bob7947

Patrick:

I did a google search also.  This study dates the DoD WGL system back to 1964 and offers some interesting footnotes.  Pricing of contracts was a big issue in the early 1960s.  Check the table of contents.

Performed under contract with the Air Force by The Rand Corporation:  The Impact of the Weighted Guidelines Profit System on Defense Contract Fees.

The Acquisition Research Program of the Naval Postgraduate School, publishes a review called The Crow's Next which contains A Quarterly Review of Research & Activities.  So far, it appears there are 2 issues.  The 2 issues below include papers and thesis reports.  There are plenty of papers.  Maybe, you can find something of interest.

• Issue 1:  December 1, 2020.
• Issue 2:  April 2021.

Ahh, our 3 central suppliers with Moe sitting this one out.  Curly and Larry got entangled with two forums for protest--an administrative body (Abbot) and the court system (Costello).  Of course, that's not enough.  Abbot's second-guessers who are called evaluators stirred things up too.

On p. 3, the judge described an agency action as:  That request added bedlam to already existing chaos.

Judge David A. Tapp, Court of Federal Claims.

Quote

If there can be a literary analogy to this government procurement, it would be Longfellow’s The Wreck of the Hesperus which chronicles a prideful sea captain’s avoidable downfall on the rocks of Norman’s Woe.  Like the experienced crew of the Hesperus, agency personnel warned of the perils of a plotted course and when ignored, “[d]own came the storm and smote amain, the vessel in her strength” leaving behind only a “dreary wreck” awash upon the shoals.

Vern:

I agree that OFPP is dead but it still has it's law and things that the Administrator is charged with doing.

I think it's good that you added an item that shows what OFPP might have been.  Since few of us were around for the issuance of the Commission on Government Procurement Report, that report listed OFPP as its first recommendation.  If anyone wants to look at the way contracting was in 1972, recommendations to improve it then, and think about where contracting is now, the Commission report is at the bottom of this page.

PS:  I don't know if it is real or not but I dreamt there is a grinning person at the front door of OMB with a stamp that is pressed on the hand of every new Administrator of OFPP when they first enter OMB.  The stamp reads "Former Administrator of OFPP" and is shaped like a ticket.

Yesterday, there was an online discussion on Green Public Procurement.  Steve Schooner was a participant and his comments on the subject may interest some.  He speaks last and his comments begin at 1:17.37.  He also mentioned some sites that you could use if you have an interest.  I added links to them.

Green Procurement Compilation.  (GSA)

Comprehensive Procurement Guideline (CPG) Program.  (EPA)

LEED rating system.  (USGBC)

Former political appointee at the Department of Housing and Urban Development to head OFPP.

Vern:

It took me a short period of time to realize the proposed legislation was less than a joke.  In looking at the OFPP Act a few minutes ago, I happened upon a 1979 Testimony from the Deputy Comptroller General on GAO's initial look at the accomplishments of OFPP.  The testimony should explain what it was about.

When I read the following bill I wondered about 2 things.

1. Why the Director of the Office of Management and Budget assigned with getting it done?  Maybe someone hopes that OMB can find OFPP.
2. Why no DoD?  DoD is purposely left out.  

Artificial Intelligence Training for the Acquisition Workforce Act or the AI Training Act.

Press Release:  Legislation Would Require Training for Federal Employees Who Procure and Manage Artificial Intelligence Technology to Ensure It Is Used Safely and Ethically.

I assume this is only window dressing for the Congressional August recess.

Mike:

Thank You.  Skunk Works is good.  Kelly Johnson's book Kelly is worth reading because he wrote it.  I don't know how much longer any A-12 pilots will remain.  Frank Murray, the A-12 pilot who flew the final flight of an A-12 from Area 51 to Lokkheed's Palmdale site, gives a good presentation in The Oxcart Story - Frank Murray.

Amen!

The discussion forum was updated last night.  It looks like it added some silly features.  I need to look what happened and see what I can discard.  It lookes like all numbers of posts were deleted.

Vern:

When I was in GAO's Preocurement and Systems Acquisition Division (General Procurement Group) in the 1970s, I was told to do research on the 4-Step procedure in DoD.  The Navy keeps entering my mind and a blue transmittal page possibly covering a DoD report on the subject is what I was looking at.  I know that it is not much but I am not aware that the General Procurement Group--the group who would have done something--did anything on the subject after that.  I seem to remember that someone mentioned the 4-step was similar to NASA.

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

OK, I wondered what happened to it.  So, I just checked and found a 1980 article in the American Bar Journal.  Apparently, DoD adopted it.

