emptor Cautus

Federal Acquisition Circular (FAC) 2005-73, effective May 29, 2013, eliminated the Truth in Negotiations Act (TINA).

Now that I have your attention, the FAC did not eliminate the TINA. What the FAC did was to rename The TINA “Truthful Cost or Pricing Data”. This was just one of a number of changes to the Federal Acquisition Regulation (FAR) that resulted from positive law codifications.

Let’s discuss positive law codification of Public Laws 107-217 and 111-350 which were recently incorporated into the Federal Acquisition Regulation (FAR) at FAR 1.110. The former was revised, codified, and enacted as title 40, United States Code, Public Buildings, Property, and Works, and the latter was revised, codified, and enacted as title 41, United States Code, Public Contracts.

For those of you who are unfamiliar with positive law codification, a few words from Office of the Law Revision Counsel of the United States House of Representatives, the office responsible.

POSITIVE LAW CODIFICATION

Positive law codification by the Office of the Law Revision Counsel is the process of preparing and enacting a codification bill to restate existing law as a positive law title of the United States Code. The restatement conforms to the policy, intent, and purpose of Congress in the original enactments, but the organizational structure of the law is improved, obsolete provisions are eliminated, ambiguous provisions are clarified, inconsistent provisions are resolved, and technical errors are corrected.

THE TERM "POSITIVE LAW"

When used with respect to the United States Code—as in positive law codification or a positive law title of the Code–the term "positive law" has a special and particular meaning. In general, however, especially in legal philosophy, the term "positive law" is used more broadly. There is overlap to be sure. But the meaning of the term as used generally is not identical to the meaning of the term as used with respect to the Code, and the distinction must be understood to avoid confusion. [1]

In general, the term "positive law" connotes statutes, i.e., law that has been enacted by a duly authorized legislature. [2] As used in this sense, positive law is distinguishable from natural law. The term "natural law", especially as used generally in legal philosophy, refers to a set of universal principles and rules that properly govern moral human conduct. Unlike a statute, natural law is not created by human beings. Rather, natural law is thought to be the preexisting law of nature, which human beings can discover through their capacity for rational analysis.

Within the context of the Code, the term "positive law" is used in a more limited sense. A positive law title of the Code is a title that has been enacted as a statute. To enact the title, a positive law codification bill is introduced in Congress. The bill repeals existing laws on a certain subject and restates those laws in a new form–a positive law title of the Code. The titles of the Code that have not been enacted through this process are called non-positive law titles.

Non-positive law titles of the Code are compilations of statutes. The Office of the Law Revision Counsel is charged with making editorial decisions regarding the selection and arrangement of provisions from statutes into the non-positive law titles of the Code. Non-positive law titles, as such, have not been enacted by Congress, but the laws assembled in the non-positive law titles have been enacted by Congress.

In both positive law titles and non-positive law titles of the Code, all of the law set forth is positive law (in the general sense of the term) because the entire Code is a codification of Federal statutes enacted by Congress, and not of preexisting natural law principles.

--------------------------------------------------------------------------------

[1] Why is there a specialized meaning for the term "positive law" with respect to the United States Code, and why is this term used despite the potential for confusion with the broader meaning given to the identical term in legal philosophy? The answer involves a historical solution to a statutory drafting problem. For generations, Congress has used the term "positive law" when it enacts a title of the Code, as such, into statutory law. For example, section 1 of the Act of July 30, 1947 (1 U.S.C. note prec. 1), provides in relevant part: "Title 1 of the United States Code entitled 'General Provisions', is codified and enacted into positive law . . . ." (emphasis added). Earlier legislative drafters chose the term "positive law" in order to capture the abstract distinction between a title of the Code that has been enacted, as such, versus a title of the Code that has not been enacted, as such, but that sets forth enacted statutes. More literally, this distinction might be expressed as "enacted title" versus "non-enacted title", but those literal terms are problematic since they incorrectly suggest that provisions set forth in a "non-enacted title" of the Code have not been enacted. Those provisions have been enacted, but as part of a number of freestanding statutes rather than as part of an enacted (positive law) title. The specialized use of the term "positive law" in this situation captures the abstract distinction between the two types of titles in the Code, and the use of the term in this way is now well established.

