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bob7947

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  1. 1 hour ago, Don Mansfield said:

    One summer when I was in college, I worked at Brookhaven National Laboratory. It is a DOE lab that was run by an M&O contractor (Batelle) at the time. I never figured out exactly what my job responsibilities were, but I was part of a "crew" that spent a lot of time in a warehouse reading the newspaper and playing cards. We were once called on to ride out to the Relativistic Heavy-Ion Collider (RHIC) and remove some trash in the form of a broken down steel structure. When we left, the driver passed the road to the dump instead of turning. I asked where we were going. He said "we need to find out if this stuff is radioactive." I asked "what if it is?" "Well, then we'll have to go to medical" he said. "What will they do?" I asked. "They'll have to scrub off the first layer of skin" he said.

    Luckily the stuff wasn't radioactive.

    Good times.

    One of my colleagues wouldn't walk off the paved roadway at Rocky Flats because he feared it was contaminated and we weren't wearing dosimeters.  I was strolling around Oak Ridge after work once and ran into a creek with the radioactive sign.  That was it for that stroll.

  2. This is my third and last post on this subject.  I'll try and make this one short.  Again this was during the 1990s and my first involvement with M&O contracts.  The first thing I did was order a computer run showing DOE's contracts that included, among other things, all the obligations by date to all contracts.  Nothing extraordinary except that DOE was dumping funds in its M&O contracts at the end of the fiscal year.  Of course, unobligated amounts is what Congress looks at.

    I've hightlighted the "commonly recognized indicators for" M&O use.  Let me expand on those a bit:

    • broad statement of work.  The statement of work tells one next to nothing because actual work is sent to the M&Os by task.
    • requirement is continuing with no foreseeable end.  At least one M&O contract had an award date in the 1940s and others were not much younger.
    • The contractor’s workforce is large, remaining at the site despite change of contractors.
    • The contractor must link its accounting system with the Department’s, and integrate its budget process with the Department’s.

    They don't mention another feature. 

    • M&O's are funded with no-year funds.

    Now, sit back and think about this.  Are we really talking about contractors or government regional offices?  That is one thing that always bothered me. 

    Then we were invited to a meeting where DOE explained its accounting system that included the integration of M&O contracts.  It was great.  One could see everything.  The M&O work was coded by task numbers and a new feature that went beyond obligated and unobligated funds.  This was costed obligations (spent funds) and uncosted obligations (unspent funds).  Everything fell into place.  By the end of the DOE meeting, I was squirming in my seat because the uncosted obligations totaled about 80% of DOE's annual budget or about $12 billion.  That was when a billion dollars was a lot of money.  Of course, I orderd one of those computer runs and all the task order codes.

    Then the fun began.   DOE could hide appropriated no-year funds from Congress by obligating it to M&O contracts since they can last for decades.  Once with an M&O, the funds disappeared from Congress's view but was still visible in DOE's financial system.  All that was left for us was proving that DOE could give some of that $12 biillion back to the Treasury.  What to do?  Simple, look for dead programs that continue to be funded and have uncosted obligations.  We found some of those and it was time for a field trip.  One M&O accountant explained that the M&O didn't need the DOE funds because the program was dead but held the funds in reserve.  Another M&O program manager pointed to an empty field and explained that was where the building would have been before the program was killed but the funds remained as uncosted abligations.  When we talked to a DOE Area Office Manager, he said something like "We were wondering when GAO would finally find out about uncosted obligations."  Congress reduced DOE's budget by about $4 billion the next fiscal year.  Now, DOE must submit bith its regular budget request a report on its uncosted obligations.

    That was the end of my work with M&O contracts.  I moved on to the IRS and annoyed them about task order contracts.  From there I retired.

    Quote

    1. Generally, the contractor assumes multi-program scientific and technical responsibilities and work under a broad statement of work.

