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This material from The Nash & Cibinic Report has been reproduced with the permission of the publisher, Thomson Reuters. Further use without the permission of the publisher is prohibited. For additional information or to subscribe, call 1-800-344-5009 or visit http://legalsolutions.thomsonreuters.com. The Nash & Cibinic Report is now available on Westlaw. Visit westlaw.com. On January 11, 2017, the GAO published its decision in the matter of Sevatec, Inc.; InfoReliance Corporation; Enterprise Information Services, Inc.; Buchanan & Edwards, Inc., B-413559.3; B-413559.4; B-413559.6; B-413559.7, January 11, 2017. The attached article by Ralph Nash and Vern Edwards from the May 2016 issue of The Nash & Cibinic Report lays out the issues and the stakes. This is a decision of great potential significance, which offers ample opportunity for beneficial innovation in source selection. The article and the decision merit close attention by all professionals engaged in the conduct of source selections under the Competition in Contracting Act and FAR Part 15. Vern Edwards will soon post a blog entry to explain the decision's significance and potential.

I posted it because GAO said: You can view the excerpt here and download the entire protest at the end pf the excerpt.

According to the facts in my entry: After Rule signed the mod at 10 a. m. on October 8, 1976, was the following Before he signed the contract on October 8, 1976 Rule was a distinguished attorney and he knew that he was negotiating to satisfy a court order. He knew that meant his negotiation had to be approved by the U. S. Department of Justice. Why did he sign that modification is known only by him but he explains it in his sworn deposition, an excerpt of which explains his thinking, and which I have included above. Going back to the original signing of the contract on June 25, 1970 for the Virginia class DLGN's which became CGNs, I remember reading a memo from Secretary of Defense Melvin Laird to the Navy that they could only buy 3 ships--not 5. To get around that, the Navy had the first 3 ships as a base and options to buy two more ships, one of which was the CGN 41. I have always been suspicious about the pricing of the ships but I did not have the time nor the authorization to resolve my suspicions. I cannot let Rule off the hook for that contract awarded in 1970 because he was in NAVMAT's Procurement Control and Clearance Division at that time. I assume he was its Director and his office had to approve the original award which it must have done. On December 21, 1971, mod. 7 was added which authorized construction of the first 3 ships and set the FPIF pricing arrangement for the CGN 41 option. It had an 80/20 share ratio. On February 1, 1973, mod 18 was awarded to extend the date to exercise the option for the CGN-41 by 2 years. That mod. increased the pricing structure to the one that Rule agreed to in his 1976 negotiation. Additionally, the share ratio was now 95/5 and 90/10. That gives you an idea of expected final pricing for the CGN-41 even though it was stated that final pricing somewhere in the future was subject to downward revision. It was a bogus structure in 1973, if not 1970. Mod 18 also left the final resolution for escalation and several other things somewhere down the road. By the time Rule was handed the negotiation of mod 31 by Clements in 1976, the Navy and Rule were negotiating, not at target cost, but at ceiling price. Remember, that at the same time there were claims on the CGN-38, 39, and 40 which were eventually negotiated for roughly 20 cents on the claimed dollar. The escaIation provision left open by mod. 18 was finally agreed upon--3 years later. I would not have approved Rule's negotiation myself because of the bogus pricing structure but that was the state of Navy shipbuilding back then. You can get a flavor of the times by carefully reading the original entry. Rickover was forced to retire in January 1982. Rule lived a building or two away from NAVMAT in the Crystal Plaza complex and died in August 1982. Proxmire had hair plants placed in his head (was still bald) and continued to run down Mass. Ave to work. Once in a while, I acknowledged him. Shipbuilding claims continued.

h_2_help: I realized that last night. I have to add links and am waiting for a P. L. to be assigned. It should be assigned shortly.

Did you look in TITLE IX—DEPARTMENT OF DEFENSE ORGANIZATION AND MANAGEMENT

All: Don submitted this poll over the holidays. I'm bumping it up today to get him as many votes as possible.