[2] "Positive law typically consists of enacted law—the codes, statutes, and regulations that are applied and enforced in the courts. The term derives from the medieval use of positum (Latin "established"), so that the phrase positive law literally means law established by human authority." Black's Law Dictionary 1200 (8th ed. 2004).

As a result of the two positive law codifications there are a number of changes to the FAR in terminology and statutory references. In the loose-leaf edition, the circular is 614 pages long.

As an example, the Truth in Negotiations Act is now Truthful Cost or Pricing Data, at 41 U.S.C. chapter 35. From an historical perspective, the “Truth in Negotiations Act” was not the Truth in Negotiations Act. Public Law 87-653 doesn’t even use the term “truth” in its text. Early authors used various terms, in addition to TINA, to refer to the act (e.g., “Defective Pricing Data Statute," "Defective Pricing Law," "Truth in Negotiations Statute" and “Truth-in-Negotiating Certificate"). (See Alan E. Kushnick’s Equitable Reduction Under the Defective Pricing Statute: Public Law 87-653, Santa Clara Law Review, 1-1-1968.)

In some instances the only change was dropping the word “Act”:

Anti-Kickback Act is now Kickbacks

Buy American Act is now Buy American

Drug-Free Workplace Act is Drug-Free Workplace

Office of Federal Procurement Policy Act is now Office of Federal Procurement Policy

In other instances the changes were more substantial:

Brooks Architect Engineer Act is now Selection of Architects and Engineers

Contract Disputes Act of 1978 is now Contract Disputes

Contract Work Hours and Safety Standards Act is now Contract Work Hours and Safety Standards

Davis-Bacon Act is now Wage Rate Requirements (Construction)

Federal Property and Administrative Services Act of 1949, Title III is now Procurement

Javits-Wagner-O'Day Act is now Committee for Purchase from People Who Are Blind or Severely Disabled

Miller Act is now Bonds

Procurement Integrity Act is now Restrictions on Obtaining and Disclosing Certain Information

Service Contract Act of 1965 is now Service Contract Labor Standards

Walsh-Healey Public Contracts Act is now Contracts for Materials, Supplies, Articles, and Equipment Exceeding $15,000.

A word of caution and a recommendation for all of you who use the online FAR and search electronically. Out of long time habit, and a desire to know what specific changes are made in each FAC, I still maintain my loose-leaf version of the FAR. [Note: I am not a (total) Luddite. I do use the online versions of the FAR at Acquisition Central and the FARSite.] As such, I know the changes that were made as a result of the FAC under discussion were not limited just to changes in the names of statutes and their references. As a result of law revisions, there were other changes made to terminology. For example, for all of you Competition Advocates out there, you are no longer Competition Advocates; you are now Advocates for Competition. An electronic search for “Competition Advocate” will return zero hits. You had best know that Advocates for Competition are found in FAR Subpart 6.5, the same place where you used to be able to find Competition Advocates. I mention this as a word of caution for when you do electronic searches. What you may remember as a term you used routinely, and could find easily, may no longer exist. The recommendation would be to consider keeping your own loose-leaf version of the FAR. I do not have high hopes that this recommendation will be embraced wholeheartedly by one and all.

Finally, you should know that there was a Wifcon discussion about this topic in May: http://www.wifcon.com/discussion/index.php?/topic/2569-fac-2005-73-positive-law-codifications-of-title-41-usc/#entry22195. If you had not done so previously, you might look in.

Emptor Cautus

Experience is the teacher of all things.

― Julius Caesar, Commentarii de Bello Civili (Commentaries on the Civil War), (c. 52 B.C.).

In a previous Blog, I said:

Note that the evaluation approach put forth as a solution in West Coast is somewhat different than what I suggest, which has not been addressed by the Comptroller General. For those of you who are concerned about my approach giving an unfair advantage to an offeror with no past performance information let me suggest, as Mr. McGuire did to Benjamin in The Graduate, “ I just want to say one word to you. Just one word.” Experience. But, that is a subject for another Blog.

What am I suggesting by that?

In acquisitions exceeding the simplified acquisition threshold past performance shall be evaluated, unless waived by the contracting officer. (FAR 15.304( c )(3). In addition to, and separate from, past performance the source selection should evaluate “Experience.” Past performance deals with how well an offeror has performed prior efforts. Experience deals with whether the offeror has performed such efforts. Absent past performance information, the Federal Government may not treat the offeror favorably or unfavorably. Absent experience, the Federal Government may evaluate an offeror unfavorably, if the evaluation factors for award in the solicitation so state.