    2. The requirement is continuing with no foreseeable end.

    3. The contractor is responsible for integration of scientific and technical and infrastructure functions.

    4. The contractor performs the substantial portion of scientific and technical responsibilities with its own workforce.

    5. The contractor’s workforce is large, remaining at the site despite change of contractors. This results in the need for DOE to assume stewardship of employee relations and workplace labor conditions.

    6. DOE oversees security, health, and safety at the site.

    7. Work takes place at very large, Government-owned reservations and facilities.

    8. DOE requires the successful offeror to form a corporate entity specifically for and dedicated to the performance of the DOE M&O contract. The contactor may accept work only directly from DOE or as allowed specifically under the M&O contract.

    9. The contractor must link its accounting system with the Department’s, and integrate its budget process with the Department’s; usually the budgets for M&O contracts are line items in the Department’s budget.

     

  3. Since several of you read my earlier post about management and operating contracts (M&O), I decided to add two more posts.  I worked with these contracts in the 1990s and found them fascinating--can you tell?  Here is more than a starting point from part of DOE's Acquisition Guide.  (Match the number to the FAR)  It is the 

    DISCUSSION OF THE ORIGIN, CHARACTERISTICS, AND SIGNIFICANCE OF THE DEPARTMENT OF ENERGY’s MANAGEMENT AND OPERATING (M&O) FORM OF CONTRACT.

    At the end on p, 12 and all of p. 13 it provides key aspects of DOE's M&O contracts.  Read #5 "contractor’s workforce is large, remaining at the site despite change of contractors"  Whoa, what's that.  That is where my colleague got the idea of M&O contractors as "boarding parties."  Usually, these contracts encompass the functions of a small city.  Think of the M&O as the election of a new mayor and city coumcil for a small city.  The populace remains in the city.

    When you build a nuke you develop

    Sometimes, I look at the M&O National Laboratories on google maps.  Here's a game I sometimes play called Where's the Accelerator.  There are at least 2 types--circular and linear with experimental stations attached.  Using google maps, can you spot them at

    Fermilab?  (circular)

    Argonne?  (circular)

    Thomas Jefferson National Lab?  (linear)

    Hint:  These are user facilities where members of educational institutions and corporations can run experiments.  You will probably find housing facilities for the users.  Of course, managed by the M&Os.  There may be more than one accelerator at a site.

    I will add the 3rd post at a later date.

  4. I posted a link to the Department of Energy/National Nuclear Security Administration management & operating contracts on nuclear related work mentioned above on the Home Page.  They are performance reviews but the contracts are there.  These contracts are somewhat different than typical FAR contracts and they include DEAR clauses.

    I haven't worked with them in about 25 years.  When I first looked at them, I couldn't figure out what they were.  Then I read about how they were developed from the Manhattan Project during WWII.  It took some time for me to figure them out.  I'm posting this because most of you probably have not seen one.  This can be part of your education.

    I don't know how much they've changed over the years.  I hope they have for the better.

    One of my colleagues came up with the term "boarding party" for the actual contractors.  I always liked that.  Maybe you can figure out why.

  5. I'll add it so we know what is being discussed.

    Quote

    Although the Court acknowledges the likely “obligation [of an offeror] to ascertain the continuing availability of key personnel at the time of submission of final proposal revisions,” OAO Corp. v. United States, 49 Fed. Cl. 478, 482 (2001), 37 the Court is unable to locate the basis for the GAO’s rule “that offerors or vendors are obligated to advise agencies of material changes in proposed staffing, even after submission of proposals.” AttainX, Inc., B-419306, 2021 CPD ¶ 21, 2021 WL 228876, at *4 n.4 (Jan. 12, 2021). Indeed, “[t]he GAO’s rule that offerors are ‘obligated’ to notify agencies of changes in the status of their proposed key personnel” strikes the Court, candidly, as without legal basis and “unfair.” Vernon J. Edwards, Key Personnel Substitutions After Proposal Submission: An Unfair Rule, 31 Nash & Cibinic Rep. ¶ 59 (2017) (criticizing the rule as “GAO diktat” because it has not been subject to “publication in the Federal Register and an opportunity for public comment”). 38

    The excerpt is on p. 30 of Golden IT, LLC v. U. S. and Spatial Front, Inc., No. 21-1966C, February 4, 2022.  (February 7, 2022)  It is in footnote 38 on p. 30 and runs on further.