Leo: Thank you. There was a modification 18 to that contract that set a new pricing arrangement for the CGN-41 part of the FPIF contract. The amounts theoretically could have been negotiated lower in Rule's modification 31 but that was not realistic. Rule accepted the amounts in modification 18 because the Navy expected Newport News to hit the ceiling price. So, the Navy didn't expect to reach target cost, it expected to hit ceiling price. Rule negotiated increases in escalation, energy growth, and fringe benefits. If the amounts were reached, it would have increased those costs by about $40 million. The CGN-41 was one of the Virginia class of nuclear cruisers--it was preceded by CGNs 38, 39, and 40. The CGN-42, to be built after the CGN-41 was never built. The overall contract was awarded in 1970 for the 38, 39, and 40. The 41 and 42 were options. This was the energy crisis era and I seem to remember a period of increasing inflation. There was about $800 million in claims against the 38, 39, and 40 in addition to some nuclear carriers and subs. The Navy and Newport News settled for about $200 million. FBI investigations continued into the 1980s on claims submitted by Newport News. In 1984, a congressional hearing was held, and by that time, Justice had not taken Newport News to court. The Justice Department did not think they had a winnable case and part of its concern was that Newport News would use Rickover as part of their defense. Another concern was the statute of limitations. Sadly, the CGN 41, the USS Arkansas, was scrapped after 18 years because the refueling of the nuclear reactors was deemed to be too expensive. The entire Virginia class suffered the same fate. In addition to the refueling costs, they became victims of the peace dividend. There was other armament concerns also. Several years after sitting with Rule in that conference room, I met a fellow that had worked for Newport News but at that time he was working with us. He gave me a plastic mug with a picture of the CGN-41 on it. I still have it.

