bob7947

Acquisition Research Program Newsletter: September 8, 2023

There has been a question asked of the original poster. Rule 17 is in effect.

This morning CMS identified the first 10 drugs that would be subject to contract negotiations for prices in the Medicare program. Is there anyone here invoved in this new program?

I was thinking this phrase comes from another phrase "two bites at the apple." My memory is telling me that may come up in sealed bidding. A bid, unlike an offer is meant to be final. You don't get a second bite at it. GAO uses the same logic as in "claim preclusion." They just don't call it that (at least I never noticed it.) So, where does "two bites at the apple" come from in a judicial proceeding?" I looked that up. "The first use of “two bites at the apple” in a judicial opinion did not come until the 1922 case of McCoy v. Tolar, in which the Supreme Court of Mississippi held that a party was not entitled to a new trial just because they had failed to offer available proof at the first trial." (Source: Noah Chauvin's How Lawyers Eat Apples.) There you are: Legal theory is based, in some part, on idioms.

Ever hear of "Claim preclusion?" Check it out here.

I don't know but here is A Guide to the Rulemaking Process by the Federal Register.

What did I do in Huntsville, Wifcon? For the 3 months in 1974 that I was there, I worked, drove around the Huntsville area in my 1971 240Z and began collecting and reading books. I'm looking at one of the those books now. It's still in my library: Will Rogers, The Man and His Times by Richard M. Ketchum. One of my colleagues from Atlanta took me to see "Contractors Row," in Huntsville which is a group of federal contractors and subcontractors lined up together on the same street. Then there was the French kid selling peanuts in one of the nearby shopping malls. Me with a Philadelphia accent and him with a French one. I bought a bag of the peanuts. The SRM Contractor Selection The Solid Rocket Motor (SRM) solicitation was for a Cost-Plus-Award-Fee procurement and the offerors in the table below were ranked according to technical factors in the following order. Although, the first three offerors were rated very good the numerical score favored Lockheed by 4 points. However, the Source Evaluation Board (SEB) evaluated Thiokol as the lowest most probable cost performer by $122 million on this estimated $800 million procurement. The SEB submitted its written report to the NASA Administrator who was the Source Selection Official (SSO) Score Overall Adjective Rating Lockheed 714 Very Good Thiokol 710 Very Good UTC 710 Very Good Aerojet 655 Good After selecting Thiokol, the SSO issued a selection statement that read A protest was inevitable and Lockheed protested. My Work Evaluating Offerors' Proposals and NASA's Evaluation As I look back now, I believe my 3 months in Hunstville was supposed to be little more than a learning experience or a training exercise. GAO was big on getting its auditors to experience field work and this was problably my chance. I had graduated from college in May 1971 and now I was in Huntsville in the Spring of 1974 effectively delaying the Space Program. GAO took pride in calling itself Congresses' Watchdog. With my lack of experience I, at best, was a Watchpuppy. In the beginning, I didn't know what a work breakdown structure (WBS) was nor did I know how a learning curve worked. And I surely didn't know how to build a solid rocket motor. By the end of my stay in Huntsville, I had memorized every WBS of manufacturing labor in both Thiokol's and Lockheed's proposals, understood Lockheed's Best & Final Offer with its troubling and unsupported learning curve projection, and knew enough to run the other way as fast as I could if someone mentioned ammonium perchlorate in my presence. Each member of our small audit team had a section of the offerors' proposals to study. I had to study the manufacturing labor hours section of the two proposals and then NASA's evaluation of them. In studying the two proposals, I noticed that one offeror presented manufacturing hours and quality assurance hours separately and the other presented them as one. However, they came out roughly the same. When I looked at NASA's evaluation of the offerors' presentation of labor hours, there was no mention of the differences. I was looking for precision and there wasn't any. After I finished my analysis, my Audit Manager from Washington arrived for my presentation to NASA's evaluators. I discussed in detail, from the smallest WBS to the largest, what the NASA evaluators had missed. In the end, I told the NASA evaluators they had compared apples to oranges in their evaluation. Here is what GAO wrote in its bid protest decision. In English, that meant that NASA did not make any adjustment to either offerors' cost. It accepted them as proposed. Then there was Lockheed's Best and Final Offer (BAFO) which reduced its estimated costs based on a learning curve adjustment. Learning curves are based on the theory that the more times you do the same task, the less time it takes you to do the task as one gains experience at it. In the protest decision, GAO wrote GAO was being kind. However, NASA accepted Lockheed's BAFO as submitted. What About Those O-rings Well, it comes from an offeror's technical proposal. I don't remember which offeror but we were having a discussion with a NASA evaluator. It was a drawing that showed the SRM before it was ignited and then after ignition. After ignition the sides of the SRM expanded and the O-rings were shown holding the gasses within the SRM. I was amazed that the O-rings could withstand that pressure. That drawing remains etched in my brain. GAO's and NASA's Decision After about 6 months, GAO issued its bid protest decision on June 24, 1974. GAO's decision lists 25 bullets. The first one said Within hours of GAO's bid protest decision, NASA chose not to reconsider its selection decision and moved ahead with the Shuttle Program. Copyright © 1998 - 2023 Wifcon.com LLC