    ********

    here_2_help:  I appreciate you mentioning that bid protests are posted on the Home Page so that others may use them too.

  6. 3 hours ago, Vern Edwards said:

    I hope this result shows people that (1) "technical proposals" that describe a distant, imagined future are not, and never have been, reliable bases for contractor selection and contract formation, and that (2) gimmicky contractual incentive devices simply do not work and never have.

    But it won't show people. I guess nothing ever will.

    Why not add in a bogus RFP requirement from 1973.  From the RFP.

    Quote

    Each proposer was required to submit a proposal encompassing the entire SRM project for three increments.  Cost proposals were requested for Increments 1 and 2 which covered all efforts required for the total design, development, test and evaluation (DDT&E) of the SRM, including six development flights, and all efforts necessary to manufacture, test, and deliver new and refurbished SRM's for 54 flights (108 SRM's)  Increment 3 cost estimates were to comprise all efforts necessary to manufacture, test, and deliver new and refurbished SRM's for 385 flights (770 SRM's).

    Add the 12, 108, and 770 together and you have 890 solid rocket motors for 444 Space Shuttle flights over the Shuttles planned 11 years.  

    From 1981 through 2011 there were 135 Space Shuttle flights that required 270 solid rocket motors.  I'll stop here

  7. Last month, I saw another DoD-IG report on TransDigm Group and I thought I ignored it.  I didn't and it is on the Home Page.

    That report is Audit of the Business Model for TransDigm Group Inc. and Its Impact on Department of Defense Spare Parts Pricing (DODIG-2021-043) It went public on 12/13/21.  The DoD-IG report that Vern posted was from 2/25/2019 and appears to be part 1 of this effort.  

    I decided to see what TransDigm Group had to say about the latest DoD-IG report and it is:  TransDigm Comments on DOD IG Report. dated 12/13/2021.

    The draft bill that Vern posted is labeled the Second Session of the current Congress.  In short, if that bill is/has been introduced it will be in 2022.  If it goes nowhere over the next 6 or 7 months watch the next House version of the NDAA for 2023.  

  8. This year, I started doing this annual analysis around Christmas.   Here is a short recap of what happened with the NDAA.

    1. The House passed H. R. 4350 on 9/23/2021 - the House version of the NDAA.
    2. The Senate Armed Services Committee introduced S. 2792 on 9/22/2021 in the Senate with a written report.  However, the Senate never passed S. 2792.
    3. The Senate considered H. R. 4350 from 11/19/2021 unti December 2, 2022 without any further action.
    4. Members of the Senate and House Armed Services Committee worked together on their own to come up with an NDAA for FY 2022.
    5. S. 1605 was adrift in the Senate and amended with the "agreed to" NDAA for FY 2022.  It quickly passed both the House and the Senate.
    6. A "Joint Explanatory Statement to Accompany the National Defense Authorization Act for Fiscal Year 2022" was written and S. 1605 states that it has the same force as a "Conference Report."  In the 21 years I've been doing this it is only the second time that happened.

    That's the official story.  This is what I think happened--and probably did--after # 3 above.  Members of the Senate Armed Services Committee realized that they were unable to amend H. R. 4350, hold a conference with the House to discuss differences between H. R. 4350 and a Senate bill, and pass a conference report in both houses in a couple of weeks. 