In early 1977, Gordon Wade Rule (Rule) sat in a chair in a corner of a conference room at the Naval Material Command reading a document that I had prepared about his negotiations on the CGN-41, a nuclear-powered guided missile cruiser. Days earlier, I was among a group that was briefed by a staff member of Admiral Hyman Rickover (Rickover), the Director of the Naval Nuclear Propulsion Program. Although, the briefing was supposed to be about the CGN-41 negotiation, we were treated to a 3-hour lecture on how the Navy's shipbuilders were trying to "pin the rose" on Rickover. In this case, pinning the rose had nothing to do with the shipbuilders asking the Admiral to a prom. When I began writing this blog entry, I had planned to include only the work I had done decades ago for the Chairman, House Committee on Armed Services. That work involved Rule's negotiation of Modification 31 to the contract that included the CGN-41, the eventual USS Arkansas. I wanted you to figure out if the modification that Rule signed was done in a manner that would allow it to survive a court test. It took 2 courts to decide that question so it wasn't as easy as it sounded. Unfortunately I read too much surrounding material and I realized that I was taking Rule's actions out of the context in which they happened back in the 1970s. So, I added a bit more information. You will see Rule as the contracting officer, Rickover as a program officer interfering with the contracting officer, Senator William Proxmire apparently acting for Rickover and himself, and Deputy Secretary of Defense William P. Clements, Jr. (Clements) trying to resolve the shipbuilding claims problem in any manner he could. You cannot choose sides on this one. All characters, including government agencies and shipbuilders, were trying to manipulate and influence anyone that became involved with the CGN-41. It seemed as if sides were drawn by identifying the enemy of an individual's enemy. A Brief Introduction to the Shipbuilding Claims Era In the early 1970s, cost overruns and shipbuilders' claims had become a major problem. By 1976, it had reached epidemic proportions with $1.9 billion in shipbuilder claims. The shipbuilders, the Navy, the Department of Justice, and Rickover were in a war. In the case of the CGN-41, Newport News Shipbuilding and Drydock Company was the industry player. Clements wanted to settle the ship claims problem with the use of P. L. 85-804. A June 21, 1976, Business Week article explains his early effort. The excerpt below is a quote from the article entitled: The Shipbuilders Balk at 40 Cents on the Dollar. The article explained that Clements had planned to settle $1.9 billion of shipbuilding claims against the Navy for "between $500 million and $700 million" but that plan fell fiat with the Navy's shipbuilders. He explained that "the shipyards are giving me trouble." The article further described: After failing to reach a settlement himself, Clements called Navy management to his office for a meeting of the status of shipbuilding claims. Nothing had been accomplished by them either. He then focused on the CGN-41. The work on this ship had been stopped by Newport News because of issues it was having with the Navy. The contract was in court and work had started again under the condition that the Navy negotiated in good faith with Newport News to resolve the issues. The court's time limit for good faith negotiations was running out and something had to be done. Since the CGN-41 contract was in court, the Department of Justice was required to play a part in the review of any settlement proposed to the court. This is where our story begins. I have added the dates on which the actions occurred so that you can follow. All facts are based on documents that I had reviewed in the 1970s or documents that I recently reviewed. I needed to limit the length of this entry so I added enough information to give you a flavor of the times. Sometime in the future, I may write a larger article. Rule was appointed as a special contracting officer on the CGN-41 to resolve the issues that the Navy and the Secretary of Defense could not accomplish. Undoubtedly he knew he was heading into a mighty storm that might harm him. Contract Modification P00031 To CGN-41: Chronology of Events July 13, 1976: Clements held a meeting to discuss Navy shipbuilding claims. Among those in attendance were: Deputy Secretary of Defense (Clements) Consultant to the Deputy Secretary of Defense Assistant Secretary of the Navy (Installations and Logistics) (ASN (I & L)) Chief of the Naval Material Command (NAVMAT) Vice-Chief of the Naval Material Command (NAVSEA) General Counsel of the Navy, and Gordon Rule, Director, Procurement Control and Clearance Division, Naval Material Command. (Rule) In regard to the Newport News claims, a member of the meeting quoted Clements as saying that he was "irrevocably committed to solving this problem; unlike Admiral Rickover." Clements then asked the Navy officials why they had not reformed the contract, indicating that if they would not, he would. He then stated that he wanted to see four changes incorporated in the CGN-41 contract: (1) a new escalation clause; (2) a new "changes" clause; (3) a new ceiling price; and (4) a new delivery date. (emphasis added) During