See The Kace Company, LLC, v. U. S. and Cellebrite, Inc., No. 23-387C, August 23, 2023.

Using the Solid Rocket Motor requirement from the solicitation that appears in Part 3 of this article, you can see that NASA may have been thinking of Low Rate Initial Production (LRIP) for Increments 1 and 2 and Full Scale Production (FSP) for Increment 3. In FSP, NASA planned 385 Space Shuttle flights between 1981 and 1988 or a little more than 1 Space Shuttle flight per week. Solicitation Increments Years Covered Planned Flights Planned Motors 1+2 1973 - 1981 54 108 3 1981 - 1988 385 770 Total Planned Flights & Motors 439 878 I cannot remember what time of day I placed the Space Shuttle example in my course for GAO Auditors but it always was after a break. I had to prepare myself for it. Perhaps, my voice would break. Perhaps a tear would roll down my cheek while my voice was breaking. It wasn't an act. It's happening now. My first question to the class was: How many flights did NASA plan for the Space Shuttle in each year? The guessing usually started at around 20 but before it reached 50 I would chime in with 50. The second question was: How was the program sold to Congress? It was Cost Per Flight. The more flights you plan, realistic or not, the lower the cost per flight, realistic or not. Of course, the last question was: How do you fix problems on a tight budget? After that, I simply looked into the eyes of the class members. I didn't have to say anything, the answer was obvious. If you want a complete aswer to that question, I suggest reading: Truth, Lies, and O-Rings: Inside the Space Shuttle Challenger Disaster, by Allan J. McDonald and James R. Hansen, Mar 11, 2012. Years Covered Actual Flights Actual Motors 1973 - 1981 2 4 1981 - 1988 25 50 1989 - 1995 46 92 1996 - 2000 28 56 2001 - 2005 13 26 2006 - 2011 21 42 Total Flights & Motors 135 270 Now, take a look at my 2nd table. Let's see how NASA measured up to the solicitation's planned schedule. I'll start with Increments 1 and 2 from the solicitation in the first table. The solicitation planned for 54 flights between 1973 - 1981. During that period, it actually achieved 2 flights. For increment 3 which appears to be full scale production during the years 1981 - 1988, the solicitation planned for 385 flights. During that period, NASA actually achieved 25 flights. We might as well look at the entire program schedule. The solicitation planned for the program to last from 1973 to 1988 (15 years) with 439 flights. It actually lasted between 1974 and 2011 (37) years with 135 flights. The simple facts are that the Space Shuttle Program missed, by a huge margin, the delivery requirements laid out in the solicitation for the SRMs and without the SRMs, the Shuttle was going nowhere. The solicitation requirement was for about 1 flight each week during production for about 7 years. I was going to descibe how the 2,200 tons of the Shuttle was going to be built by different contractors and shipped to Florida for assembly but why belabor the point. The best NASA could do was about 6 or 7 flights a year--not 1 per week. The solicitation was issued in 1973 and since then no agency, no contractor, no country, nor the entire planet Earth has been able to come close to such a requirement for manned space flight. Richard P. Feynman recognized it in 1986 as a bogus requirement. The bogus requirement had its cost per flight purpose needed for Congress but meeting the requirement was an impossibility. Just read the quote I added from the Packard Commission in Part 3. So, how do we judge the Space Shuttle program against a bogus requirement? That too is an impossibility. Decide for yourself. _______________________________________________________________________ The source for the totals in the second table is from Wikepedia.com's List of Space Shuttle Missions Copyright © 1998 - 2023 Wifcon.com LLC