    The Senate did collect 945 amendments and dropped them into another amendment called S. Amdt. 3867.  S. Amdt 3867 is an unworkable mess.  The Senate tried to close the Senator's ability to add amendments on December 2, 2022 --something called cloture--but couldn't get cloture passed in the Senate.  They had no bill in the Senate because S. 2792 never passed the Senate, there were already 945 amendments to H. R. 4350, they could'nt end the amendment process and they wanted to get home for the holidays.

    That is when members of the Armed Services Committees went off the grid and used H. R. 4350 and S.2792 as their starting point and picked and chose amendments they could agree to and added them to the 2 bills.  When this was going on some staff were preparing the Joint Explanatory Statement I mentioned above.  It is on the House Armed Services web site.  At that time, S. 1605 was picked and amended with the "agreement" struck by the members who were off grid.  It was agreed by procedure that S. 1605 would pass the House and Senate quickly and it did in time for the holidays.  I think that was about December 15, 2021.  Since there were things being done concurrently, the Joint Explanatory Agreement appears to have errors by stating that S. Amdt 3867 is the referred to as the Senate "amendment" for legislative history purposes.  However, in reality, the S. Rpt. that accompanied S. 2792 was used together with the report that accompanied H. R. 4350 to explain the legislative history.  When you look at the individual sections of P. L. 117 - 81 in the left coumn and the legislative history in the right column you will see that S. 2792 and its report is referred to as the Senate Amendment--not S. Amdt 3867.

    In the end S. 1605--however it was decided to use it as the vehicle for the NDAA--passed the Senate and the House and was signed at the White House to becaome P. L. 117 - 81, the NDAA for FY 2022 .

    I thought about what part of the legislate history I would use if I argued a point.  Since S. 2792 and its report never passed the Senate, I wouldn't use that.  I would stick to what is referred to as the "agreement" and stop there. 

    National Defense Authorization Act for Fiscal Year 2022.  

  9. “Men must turn square corners when they deal with the Government.” Rock Island A. & L.R. Co. v. United States, 254 U.S. 141, 143 (1920) (Holmes, J.). In this case, the Court is presented with whether Lodge Construction, Inc. (“Lodge”) fraudulently submitted cost claims to the United States."

    "This case should serve as a cautionary tale to government contractors."

    Quotes are from the opinion.

    Lodge Construction, Inc., No. 13-499; 13-800, January 10, 2022

  10. S. 1605, The NDAA Act for FY 2022.

    I looked at Congress.gov and found that it is still referring users to an outdated bill as the NDAA Act for FY 2022.  In fact, the outdated bill is the most viewed by users.  As of 12/23/21, S 1605, The NDAA for FY 2022 is now at the White House ready for signing.  When you look at S. 1605, it does not look like what it is because of the way it was passed in Congress.  It will be signed into law within the next several days.

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

    PS:  I'm beginning to do the Wifcon analysis now and will be done by New Years Day.  Read my past several posts if you are wondering what is current.

  11. This explains part of the process used.  The document is datad 12/7/2021

    Quote

    Representative Adam Smith (D-Wash.), Chairman of the House Armed Services Committee, Representative Mike Rogers (R-Ala.), Ranking Member of the House Armed Services Committee, Senator Jack Reed (D-R.I.), Chairman of the Senate Armed Services Committee, and Senator Jim Inhofe (R-Okla.), Ranking Member of the Senate Armed Services Committee, today released the text of an agreement they have reached on the National Defense Authorization Act (NDAA) for Fiscal Year 2022 (FY22).

    “We are pleased to announce we’ve come to a bipartisan, bicameral agreement on this year’s National Defense Authorization Act. This year’s agreement continues the Armed Services Committees’ 61-year tradition of working together to support our troops and strengthen national security. We urge Congress to pass the NDAA quickly and the President to sign it when it reaches his desk,” the members said.