the meeting it was agreed that Rule would become negotiator for the CGN-41. He was to report directly to the Chief, NAVMAT and the Vice Chief, NAVMAT was to meet with Clements each day at 9:15 a.m to report on the progress of the negotiation. July 14, 1976: Rule telephoned Newport News to explain that he had been assigned principal negotiator on the CGN-41 and requested a meeting. July 15, 1976: Newport News was contacted by a consultant to Clements who explained Rule's authority. Rule and Newport News held their first meeting. July 16, 1976: The Assistant Secretary of the Navy (Installations and Logistics) wrote to the Chief, NAVMAT informing him that the Chief would be responsible for the direct discussions between Rule and Newport News. Rule would be the principal negotiator and Rule would be assisted by NAVSEA and the Navy General Counsel, as required. July 16, 1976: Rule sent a memo to Clements describing his first meeting with Newport News. As a note, he mentioned that he intentionally did not contact the Navy's Supervisor of Shipbuiliding, Conversion and Repair (SUPSHIPS), Newport News. July 19, 1976: Rule sent a memo to the Deputy Commander for Contracts, NAVSEA asking for brief descriptions of what the Navy considered as key issues for negotiation and the Navy's negotiating position so he could develop his own negotiation position. July 28, 1976: The Vice Chief, NAVMAT and a consultant to Clements held discussions with Newport News. Areas discussed were: when the CGN 41 problems would be solved, ceiling price, and escalation provisions. August 10, 1976: Rule telephoned Newport News and requested a meeting in Washington on August 12,1976. August 12, 1976: During a meeting in Washington between Rule and Newport News, Newport News left a general outline for negotiations. August 12 and 13, 1976: The Vice Chief, NAVMAT asked Rule about the August 12 meeting so he could inform Clements. Rule explained that Newport News had delivered a proposal and he did not approve of it. August 17, 1976: Rule telephoned Newport News and requested a negotiating session to be held on August 20, 1976. August 19, 1976: The Deputy Chief of Naval Material (Procurement and Production) issued Rule an appointment as Contracting Officer with "unlimited authority with respect to negotiations with Newport News." August 20, 1976: Negotiations were held between Rule and Newport News. August 23, 1976: The Vice Chief, NAVMAT and Rule met with Clements to brief him on the August 20th negotiations. According to Rule, Clements' comment on the negotiations was "fine." After the meeting with Clements, Rule received a note from the Chief, NAVMAT to meet him in the Office of the Assistant Secretary of the Navy (Installations and Logistics). Among those attending were: Assistant Secretary of the Navy (Installations and Logistics), Chief, NAVMAT, Vice Chief, NAVMAT, Rule, Director, Procurement Control and Clearance Division, Naval Material Command, Commander, NAVSEA, Deputy Commander for Contracts, NAVSEA, At this meeting, the Chief, NAVMAT ordered Rule to describe the results of the August 20 negotiations. August 24, 1976: Rickover wrote to the Chief, NAVMAT that he had heard a rumor of a settlement on the CGN-41 between Rule and Newport News. Rickover commented point-by-point about the rumored settlement and said such a settlement "would show that the Government will not require Newport News to honor its contracts." Rickover recommended that any August 24, 1976: Senator William Proxmire wrote to the Attorney General, Department of Justice expressing concerns about Gordon Rule's views on the CGN-41 negotiations and telling the Attorney General: August 25, 1976: Newport News telephoned Clements and read a prepared press release. The consultant to Clements said he and Clements approved of the press release, an excerpt of which stated: "The parties have agreed to sign a definitive contractual document embodying the negotiated agreement for the construction of the CGN-41." Later that day, the Assistant Secretary of the Navy (Installation and Logistics) telephoned Newport News, informed them that he was perturbed by the Newport News press release and stated that the Navy would issue its own press release stating that agreement had been reached in principle but that the matter was to be reviewed by higher authority. On this same date the Navy issued a press release explaining an "agreement in principle" was being drafted for review and approval. (Emphasis added) August 26, 1976: The Chief, NAVMAT sent Rickover a response to his August 24, 2016 letter stating: The Chief, NAVMAT further wrote: For reasons such as this, you must stand apart from these negotiations unless the technical areas regarding naval nuclear reactors become involved. August 27, 1976: Rickover responded to the Chief's, August 26, 1976 letter to him. In response to the wide distribution he used for his letter of August 24, 1976, Rickover explained that: He used the same distribution list for this 6-page letter as he did in his August 24, 1976 letter. August 30, 1976: Newport News met with Rule in Washington and delivered the first draft of Modification P00031. The Chief, NAVMAT sent a letter to Rule explaining that, prior to a binding agreement on the CGN-41, the elements of the