Can you do that? According to the Comptroller General of the United States, you can. Let me provide you pertinent parts from just two Government Accountability Office protest decisions that demonstrate that you can.

Commercial Window Shield, B-400154, July 2, 2008

CWS’s argument, however, fails to recognize that the experience and past performance factors reflected separate and distinct concepts. Under the experience factor, the agency examined the degree to which a vendor had experience performing similar projects; under the past performance factor, the agency considered the quality of a vendor’s performance history. Given the fundamentally different nature of the evaluations, a rating in one factor would not automatically result in the same rating under the other.

Shaw-Parsons Infrastructure Recovery Consultants, LLC; Vanguard Recovery Assistance, Joint Venture; B-401679.4, March 10, 2010

Generally, an agency’s evaluation under an experience factor is distinct from its evaluation of an offeror’s past performance. Specifically, the former focuses on the degree to which an offeror has actually performed similar work, whereas the latter focuses on the quality of the work.

You remember the concern expressed by Frere Two?

To me the Government is disadvantaged by a proposer with no relevant past performance. Why did they write the regulation in such a manner? Just as you would not want to ignore favorable or unfavorable information, why would you ignore the lack of?

The approach described above, addresses his concern. Well, it doesn't address his concern about why they wrote the regulation is written in such a manner. Unfortunately, the answer to that is the same as Inspector Javert gave to Jean Valjean in Les Misérables, “Right or wrong, the law is the law and it must be obeyed to the letter.” But, it does provide a way for him to work within the law to achieve, essentially, the same effect.

Emptor Cautus

BLUF: No. Or, just maybe, it depends.

[For those of you who are unfamiliar with BLUF, it stands for “Bottom Line Up Front”. If you’re required to give presentations to high ranking officials on a repetitive basis, you learn their foibles. Some will listen patiently to your entire presentation, no matter how tedious. Others always jump to the Conclusion slide, just so they’ll know what’s coming. For the latter, we would put the conclusion on the first slide after the title slide to save time. But, you can’t really call it the Conclusion at that point, so it becomes BLUF.]

In a previous Blog, I had mentioned that in acquisition we have a tendency to use a number of words and terms not in the Federal Acquisition Regulation (FAR). One such was the term “neutral,” as used in past performance. Let’s explore that term, and its use in source selection evaluations, a little more, beginning with the term itself.

If you look up the term “neutral” in a dictionary, you will commonly see a number of meanings (e.g. non-belligerents in war, arbiters or mediators between parties, pale colors). I looked in a number of dictionaries (i.e., Webster’s New College Dictionary, The American Heritage Dictionary of the English Language, Oxford Dictionary of English, New Oxford American Dictionary, Black’s Law Dictionary). For instance, the third definition in Webster’s New College Dictionary:

belonging to neither extreme in type, kind, etc.; without strongly marked characteristics; indefinite, indifferent, middling, etc.

Interestingly enough, the definitions that were most appealing to me were the electrical and mechanical definitions of neutral, neither positively or negatively charged and gears in a disengaged position.

But, what does that mean for evaluation of past performance in source selections? Here are the five most recent protest decisions of the Comptroller General that discuss “neutral”.

Matter of: PeoplePower LLC

File: B-409396

Date: April 2, 2014

RFQ No. M67001-14-T-0001: If a vendor did not have a record of past performance, or past performance information was not available, the vendor would not be evaluated favorably or unfavorably under the factor; a rating of neutral would be assigned.

Matter of: Ashland Sales & Service Co.

File: B-408010.6; B-408010.7

Date: March 28, 2014

RFP No. SPM1C1-11-R-0132: The ratings for the past performance quality and delivery performance subfactor were exceptional, very good, satisfactory, marginal, unsatisfactory, and neutral.