    The legislative text is available here:

    This legislation is substantially based on two bills: (1) H.R. 4350, the National Defense Authorization Act for Fiscal Year 2022, which passed the House on September 23 by a vote of 316-113; and (2) S. 2792, the National Defense Authorization Act for Fiscal Year 2022, which was approved by the Senate Armed Services Committee on July 21 by a vote of 23-3.  

    Because enacting the NDAA in a timely manner is critical, the two bills were combined through a series of negotiations led by the leadership of the HASC and SASC. Negotiators considered proposals offered by members of both parties that were filed in the Senate. The final text of the bill promotes resilience, innovation, and the right tools for U.S. success in strategic competition, and provides vital quality of life improvements for the backbone of America’s fighting force: Our service members and their families. 

     

  12. Apparently, the House and Senate Armed Services Committee members (and their staffs) realized they would be unable to complete consideration of the 2 House and Senate versions of the NDAA Act of 2022, hold a conference to iron out difference between the 2 bills, and agree on the conference report.  They had less than a month to do that before they left for the calendar year.  Instead, some members of the 2 Armed Services Committees and their staffs negotiated the differences between the 2 bills and reached agreement on what the NDAA would look like.  Just think of it as a "truce."

    In one year with a similar situation, a document was written to explain what the committee members agreed to in their truce.  That document was called a "Joint Explanatory Statement"  Once again the Armed Services members used the JOINT EXPLANATORY STATEMENT TO ACCOMPANY THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2022 Now the explanatory document was completed on December 5, 2021 before the House and Senate even considered a bill on which to vote.  To do it, they found a bill to amend with a substitute, in this case the NDAA for 2022.  Agreement had to be reached not to amend the new NDAA as it floated through both houses.  The selected bill was S. 1605,  to designate the National Pulse Memorial located at 1912 South Orange Avenue in Orlando, Florida, and for other purposes.  That explains the S. 1605 bill number.

    Both Houses agreed to the NDAA for 2022 as explained in my earlier post and the effective legislative history is the Joint Explanatory Statement.  I found a nice explanation of this process in an earlier effort and I wil post it later if I find it again.  I assume that the White House has agreed to all of this to make the actual signing of the NDAA of 2022 a Public Law, without a veto, soon

  13. To get the NDAA approved quickly, S. 1605 was used as a vehicle.  S. 1605 was a bill to designate the National Pulse Memorial located at 1912 South Orange Avenue in Orlando, Florida, and for other purposes

    For our purpose, it is the National Pulse Memorial bill.  On December 7, 2021, the National Pulse Memorial bill was considered and amended by the House with the National Defense Authorization Act for Fiscal Year 2022 as a substitute.  S. 1605 was passed on December 7, 2021.  On December 15, 2021, S. 1605 passed the Senate without amendment.  Since the House and the Senate both approved S. 1605 without any disagreement there will not be a conference report.  

    I expect an explanation for the various provisions to come soon.  

     

  14. This week, I noticed that GAO had published its FY 2021 annual report on its bid protests.  So, I planned to update Wifcon's information.  Then I realized, Wifcon's data had 2 years missing--2020 and 2006.  I updated those last night.  Just now, I found a few formatting issue I need to correct.  However, we are talking about 25 years of information-- 3 decades.

    The fiscal year numbers at the top of each column are links to GAO's annual reports so you can read them, if you want.  FY 2002 through 1997 do not have links.  Back then, GAO's annual reports provided limited data that did not include annual statistics.  I remember contacting GAO's Bid Protest Unit in the late 1990s to obtain the early year's statistics from one of the attorneys.  In short, to my knowledge, there is no other place you can find 25 years of data.

    I've tried to include footnotes explaining key points about the statistics.  Here is a warning.  Do not look at one year's data, look for trends.  Another thing.  GAO counts protests as B-numbers.  As a result, a published decision may include several B-numbers.  Footnote 1 explains that.