agreement must be submitted to the Chief, NAVMAT for review and approval. The review was to be conducted by the Vice Chief, NAVMAT, the Deputy Chief, NAVMAT (Procurement and Production), the NAVSEA Deputy Commander for Contracts; and the General Counsel for the Navy. Mr. Rule was to provide the proposed contract modification, the business clearance justifications, and other supporting papers for review prior to signature by the contracting officer. Gordon Rule forwarded a draft memorandum to the Chief, Naval Material that summarized his negotiations with Newport News. August 31, 1976: The General Counsel of the Navy noted the Rule draft memorandum and told Rule of the General Counsel's responsibility to review the summary of negotiations. Additionally, the General Counsel requested more information to support Rules' summary. September 1, 1976: Rule sent a summary of his negotiations to the Chief, NAVMAT. September 3 1976: In response to the August 31, 1976 memo from the Navy General Counsel, Rule sent him additional information supporting his summary of negotiations. He also provided a copy of the first draft of Modification P00031. September 14, 1976: Members of Rule's and Newport News negotiating teams and DCAA auditors met in Washington to discuss provisions in the first draft of Modification P00031. DCAA was asked to review certain provisions of the proposed modification. September 16, 1976: The Attorney General, Department of Justice, responded to Senator Proxmire's August 24th letter by writing: September 20, 1976: NAVSEA's Deputy Commander for Contracts and a member of the "review team" submitted his analysis of the first draft to the Vice Chief, NAVMAT. This analysis was not made available to Rule. September 24, 1976: DCAA submitted its analysis of certain provisions of the first draft to a member of Rule's negotiating team. September 27, 1976: Newport News delivered a second draft of the modification to Rule and Rule requested DCAA to review the draft. [September 28, 1976: Clements wrote a letter to the Attorney General, Department of Justice, commenting on the August 24 letter of Senator Proxmire. In regard to Rule, he wrote: In regard to the Department of Justice's review of the CGN-41 negotiation, he said: "Let me assure you that we in DoD have no intention to by-pass or withhold from your department any information which you determine that your department needs in connection with legal proceedings under the court order." September 28, 1976: DCAA submitted its analysis of the second draft to Rule. October 4, 1976: NAVSEA submitted its estimate of the cost of the draft modification. Rule rejected the NAVSEA estimate. October 5, 1976: Rule submitted a memorandum to the Chief, NAVMAT for his approval. It included the estimated dollar impact of his negotiated settlement. For those in contracting, it would be similar to a negotiator's memorandum. The Navy General Counsel sent its analysis of the information supplied by Rule to the Attorney General. In the memorandum, Rule noted that a member of his negotiating team could not complete an analysis he requested because of interference from Rickover and his staff. However, he was able to devise a workaround to complete his cost estimate of the modification for the Chief's review and approval. October 7, 1976: Newport News carried a third draft of the proposed modification to Rule. The cover letter from Newport News attached to the modification said "I have executed the enclosed modification on behalf of the company and request you immediately return a fully executed copy." Rule took a copy of the cover letter to the Chief and Vice Chief, NAVMAT in the afternoon. He returned to his office and received a letter from the Chief, NAVMAT telling him that neither he nor his review group had a copy of the proposed modification that accurately reflected the results of Rule's efforts. Final review had not been completed and the proposed modification could not be consummated before the review was done. According to Rule, he thought about the CGN-41 negotiation effort all afternoon after he met with the Chief and Vice-Chief, NAVMAT. He explained in a deposition that he: October 8, 1976: The Vice Chief, NAVMAT called Rule into his office at 8:22 a. m. He gave Rule a letter dated October 7, 1976 that explained that he did not have authority to sign the modification. Rule explained he had signed it and the Vice Chief requested Rule to give him all signed copies. Rule refused but said he would give them to Clements. The Vice Chief then left for his 9:15 am meeting with Clements. Rule returned to his office dictated a transmittal letter imposing two conditions upon the modification and gave Newport News a copy. The Vice Chief, NAVMAT called Rule into his office and told him that the Undersecretary of the Navy would keep all executed copies of the modification but Rule told him that he already had signed it. He returned to his office, signed the transmittal sheet, and handed it to Newport News at 10 A. M. Shortly afterward at 11:50 a. m., Rule was notified that his appointment as contracting officer was rescinded. March 8, 1977: The District Court for the Eastern District of Virginia ruled that: February 27, 1978: The United States Court of Appeals, Fourth Circuit ruled that