Thanks.  Yes, today was the first time I've seen that terminology and it is one of the cases on the Home Page.  Whoever reads this will now hear of it too.  I added a link to the opinion in your Two Rivers citation.

Have you ever experienced the “mirror image rule?"

H2H:

I'm just advocating getting rid of some layers of review.  In the case of a dispute the Boards begin the process.  For example, lets' take a civilian dispute from the Treasury--PACIFIC COAST COMMUNITY SERVICES, INC..

But first, let's look at some congressional perfections that made it into law.

Quote

§7104. Contractor's right of appeal from decision by contracting officer

(a) Appeal to Agency Board.—A contractor, within 90 days from the date of receipt of a contracting officer's decision under section 7103 of this title, may appeal the decision to an agency board as provided in section 7105 of this title.

(b) Bringing an Action De Novo in Federal Court.—

(1) In general.—Except as provided in paragraph (2), and in lieu of appealing the decision of a contracting officer under section 7103 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary.

Now, the law provides a choice of venues--a Board or the Court.  PACIFIC COAST COMMUNITY SERVICES, INC. went to the the Gourt of Federal Claims.  After the dispute rolled around the Court trying to find a judge, the Court of Federal Claims issued an opinion on 10/1/19.   Of course, the contractor filed an appeal to the Court of Appeals for the Federal Circuit.  The appeals court issued its opinion/decision of April 30, 2021.  We can safely say that the case rolled around the court system for over two years.

Whenever congress says something like

Quote

someone or something should—

(1) to the fullest extent practicable provide informal, expeditious, and inexpensive resolution of disputes;

and then allows the issue to go to court, they're just kidding.

Now, let's mention a protest that recently made the news and now is in the court system.   Oracle America, Inc., B-416657, B-416657.2, B-416657.3, B-416657.4, Nov 14, 2018. DoD is almost ready the throw the JEDI in the trash.

My presentation has flaws but an unhappy bidder, offeror or contractor can get more than one bite at the apple.  It can devour the orchard.  I believe the Courts should be eliminated fron the protest and dispute process.  A bidder or offeror should get one shot at a protest and that ends with a GAO decision.  Likewise, a contractor  should get one shot at resolving a dispute and that ends with a board of contract appeals.  It will save bidders, offerors, contractors and the government time and money.

32 minutes ago, here_2_help said:

After some reflection I am now of the opinion that no significant acquisition reform can or will come about unless there is first significant statutory reform and significant judicial reform. Too many bureaucratic rules are driven by statutes. (Vern already noted two statutes that he believes should go. To his list I would add the ADA.) Further, recent decisions at the ASBCA and Court of Federal Claims have led me to think that those forums are no longer serving their intended purposes. I would replace them with a Court of Chancery equivalent that is empowered to hear disputes without regard to the protections provided by sovereign immunity, which I believe to be a concept that has no place in American democracy.

I wrote a small piece many years ago about creating a House and Senate committee to straighten out contracting legislation and then provide them only with oversight of the contracting process.  It could be done but it has absolutely no chance.

What is possible but highly unlikely is eliminating the courts from the protest and dispute system.  I would limit the hearing of protests to the Comptroller General and disputes to an entity similar to the boards.  Once you involve the courts you open the process to appeals. No appeals, once and done!

Comptroller General Reports to Congress on Audits of Defense Contracts:  

The above is the online hearings from Google.   I don't know how long ot runs but that is it.  It was several days long.

I tried it and was able to get to 70 pages so maybe all 1,000 pages are available.

Yes it is Joel.  I have a hard cover book by a GAO historian that includes the Hollifield hearings which were held in 1965.  I looked at the book a bit.  Hollifield's Hearing was an ambush.  At the end of the hearing, 2 GAO individuals had a chance to speak and be criticized.  Before them was a small army of people from DoD and DoD contractors that aired their complaints against GAO.  The 2 GAO individuals tried to provide answers at the table but after a while, I'm sure they realized they were only there to take a beating. 

The real problem may have been the writing of the Hollifield report on the hearing.  GAO claimed that the report was filled with errors and falsehoods.  It probably was.  That's all part of an ambush. 

I joined the General Procurement Group of the Procurement and Systems Acquisition Division in 1972 after I completed my training assignemnts in GAO's Civil Division.  The General Procurement Group did contract pricing reports.

Before the Hollifield hearing the contract pricing reports were done and then dent sent to the Department of Justice for action with contractors names.  That built up a lot of resentment from contractors.