    Here you go:  Comptroller General Bid Protest Statistics - 25 Years of Fiscal Year Data.  There are 2 pages of data:  1 for 2021 through 2010 and another from 2009 to 1997.  To get to the 2009 through 1997 data you need to click Go To Statistics for FYs 2006 through 1997.

  15. by Vernon J. Edwards

    The Nash & Cibinic Report

    Courtesy of Thompson Reuters

    Published with permission of the author

    The Federal Acquisition Regulation does not define strength.  A definition of weakness was added to the FAR by the FAR Part 15 Rewrite, Federal Acquisition Circular 97-02, 62 Fed. Reg. 51224, 51233 (Sept. 30, 1997). FAR 15.001 thus defines weakness:

    “Weakness” means a flaw in the proposal that increases the risk of unsuccessful contract performance. A “significant weakness” in the proposal is a flaw that appreciably increases the risk of unsuccessful contract performance.

    So a weakness is a “flaw,” which the OXFORD DICTIONARY OF ENGLISH defines as “a mark, blemish, or other imperfection which mars a substance or object.” That clears things up. And thus we suppose that a strength is a perfection that reduces risk and a significant strength is one that reduces risk appreciably.

    FAR 15.001 also defines deficiency:

    “Deficiency” is a material failure of a proposal to meet a Government requirement or a combination of significant weaknesses in a proposal that increases the risk of unsuccessful contract performance to an unacceptable level.

    That definition, also added by the FAR Part 15 Rewrite, replaced the definition that had been in FAR 15.601, which was:

    Deficiency, as used in this subpart, means any part of a proposal that fails to satisfy the Government’s requirements.

    The new definition muddied up that simpler definition by adding the phrase “a combination of significant weaknesses,” which raises all kinds of questions.  (One could base a Master’s thesis or perhaps even a Ph.D. dissertation on the crummy definitions in the FAR.)  (November 2021)

    Please Read:  Postscript: Source Selection Decisions.

  16. A Primer On Source Selection Planning: Evaluation Factors And Rating Methods

    by Vernon J. Edwards

    Briefing Papers

    Courtesy of Thompson Reuters

    Published with permission of the author

    This is a primer on source selection evaluation factors for award and the rules regarding their selection and use. It is intended for those who plan to use the tradeoff process method of source selection; however, some parts of it may also be of interest to those who plan to use the lowest price technically acceptable method.  (November 2021)

     

  17. SCORING OR RATING IN SOURCE SELECTION: A Continuing Source Of Confusion

    by Vernon J. Edwards

    The Nash & Cibinic Report

    Courtesy of Thompson Reuters

    Published with permission of the author

    Two protest decisions show that some Contracting Officers do not understand the difference between evaluating proposals and scoring or rating them and do not understand the proper role of scores or ratings in contractor selection processes.

    In Beta Analytics International, Inc. v. U.S., 67 Fed. Cl. 384 (2005), declaratory relief ordered, 2005 WL 3150612 (Fed. Cl. Nov 23, 2005), 47 GC ¶ 524, the U.S. Court of Federal Claims decided a postaward bid protest in favor of the plaintiff because the source selection official relied on unsupported average scores in making her decision. In YORK Building Services, Inc., Comp. Gen. Dec. B-296948.2, 2005 CPD ¶ 202, 47 GC ¶ 537, the Comptroller General sustained the protest because the source selection official relied on unsupported total scores to make a decision that was inconsistent with the terms of the Request for Proposals.

  18. Contract Line Items

    by Vernon J. Edwards

    Briefing Papers

    Courtesy of Thompson Reuters

    Published with permission of the author

    A contract must identify what is to be delivered or done and designate the terms that apply to each such obligation. So how are contractual obligations—duties and rights—to be arranged in a contract document? What ties everything together? The answer is what the Federal Acquisition Regulation (FAR) refers to as line items or contract line items. Line items are the organizing component, the center of mass, of every Government contract.

     

  19. 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.

  20. 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.

  21. 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.

  22. 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.

     

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