Joel: I thought I saw it. Then I couldn't find it. Now, I am waiting to compete the analysis.

H_2_H: There are really 2 sections: Section 836 Contract Closeout Authority and Section 837 Closeout of Old Department of the Navy Contracts. Section 837, I believe, is specific to either General Dynamics (Electric Boat) or Newport News. I originally posted a link to Electric Boat but I noticed from a 1984 hearing that Newport News was building nuclear submarines at that time. Section 836 covers defense contracts with defense contractors. The years that covered contracts were awarded is different. Section 837 probably involves contracts involved in the shipbuilding claims era. Both sections are reminiscent of some language from P. L. 85-804. Maybe the writers in the Senate were aware of it.

Take a look at Section 837 and the dates. Some of you may understand what that was about.

I have added Wifcon.com's 17th Annual Analysis of the National Defense Authorization Act for Fiscal Year 2017. So far, I have limited it to Title VIII because that is the annual contracting Title and because it is so long and took so much time to set up. I still have to clean some things up on it but I'm just trying to finish.

The NDAA was signed yesterday. The White House--Signed Legislation.

At the end of calendar year 2014, I analyzed the number of Federal Acquisition Circulars (FACs) issued by the FAR Council, by month, from 2014 through 2000. I had mentally noticed that the Council had a penchant for issuing FACs in December so I wanted to see if the actual numbers matched what I thought was happening. The numbers did! My mind was still working. So this year, I updated my 2014 analysis. Well, in 2016 and 2015, the Council was quite merry in December. They issued 2 FACs during December in each of those years. Since the beginning of 2000, or for the past 17 years, there have been 133 FACs issued. They are grouped by the 12 months of the year below. (By the way, in 2014 I typed the incorrect number. I typed 188 when the actual number was 118.) January -- 11 FACs February -- 4 FACs March -- 16 FACs April -- 13 FACs May -- 10 FACs June -- 11 FACs July -- 14 FACs August -- 7 FACs September -- 9 FACs October -- 7 FACs November -- 11 FACs, and December -- 20 FACs. As you can see, the FAR Council celebrates the December holidays by issuing FACs. The largest number of FACs--20--have been issued in December. Additionally, the FAR Council has issued FACs in 14 of the 17 Decembers. The only years that they missed were 2011, 2008, and 2005. (I just noticed that the years they missed were three years apart. Obviously, a government conspiracy.) In those 3 years, only 6 FACs were issued--the lowest number of FACs issued in any year. Perhaps, they just ran out of gas in those years. Getting back to December, in 6 of the 17 years, including 2016 and 2015, the Council issued 2 FACs in December. Again, that is the most for any month. What can we conclude? How about this. Since the Council spreads holiday cheer in the only way it can during December by issuing FACs, they just love all of you. And guess what. There are still several business days left in 2016 and the Council has never issued 3 FAC's in any December, or for that matter, in any month. If they feel extra cheery this year, maybe they will give you a third to ponder.

Good tidings we bring for you and your kin Peace!

That is beyond the Human Statute of Limitations.

Vern: I just completed a search for latest action and sent to President at congress.gov. The NDAA and H.R.5798 a bill To designate the facility of the United States Postal Service located at 1101 Davis Street in Evanston, Illinois, as the "Abner J. Mikva Post Office Building" are the only two bills that were sent to the President and not yet signed. Neither one has yet to appear as pending legislation at the White House. They will appear when we have given up looking.

Vern: The last bills were signed on December 16, 2016. It takes a few days for the White House to update the legislation page. I remember waiting for last year's NDAA and it seemed to take forever. Give it a few more days. Maybe they are waiting for the Grinch to deliver it. So far, it does look like the conferees were amending the original legislation quite a bit during the conference. I've seen only one section that applies to other than DoD so far. I think we are looking at, not only a hefty NDAA, but a historic piece of garbage. There is a lot that affects systems acquisition. However, a good deal affects procurement. Title VIII has about 100 sections and some of them are quite long. If I ever get through Title VIII, I hope to skim the other sections. I know DOE has some goodies and probably the Coast Guard too in other Titles.

Vern: Let me look.

Vern: Since this section applies to Title 10, the Civilian Agency Acquisition Council may tell the Defense Acquisition Regulations Council: You go your way and I'll go mine. They might say that quite a bit this year. Whatever happens, It will take time to sort out the NDAA for FY 2017. I'm still working on Title VIII and hope to finish by the end of the week.

I have no idea why the number of sustained protests more than doubled for FY 2016 (139) over FY 2015 (68). However, the top 2 of the most prevalent reasons that GAO lists must have helped: unreasonable technical evaluation climbed to the number 1 issue in FY 2016 from number 5 in FY 2015. This type of protest must have climbed significantly since the overall protest numbers doubled and it grew as a problem. unreasonable past performance evaluation stayed at the number 2 issue for FY 2016 and FY 2015. With the number of protests doubling, it is reasonable to assume that this type of protest grew significantly also.

