PM63A4

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  1. Thanks again, Vern. Your response to my previous suggestion that the government can, but rarely does, exercise some but not all of the options on a MATOC, was (essentially): Yes, agencies have exercised some but not all of the options on a MATOC (Government Technical Services, Inc. v. U.S.). I don't know how rare it is and if it is rare, so what? This may be getting off topic a bit, but my answer to your (perhaps rhetorical) "So What?" question is that there is a certain amount of inertia within Contracting, perhaps more than any other functional area of expertise within federal procurement. This "inertia" encourages PCOs and buyers to do what has worked in the past. So without precedent (or even few precedents), I have observed that PCOs are less likely to take certain actions. And I would submit that exercising some but not all options on a MATOC is one of these actions. More to the point, I think an action "being rare" matters a lot in Contracting in 2010. I'll grant you that it shouldn?t, but I think it does. I think with more training and curtailing of redundant contracts, our PCOs will become less task-saturated and will be more able to do what makes sense in a particular case and less likely to do whatever worked last time. Your thoughts?
  2. For the benefit of others, as Vern alluded to, the Comptroller General will not even entertain a protest against an agency's decision not to exercise an option, since the Comptroller General considers the decision of whether to exercise an option a matter of contract administration, which is outside of the purview of the Comptroller General's procurement protest review functions. This is true even when the protester alleges that the Government is acting in bad faith. From Jones, Russotto & Walker, B-283288.2, December 17, 1999: "FAILURE TO EXERCISE OPTIONS While Jones styles its protest as a protest against defective specifications, Jones principally challenges the agency's determination to issue a new solicitation rather than exercise the options under the existing contracts. Jones argues that HUD's decision to issue a new solicitation constituted a premature termination of Jones's existing contract which was arbitrary, capricious and without justification. The protester contends that HUD's failure to exercise the options shows bad faith on the part of the agency, and that HUD should set the new solicitation aside until the agency can prepare a sound replacement. The Federal Acquisition Regulation (FAR) defines an option as a "unilateral right" of the government to elect to purchase additional supplies or services or to extend the term of a contract, and makes clear that a contracting agency is under no requirement to exercise an option (FAR 17.201, 17.207). Our Office will not consider an incumbent contractor's protest of an agency's refusal to exercise an option under an existing contract since this decision is a matter of contract administration outside the scope of our bid protest function. We will not consider the matter even where, as here, the protester alleges that the agency's decision to not exercise an option in its contract was made in bad faith."
  3. Vern- Thanks again. I understand the "fair opportunity" requirement for awards of task/delivery orders. You covered that in your "FAR Part 15 Process Model and Process Inefficiency" paper. As for protests on task orders in excess of $10M, I see what you're saying, but we've had options on ID/IQs long before contractors had the right to protest DO/TO awards in excess of $10 million (which I believe started in 2008, if memory serves). So there are plenty of examples (including all ID/IQs awarded before 2008) in which the risk of protest was not a concern, so you can?t argue "risk of protest" was a reason we had options on ID/IQs prior to 2008. But I fully acknowledge that it has applicability now. Next, I concur that "options give the agency a chance to drop any of the awardees with which it no longer wants to do business." However, I wonder if we in the government ever take advantage of this. In response to your question: === Is it your belief that the government cannot refuse to exercise the option of one MATOC contractor while exercising the options of the others? If so, you are wrong. Each contract stands alone in that regard. If there are multiple awardees, the government is not faced with the choice of exercising the options of all or exercising none. === My belief when I wrote that was that, while the government can exercise some but not all of the options on a MATOC, it rarely, if ever, does. I suspect you may have done it, but I don?t know that a lot of other PCOs have. Quite honestly, I thought such an action would be subject to protest, but I was surprised to learn that a firm