ULTIMA SERVS. CORP., Plaintiff, v. U.S. DEP'T OF AGRIC., et al., Defendants., 2:20-CV-00041-DCLC-CRW, July 19,2023. Court's Conclusion: SBA Releases Interim Guidance to 8(a) Program Participants in Light of Ultima Servs. Corp. v. Dep’t of Ag. ruling.

I've noticed that posters believe it is easier to add raw links to posts instead of descriptive links. Take a look. FAR 13.004 Legal effect of quotations. or https://www.acquisition.gov/far/part-13#FAR_13_004. To add a link all you have to do is add the text 13.004 Legal effect of quotations Highlight the text with your cursor, dump the text into your post, click the "link" icon, dump the https info into the space, and save.

Below is Rule 16. 16. Abbreviations are to be kept to a minimum--preferably none at all--so that others can interpret a post and respond to it intelligently. I've read the Original Post again and it may be that the Procurement Integrated Enterprise Environment (PIEE) and/or the Clause Logic System (CLS) might have a glitch in it.

It looks like the OP got lost. This violates Rule 17! 17. Original posters must not disappear after they post a question. Disappearing makes it impossible to provide clarifications of the original post so that others may respond intelligently. It is normal for the original poster to be asked for clarification. I will lock the Topic shortly.

Joel: Why do you respond with a citation to a federal regulation? I stated the Public Law and where it is in the U. S. Code?

Title 15, Chapter 15A, 637(d)( 8 ) states "The provisions of paragraphs (4), (5), and (6) shall not apply to offerors or bidders who are small business concerns." (4), (5), and (6) are the requirements of P. L 95-507's small business subcontracting program. Let's see if this link works . It works. You just have to scroll down. The purpose of a subcontracting plan is to get money into the pockets of small businesses. Since a small business prime is small, why would anyone think that the small business needed a small business plan. It's idiocy.

On August 10, 2023, I posted a very large (812 pages) final Davis-Bacon Act regulations. The Department of Labor (DOL) posted it in draft format to their site on 8/8/23. You saw the draft format. When DOL does that, usually they publish it in the Federal Register the same day. I searched the Federal Register back a few days and could not find it. I posted the draft version in case I missed something. Why the DOL pulls this nonsense, I don't know. Tonight, the Federal Register notes that it will be published on 8/23/2023. If it is published on that date, the 60-day effective date goes into effect.

Last night, I received a note on this topic. Before that, the power went out here and was restored this morning. This morning, the first thing I did was add Federal Acquisition Circular 2023-05. I have locked this topic until I can look at it.

Go to the second line from the top here and click "Blogs." You will find 5 blogs from 5 of the top contracting law firms in the United States. Every day view the Wifcon.com Home Page. You will find all the FAR and DFARS changes that are published that day. You will also find Agency Supplemets to the FAR System when they are published. It has been for 25 years and still is the fastest way to find those changes.

Deviations From The FAR: Policy And Practice by Donald E. Mansfield

I don't know but I searched for Unmanned and Small Combatants and found this. Check the Executive Director.

The item is from the Navy site. #2 is the way the Navy explained it in the first paragraph of the article which gives the reader some hope. When the Navy wrote the heading of the article it used an abridged version that wasn't as bad as #1. I thought the writer of the article did a decent job of explaining as well as he/she could. PEO is the only acronym that I recognized.