Matter of: Ma-Chis Kawv V, LLC

File: B-409344

Date: March 20, 2014

RFP No. W912QR-13-R-0037: Offerors were informed that the agency would assess prime contractor experience as very relevant, relevant, somewhat relevant, or not relevant,2 and assess prime contractor past performance as substantial, satisfactory, limited, no confidence, or unknown confidence (neutral).3

3
Substantial confidence reflected a high expectation of successful performance, satisfactory confidence reflected a reasonable expectation of successful performance, limited confidence reflected a low expectation, no confidence reflected no expectation, and unknown confidence reflected a record that was so sparse no meaningful rating could be given. RFP amend. 1, at 8-9.

Matter of: Savvee Consulting, Inc.

File: B-408416.3

Date: March 5, 2014

RFQ No. SAQMMA12R0371: The agency’s technical evaluation panel (TEP) evaluated vendors’ nonprice quotations using an adjectival rating scheme that was set forth in the solicitation: excellent; good; marginal; unacceptable; and with regard to past performance, unknown/ neutral.

Matter of: A&D General Contracting, Inc.

File: B-409296

Date: February 24, 2014

RFP No. W91278-13-R-0046: The RFP provided that an offeror’s past performance would receive one of the following confidence assessment ratings: substantial confidence, satisfactory confidence, limited confidence, no confidence, or unknown confidence (neutral). RFP amend.

Have you been enlightened? Speaking for myself, I wasn’t. Ask yourself this question, “Now that a Neutral Rating has been assigned, how is that rating used when comparing various offerors in the evaluation of past performance?” Without a definition or a method of application, what is a rating of “neutral”? If you are unable to answer those questions, consider following the FAR, which doesn’t use “neutral”.

As discussed in a previous blog, the term neutral appears zero times in the Federal Acquisition Regulation (FAR). The phrasing used in FAR 15.305(a)(2)(iv) is “may not be evaluated favorably or unfavorably on past performance.” The regulatory requirement is derived from 41 U.S.C. 405(j)(2), now 41 U.S.C. § 1126 - Policy regarding consideration of contractor past performance.

41 U.S. Code § 1126 ( b ) Information Not Available.— If there is no information on past contract performance of an offeror or the information on past contract performance is not available, the offeror may not be evaluated favorably or unfavorably on the factor of past contract performance.

The requirement in the United States Code was a result of Section 1091, Policy Regarding Consideration of Contractor Past Performance, of Public Law 103-355, ‘‘Federal Acquisition Streamlining Act of 1994’’. So, where did the term neutral come from? The FAR itself, of course, that is the FAR as it was worded prior to Federal Acquisition Circular (FAC) 97-02, issued on September 30, 1997. The requirement was first written into the FAR at 15.608(a)(2) (iii) as, “Firms lacking relevant past performance history shall receive a neutral evaluation for past performance.”

Over the few short years that the term “neutral” appeared in the FAR, it caused a great deal of confusion, and litigation. The confusion can be seen in both the first and second sets of comments to the FAR Part 15 Rewrite (i.e., Federal Register, Volume 62, May 14, 1997 (62 FR 26639) and Federal Register, Volume 62 September 30, 1997 (62 FR 51226)). Here is the resolution in the latter:

. . . the final rule includes language based on 41 U.S.C. 405(j)(2) providing offerors, without a previous performance history, a rating that neither rewards nor penalizes the offeror. We selected this alternative to allow the facts of the instant acquisition to be used in determining what rating scheme would satisfy requirements of the statute.

What does “may not be evaluated favorably or unfavorably” or “neither rewards nor penalizes the offeror” mean? It would seem to me that the only way to achieve that in a direct comparison between two offerors, is that past performance would not be considered when one of the offerors has a neutral rating. Ignore it. Think about it. If you rank an offeror with the neutral rating lower than one with a good record of past performance on that criterion, you have treated the one with the neutral rating unfavorably by comparison. On the other hand, if you give them the same rating, which I have seen, you may be treating them favorably in comparison to other offerors. Either of these approaches is inconsistent with law and regulation. So, the only solution is to ignore past performance in any head-to-head comparison when one of the offerors does not have a record of relevant past performance or for whom information on past performance is not available. That is the only way to ensure they are not evaluated favorably or unfavorably.