whose option has not been exercised has little effective legal recourse. I fully understood that an option was a unilateral right of the government, but for some reason I incorrectly believed options on ID/IQs might be viewed differently by the courts/Comptroller General. So you set me straight there. Couple of questions for you: After reading your answer and reading Jones, Russotto & Walker, B-283288.2, I now assume there are no court cases in which a contractor successfully protested a CO?s decision to exercise some, but not all, options on a MATOC. However, I noticed that you seem to have said something different about the government acting in bad faith (i.e. "unless" instead of "even if"). Question: Even if the government is determined to have acted in bad faith, does the contractor have **any** legal recourse? If so, what? NOTE: I suspect the answer might be in B-244741. I searched for "B-244741" on WIFCON and the web, but all I could find was the B-283288.2 case that referenced B-244741, not B-244741 itself. So I don't what B-244741 says. My next question is academic, but I?d be interested in your thoughts. What if you had a MATOC with only two contractors? The PCO has to document his decision to use a MATOC when awarding the contract IAW FAR Part 16.504. In this case, I would argue a decision to not exercise an option for one of these two contractors effectively (if not legally) turns this multiple-award contract into a single-award contract. I would think that this would call into question the original award (i.e., would undermine the FAR requirement that reads: "The contracting officer must document the decision whether or not to use multiple awards in the acquisition plan or contract file."). Wouldn?t the courts have to entertain a protest under these circumstances (again, since the act of exercising the option for only one contractor would call into question the basis for the original award)? Again, thanks for the education. You pounded out a little ignorance today. I honestly thought a decision to exercise some but not all options on a MATOC would be riskier for the government than the risk of protest on any given Task Order, but I now see that contractors have little or no recourse when the government elects to not exercise an option (even in the case of a single contractor on a multiple-award ID/IQ). So I can see that options on ID/IQ contracts are not necessarily a bad idea (but I would add that I think we put options on ID/IQ contracts without thinking of all the reasons you outlined in your answer...).
  4. I agree with what formerfed wrote yesterday: "I believe telling a contractor they won't get any more business until they improve under a multiple year ordering period is just as effective as the threat to not exercise an option." I think this is an important point, and if anyone disagrees substantively with this statement, I?d like to hear your argument countering it. Furthermore, in the case of multiple-award contracts, the argument to "threaten" a contractor by not exercising an option simply doesn't work (unless all of the awardees are underperforming). That is, you wouldn't end a contract with one poor performer and two good ones by not exercising an option. You'd award the task order to one of the two ?good? contractors and make the other contractor understand what he's doing (or not doing) that is impacting our desire to award to him. Having the longer ordering period also gives us the ability (in the case of MATOCs) to allow a contractor to improve and win an award later in the ordering period. This obviously would not be possible if an option were not exercised, and the contract ended before that time. Thus, having a longer ordering period can also impact past performance assessments for a contractor that performs poorly at first but improves under that same contract (possibly years later). I think it is fair to give contractors the opportunity to perform (especially small businesses), and not exercising an option would end the contract before they have an opportunity to improve performance and thereby improve their past performance rating. Could that be a reason we do it? I don?t know. And I?m not a bleeding-heart-liberal, but I think it?s generally in our best interest to have competition, and I believe this approach fosters competition.
  5. Don- Thanks for the reply. Napolik- Maybe. But do you think this logic applies to a Multiple Award ID/IQ? I do not, and I have seen options on MATOCs. You also wrote: "Administratively, it is probably easier to withhold an option exercise than to terminate a contract." Agree, but it's easier (and I say generally smarter) to do nothing than to exercise an option. A longer ordering period obviates the need for options, no? Formerfed- Not sure I've ever seen mins on options. How sheltered am I?