The Competition in Contracting Act of 1984 requires the Government Accountability Office (GA0) to report to the U. S. Congress annually when government agencies fail to fully implement its bid protest recommendations. GAO has posted these reports on its website since fiscal year (FY) 1995. Initially, these reports provided little information but by FY 2004, GAO published its "Bid Protest Statistics" covering FY 2004 through 2001. I have added every one of these reports to the fiscal year numbers at the top of the bid protest statistics. Beginning in its report for FY 2013, GAO began listing its "most prevalent reasons for sustaining protests" during the FY. This has continued for FY 2014, FY 2015, and FY 2016. Although the information provided does not include cases where an agency took corrective action before a formal sustained decision was reached, it does provided information on 366 sustained decisions. In that sense, it may provide some help whether you are trying to prevent a protest or whether you may protest a procurement. For FY 2016, there were 139 sustained protests compared to the 227 protests for the previous 3 Fiscal Years. Since GAO does not provide the number of sustained protests by most prevalent causes, I have ranked the most prevalent causes considering the number of sustained protests during a year. For example, I divided the number of protests in each of FY 2016, 2015, 2014, and 2013 by 1. That resulted in the following factors: FY 2016 (139/100=1.39) FY 2015 (68/100=.68) FY 2014 (72/100=.72) FY 2013 (82/100=.82) I then multiplied each factor by each most prevalent reason in each Fiscal Year using GAO's ranking. Then I added my raw rankings of individual reasons for each Fiscal Year to come up with my final numerical ranking. Yes, it's somewhat crude but all that GAO provides is general information. Below is my ranking of the most prevalent reasons for sustained protests listed by GAO for FY 2016 through FY 2013 with my numerical ranking: failure to follow the evaluation criteria (Numerical Ranking of 8.4 and it was listed 3rd in FY 2015 and 1st in FYs 2014 and 2013) unreasonable technical evaluation (Numerical Ranking of 8.28 and it was listed 5th in FY 2015, 3rd in FY 2014, and 1st in FY 2016) unreasonable cost or price evaluation (Numerical Ranking of 7.05 and it was listed 1st in FY 2015, 4th in FY 2013, and 3rd in FY 2016) and unreasonable past performance evaluation (Numerical Ranking of 6.89 and it was listed 2nd in FY 2015 and FY 2016) inadequate documentation of the record (Numerical Ranking of 3.97 and it was listed 4th in FY 2015 and 2nd in FY 2013) Anyway, that is my way of trying to quantify the reasons. Other reasons for sustained protests GAO listed include flawed selection decision (Numerical Ranking of 2.75 and it was listed 2nd in FY 2014) unequal treatment of offerors (Numerical Ranking of 2.42 and it was listed 4th in FY 2014 and 3rd in FY 2013) In addition to listing the most prevalent reasons, GAO also gives 1 example decision for each of the most prevalent reasons it lists in a FY. For example, under unreasonable technical evaluation which GAO placed first in FY 2015, GAO lists Deloitte Consulting, LLP, B-412125.2, B-412125.3, Apr. 7, 2016, 2016 CPD ¶ 119. To me, the most striking reason for GAO sustaining a protest is inadequate documentation. That can be prevented by a thorough review of what documents are provided in the evaluation and selection decision. If there is something missing, identify it and correct it. You can get more information on the documentation issue by looking at the Wifcon.com protest page FAR 15.305 (a)(3): Technical Evaluation - Documentation. Another striking reason for sustained protests is the first that I list--failure to follow the evaluation criteria. One time a friend of mine was sitting on an evaluation panel for a GAO procurement that I had no involvement in at all. He had something extra he wanted to include in his evaluation of proposals and he asked me about it. Although I was stunned at the question, I simply told him that he must follow the evaluation criteria in the solicitation and if he had any questions he should ask the contracting officer--not me. Before ending this entry, I will once again remind you that the information provided by GAO only includes sustained protests. These are decisions in which the agency digs in its heels and fights the protest to a final decision. As GAO explains, "agencies need not, and do not, report any of the myriad reasons they decide to take voluntary corrective action." What you see here may be the tip of the iceberg.

I am analyzing the National Defense Authorization Act for Fiscal Year 2017 and I am on section 822 of the bill. I have added the changes the bill will make to the current law in bold italics. This new section changes parts of 10 U.S. Code § 2306a - Cost or pricing data: truth in negotiations. What do you think of the language used for the changes? The change directly below in (a) only adds the bold italic phrase. The change directly below in (b) crosses out the current language and adds the bold italic language. At the end of (b) a new section is added below. The House and Senate conferees explain that the purpose of the changes are:

As a federal employee, I always saved much of my leave until the end of the year. So, I know some of you are already gone for the year while others will be gone soon. To all of you, I wish you the best holiday season ever.

Perhaps caring for chickens will make Title VIII of the NDAA for FY 17 go away. That title has about 100 sections on contracting this year. There appears to be a significant rewrite of DoD's systems acquisition in addition to commercial item contracting sections and other goodies. I did not notice if many of the new sections were written to affect government-wide contracting or just DoD contracting. Whoever gets stuck with it, will be surprised. In addition to the many new contracting sections, it appears that a good number of the sections were changed during conference because there is quite a bit of explanation in the conference report. I assume the legislation is worse than usual because of that. Contracting legislation-on the-fly. I am normally done Wifcon's analysis of the NDAA act by now. However, there is so much of it this year, I will be lucky to have it done by the New Year.