After Hollified, GAO's pricing reports, if they found anything, were sent to DoD with a recommendation that the contracting officer take action, if he/she sees fit.  If that is not exactly the way we did it, it is close.

I remember asking why were we doing pricing reports.  The answer was so they know we were still in that business.  I think the pricing reports ended in the 1970s.

Someone wrote that they believe there was a violation of forum rules.  I will lock this topic until I can review the topic posts.  This will take time.  

When I was doing my research in GAO's microfiche room that I mentioned above, another name kept popping up.  It was Edward Hébert.  He is mentioned in Robert Keller's statement that I linked above.  That statement is why I remembered him.

I had pounds and pounds of microfiche paper to support my research on 87-653 but it no longer exists.  I had the same for FPASA and that is gone too.

On 5/19/2021 at 12:56 AM, joel hoffman said:

“Former Congressman Chet Holifield, working with the House Armed Services Committee, was instrumental in enacting the Truth-In-Negotiations Act of 1962. I assisted him in that venture. Today there are still contractors that are not in compliance with the act”...

Joel:

I did extensive research on P. L. 87-653 and even remember Carl Vinson getting one of those new fangled color TVs on the floor of the House for his 50th anniversary serving in the House.  I think that might have been before the transistor.  I read the article from the New York Review and I was surprised at the quote.  Rickover may have attended a hearing or so but he was not a significant factor in P. L. 87-653.  I also read interviews with Chet Hollifield and he showed little interest in P. L. 87-653 or its passage.  Even when he was specifically asked about it. 

During 1965, Hollifield was busy with the Hollifield Hearings during which he beat GAO up so that it would curtail its contract pricing audits and not request refunds from contractors that overpriced contracts.  There was some talk about the Hollifield Hearings among the press such as:  Drew Pearson wrote that Hollifield was "strangely found on the side of luxurious shuffleboard courts, table tennis facilities, a scenic mall, out-door dining rooms for [a federal contractor] all paid for by the taxpayer."

The driving force behind P. L. 87-653 was Carl Vinson, not Chet Hollifield.  Maybe that is why Carl Vinson has his own aircraft carrier.  I don't know.  I believe the hearings discussing the fixed-price incentive contracts that were involved in P. L. 87-653 were televised.  The contracts may have been with Ford or GM.  I can't remember that.  In the 1970's, Hollifield did sponsor and was the Vice Chair of The Commission on Government Procurement.

Vern correctly mentioned that GAO played a sifnificant role in P. L 87-653.  Here is a prepared statement by GAO's General Councel in 1968.

On 5/13/2021 at 9:26 AM, C Culham said:

My concern is how much would stuff like this increase?  https://www.justice.gov/usao-edwa/pr/clarkston-business-owner-and-federal-government-contracting-officer-indicted-bribery

Check the right-hand column of tomorrow's Home Page.  It will be posted around 8 PM Eastern.  I rarely add fraud against health care programs, the plague programs, etc.  

However, I think something can be done to reduce all the baloney in law and regulations.

On 5/1/2021 at 11:26 PM, formerfed said:

But the most satisfying experience was browsing through GAO decisions.  That was when GSA had a great legal library.  I could check out Comptroller General Decisions, both hard bound and monthly published decisions, and read at my desk.  I spent hours reading through those and tried to anticipate the outcome and the rational.  I did this for a couple years and always anticipated the next batch of new GAO and BCA decisions.

There was a time when I battled the bid protest attorneys in the Law Library for a desk.  Then the attorneys got an online legal service--can't remember the name--and the books slept.  One could read Attorney General (AG) decisions too.  GAO acquired its AG books from one of the agencies within the Treasury Department.  They were first editions.  I told the Librarians they had those books there and they gave me a blank stare.

With a "b" number, I could go to the librarians desk and get all the documents associated with that decision.  I could see from 1st draft to final decision and why the final differed from the first cut.  Same think with legislative histories of Public Laws.  I asked for the legislative history on FPASA and they brought the documents in folders in a shopping cart.  There was a time when I knew everything about FPASA, even when DoD was cutting GSA's legs out from under it in 1949-or so.  (Think Jack Brooks and OFPP.)

Best of all was the "microfiche room."  If you could find an open machine that worked, you had access to the gray boxes of microfiche.  All hearings, House and Senate reports, etc. that an inquiring mind might want.  It was a historical heaven at one's fingertips.  After the attorneys had access to lexis/nexis, or something like that, I was one of the few visitors to the Law Library.  But that was the 20th century.

Vern, Steve Schooner mentioned that he just received a shipment of this edition.  I took the liberty of posting this.  Is that OK?