Try this one on: #1 Maybe this makes some sense: #2

Since I visit many sites every night, I've seen this quite a bit from every Administration -- Democrat or Republican-- over the past 25 years. I cannot amend an agency Press Release and that is one of them. Last night, I visited a site that I usually use but couldn't use the entry because it was blaming the Republican Party for something or other--and that was a non-government site. I make judgements on whether content outweighs the political nonsense every night. It's frustrating and it takes me longer to get done. In the questioned news release, I decided that the statistics outweighed the "Biden-Harris Administration" wording. SBA does it a lot, probably more than others. So, when you see an agency press release like that, you can be assured that I saw it before you and made a judgement that the content outweighed the political baloney. In other cases, you won't see an article, because I judged it offensive to a political Party.

I am writing a series of blog entries on my 3 Months in Huntsville, Alabama helping to review the source selection for the Space Shuttle's Solid Rocket Motors. I have finished Part 3 entitled Lockheed Propulsion Company, Thiokol Corporation, B-173677, June 24, 1974 - Part 3: Selling the Program. I should be done Part 4 in a week or two -- depending on how much anger I can hold back while I write Part 4. When you read the excerpt I took from the RFP, you should have an idea of where I am going with it. That requirement will be a highlight of Part 4. I'm not asking you to read the article so it gets views. I'm asking you to read Part 3 and then Part 4 - when its done -- to get you angry and try to prevent it from ever happening again.

Thes are all sustained protests. Systems Plus, Inc.; CANN Softtech, Inc.; Dfuse Technologies, Inc.; Red Oak Solutions, LLC; White Oak Solutions, LLC; ShorePoint, Inc; JSSA, Inc.; Knowledge Management, Inc.; 2050 Technology, LLC; JarWare, LLC; iDoxSolutions, Inc.; cFocus Software, Inc.; SOFITC JV, LLC; Spatial Front, Inc.; ImpactOne JV, LLC; Technology Solutions Provider, Inc.; A1FedImpact, LLC; Saliense Consulting, LLC; Xfinion, Inc.; Hendall, Inc.; Syneren Technologies Corp.; iVision, Inc., d/b/a iVision Consulting, Inc.; CWS FMTI JV, LLC; Astor & Sanders Corporation; Computer World Services Corporation; DevTech Systems, Inc.; Criterion Systems, LLC; Cyquent, Inc.; Audacious Inquiry; ICS-TSPi, LLC; SRG-TSPi, LLC; Horizon Industries, Ltd.; MASAI Technologies Corporation; CTIS, Inc.; JCS Solutions, LLC; TSC-ITG JV, LLC; Karsun Solutions, LLC; Neev-KS Technologies, LLC; ASSYST, Inc.; Platinum Business Services, LLC; IS CIO JV; Inserso Corporation; Credence Dynamo Solutions, LLC; Sky Solutions, LLC; Blue Grove Solutions, LLC; Ennoble First-Macro Solutions, LLC; OCT Consulting, LLC; Swain Online, Inc., d/b/a Swain Techs; Katmai Management Services, LLC; Capital Data Partners JV, LLC; Network Management Resources, Inc., d/b/a NMR Consulting; mPower, Inc.; ADG Tech Consulting, LLC; USmax Corporation; Rip Ripple Effect Communications, Inc., d/b/a Ripple Effect; MicroTechnologies, LLC; A Square Group, LLC; eKuber Ventures, Inc.; The Electric On-Ramp, Inc.; MiamiTSPi, LLC; Decision Point Corporation; AgilisTEK, LLC; OM Partners JV 2, LLC; A-Tek, Inc. B-419956.184, B-419956.185, B-419956.186, B-419956.187, B-419956.188, B-419956.189, B-419956.190, B-419956.191, B-419956.192, B-419956.193, B-419956.194, B-419956.195, B-419956.196, B-419956.197, B-419956.198, B-419956.199, B-419956.201, B-419956.202, B-419956.203,et al, Jun 29, 2023. (July 11, 2023)