The Comptroller General does not necessarily seem to see it my way. According to the United States Government Accountability Office (Wolf Creek Federal Services, Inc., B-409187,B-409187.2,B-409187.3: February 6, 2014, United States, in footnote 13):

Wolf Creek contends that its lack of relevant past performance was viewed by the SSA to be a significant weakness, because it was one of the discriminators that the SSA noted in his selection decision. Protest at 2, 7. The record shows, however, that Wolf Creek’s neutral past performance rating was not viewed to be a deficiency or a significant weakness. Rather, the SSA recognized, as he was permitted to do, that HMS’s past performance rating of moderate confidence provided benefits beyond Wolf Creek’s neutral rating. See West Coast Unlimited, B-281070.2, Aug. 18, 1999, 99-2 CPD ¶ 40 at 6.

However, if the SSA considered that HMS’ rating of moderate provided benefits wasn’t Wolf Creek treated unfavorably by comparison?

In the case that Wolf Creek cited to defend its case, West Coast Unlimited, the protestor had unsuccessfully argued that to meet the FAR requirement, they should receive the same rating as the successful offeror, to which the Comptroller General responded that would “require the agency to evaluate West Coast's lack of relevant past performance favorably, contrary to the specific language of the regulation, which requires a neutral (sic) evaluation.“ [Note that the Comptroller General’s FAR was not up to date, as the RFP was issued the year after deletion of “neutral,” so the language should have been “may not be evaluated favorably or unfavorably on past performance.”]

The evaluation approach put forth as a solution in West Coast is somewhat different than what I suggest, which has not been addressed by the Comptroller General. For those of you who are concerned about my approach giving an unfair advantage to an offeror with no past performance information, let me suggest, as Mr. McGuire did to Benjamin in The Graduate, “I just want to say one word to you. Just one word.” In this case the word is not “Plastics,” it’s “Experience.” But not today, that is a subject for another Blog.

Emptor Cautus

Remember the old TV commercials for toys that began, “Be the first on your block . . . ,” and then inserted the name of some new toy, doll, gun or game? Well, you can forget about that in this case. For those of you who have not already done so, I’m recommending that you consider downloading a document that has already been downloaded more than fifty thousand times since published on the web, and nearly four thousand times since it was last updated in January 2014. [As of today, the precise numbers were 52440 for Lifetime Activity and 3786 for Activity for the Last 90 Days. This is a very popular page, listed as “Popularity of this page: #1 of 85 items.”] The document I’m referring to is a chart entitled “Comparison of Major Contract Types,” published by the Defense Systems Management College (DSMC), which is a part of the Defense Acquisition University (DAU).

The Chart can be found on Defense Acquisition University (DAU) Acquisition Community Connection (ACC) Contract Cost, Price & Finance website at:

https://acc.dau.mil/CommunityBrowser.aspx?id=214513

Use that link, as older versions of the chart can be found in many, many places. You'll want the most current version.

As described on the Defense Acquisition University (DAU) Acquisition Community Connection (ACC) Contract Cost, Price & Finance webpage:

The Comparison of Major Contract Types Chart is based on the information in the Contract Pricing Reference Guides (Volume 4 – Advanced Issues in Contract Pricing, Chapter 1 - Establishing And Monitoring Contract Type), and updated for statutory/regulatory/policy changes and court decisions that have not been included in the Guides. On the reverse side of the Chart is additional information on contract types and incentives used in Defense Systems Management College (DSMC) courses at the Defense Acquisition University (DAU).

Now, that description tells you what is on the reverse, but not what is on the obverse (i.e., the front). For those of you who like to do on-line shopping, and check those little boxes so that you can do product comparison, this is just the thing. You have all the information you need for comparison in one small document. Well, small, if you consider 11 x 17 to be small. The first row across the top of the Chart lists the ten contract types to be compared (i.e., Firm-Fixed-Price (FFP), Fixed-Price Economic Price Adjustment (FPEPA), Fixed-Price Incentive Firm Target (FPIF), Fixed-Price Award-Fee (FPAF), Fixed-Price Prospective Price Redetermination (FP3R), Cost-Plus-Incentive-Fee (CPIF), Cost-Plus-Award-Fee (CPAF), Cost-Plus-Fixed-Fee (CPFF), Cost or Cost-Sharing (C or CS), and Time & Materials (T&M)). The first column down the left hand side of the Chart describes the seven items of information to be compared (i.e., Principal Risk to be Mitigated, Use When . . ., Elements , Contractor is Obliged to:, Contractor Incentive, Typical Application, and Principal Limitations in FAR/DFARS Parts 16, 32, 35, and 52).

The Chart is not new. I did a quick check through some files in what I laughingly refer to as my office, and found a copy dated NOV 84, almost 30 years ago. I decided not to look for an older version, as it might make me concerned about my age. Back then it was called “Types of Contracts.” The older version only compared four items of information (i.e., Description, Elements, Application, and Limitations). That Chart doesn’t say so, but I suspect the information came from the Armed Services Pricing Manual (ASPM) Vol.1. DoD, 1986, as the Contract Pricing Reference Guides didn’t exist back then.

The current version of the Charts dates back to 2008, when it was revamped, and published electronically. The Chart is updated, but not periodically, only when changes to the Federal Acquisition Regulation (FAR) or the Defense Federal Acquisition Regulation Supplement (DFARS) render content outdated. For example, the Chart was not updated in 2009, but was updated twice in 2013. [it could have been three time in 2013, as the change that drove the January 2014 version occurred in December 2013.] You need to check back from time to time to see whether a new version of the Chart has been posted.

There are two files on the website that you can download, VIEW and PRINT. You may need to download the latter, depending on the capabilities of your duplex printer. Of course, that presumes you have a duplex printer.

So, maybe you can’t be the first on your block, this time, but don’t be the last.

Emptor Cautus

In acquisition we have a tendency to use a number of “nonexistent" words and terms. Well, that might be overstating the issue somewhat, so let’s try again. In acquisition we have a tendency to use a number of terms that are not defined in the Federal Acquisition Regulation (FAR), but are in the FAR. I have no particular problem with that. However, I do have a wee bit of a problem when people in our business use terms as if they were in the FAR, even though they are not there. My concern is compounded by the fact that the people who use the terms don’t even realize that they are not in the FAR. I often wonder whether this is some strange twist of thinking based on the Christian Doctrine.

  • Independent Cost Estimate (ICE) – Appears zero times in the FAR. The terms used in the FAR, in descending order are: cost estimate(s) (27 times), independent Government estimate (4 times), and independent Government cost estimate (3 times). Of the 27 cost estimate references, 15 are to contractor or subcontractor cost estimates. The only requirements on the Government to actually create estimates are for independent Government estimates at FAR 36.203(a) and ( b ) and FAR 36.605(a).
  • Splitting Requirements, as used in avoiding the simplified acquisition threshold – Appears zero times in the FAR. The term used in FAR 13.003©(2) is break down
  • Source Selection Plan – Appears zero times in the FAR. The only reference to a related document in the regulation is at FAR 15.303( b )(2), where the source selection authority shall “Approve the source selection strategy or acquisition plan, if applicable, before solicitation release.”
  • Neutral, as used in past performance – Appears zero times in the FAR. The term used in FAR 15.305(a)(2)(iv) “may not be evaluated favorably or unfavorably on past performance.”
  • Warrant, as used in contracting officer authority – Appears once, incorrectly, at FAR 33.210 Contracting officer’s authority. The term used in FAR 1.603 and elsewhere is “Certificate of Appointment.”

The good news, such as it is, is that the vast majority of the people involved in acquisition don’t even realize that the words and terms are not in the FAR. And, if both the sender and the receiver are ignorant, well, they say ignorance is bliss. Those who do know, try, usually unsuccessfully, to correct the errors.

On occasion, the FAR Council will address the issue, through capitulation. For instance, in what was called the FAR Part 15 Rewrite, “Greatest Value” was changed to “Best Value,” and “Work Statement” was changed to “Statement of Work.” These are what we generally refer to as happy-to-glad changes, but they did align the FAR with current usage. But, don’t necessarily count on it happening for your pet term any time soon. For example, the term “neutral” was eliminated from the FAR in 1997, in favor of complying with the statute. Imagine that. And, as for the venerated “warrant,” the term “Certificate of Appointment” goes back to the Armed Services Procurement Regulation (ASPR) 1-405 Selection, Appointment, and Termination of Appointment of Contracting Officers. Under the ASPR, contracting officers were appointed using a DD Form 1539, Certificate of Appointment. Now, under the Federal Acquisition Regulation (FAR), contracting officers are appointed using a SF 1402 Certificate of Appointment. Having lasted over half a century, I suspect it is here to stay.

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