  6. sarah.munozmarquez- You wrote: === ?I ...tended to avoid options and instead had a longer contract term for the issuance of orders (with a prescribed maximum performance time for orders issued prior to the deadline).? === Amen, I say. But why do you say that you tend to avoid options and just go with a longer ordering period? I personally think you?re on to something here, and that something is efficiency in my mind. It?s also using the ID/IQ contract vehicle like it was intended to be used, so I would argue there?s an element of professionalism as well. Let?s assume, for the purposes of this discussion, the ordering period of this ID/IQ is 5 years (so we?re comparing a 5 year ordering period to a 1-year basic plus four 1-year option periods). To me, these two contracting approaches are equivalent in terms of utility to the user (and PM), but there are at least two notable differences for Contracting Officers: 1) The version of the ID/IQ with options takes more effort to award and to administer, and 2) The version of the ID/IQ with options could end the contract earlier (by not exercising an option), whereas absent a termination, the contract with the longer ordering period and no options would remain in effect (albeit ?lying fallow?). So I conclude, for some reason that I honestly don't understand, PCOs would prefer to have the option to have no contract instead of one that is ?lying fallow,? despite the fact that a longer ordering period would appear to be cleaner (and less work as far as I can tell) to award and administer. That is, the PROs of not having a contract after an unexercised option (#2 above) apparently outweigh the CONs of the extra effort associated with creating and administering the contract with options (#1 above). My question is: Why? And Vern, this is a serious question, I really don?t know. I suspect there is something in my #2 above that has value, but I have no idea what it is. You also wrote: === ?Any minimums could be made within the term of the contract - say within two years, rather than in any compelling one year base period prior to option exercise.....given more breathing room for minimums, if that is a concern with some folks.? === I?m pretty sure I disagree with you here, but I?m not sure exactly what you?re saying. Vern or Don can explain this much better than I can, but having options to exercise does nothing in regard to extending the authority to obligate funds. You?ll use funds that are current at the time of contract award to fund the minimum, so you have until these funds expire to do so, but no more. So I don?t know what you mean by having ?more breathing room for minimums.? I think you may be referring to a fiscal law/appropriation issue that your finance and/or legal folks would have to address, not a matter of contracting. That is, options have no bearing on funding the ID/IQ minimum (which serves as consideration for the contract award itself). You also wrote: === ?I have been in situations where the project folks demanded option years automatically for IDIQ's and not wanting to push the matter, I have said sure, I can do that...and then built a good case for not exercising the option(s) which usually I sold them on. ? === You lost me here. If you didn?t exercise the option, then you obviously didn?t require an ordering period past the time when that option came up to be exercised. Building a case to not exercise an option on an ID/IQ is, for the purposes of this discussion, equivalent to arguing for a shorter ordering period (in the scenario with the ID/IQ without options). So I?m a bit confused about what you?re asking or suggesting now. If you know you?re only going to need services for, say, three years, I wouldn?t set up an ID/IQ with an ordering period of five years (muchless one with 1 one-year basic plus 4 one-year options). I?d set it up for an ordering period of three years, because that?s what you think you need. Again, not exercising the option on year four is equivalent to acknowledging that you really only needed the contract for three years, so (with the benefit of hindsight), you should have awarded an ID/IQ with a three year ordering period. But here?s my point: Even an ID/IQ with a 5-year ordering period that starts ?lying fallow? on Year 4 is, to me, preferable to a ?Base Plus 4? ID/IQ. The former is cleaner and more efficient. Even if we find we are wrong about how long we would need the services, it takes one award, not one award plus four options being exercised. The latter approach is inefficient to me (but again, I fully acknowledge that there could very well be a benefit to that approach). You also wrote: === ?I have seen what I consider an all to frequent almost knee jerk reaction by project folks to want every contract vehicle to have options (extended time) to the max and they consider it a no brainer that the CO would go along with that and naturally exercise them.? === I?d ask the project folks making the request to explain what they think an ID/IQ is and why they need or want options on an ID/IQ. Ask them to clearly articulate the difference between having options and not having options--on an ID/IQ. I?m a PM, and quite frankly, I don?t know any PMs who can articulate a significant difference (other than possibly what I pointed out above, and I consider those to be insignificant from a PM perspective). Vern recently posted a rather advanced paper on Options on ID/IQs, but its focus is on creatively extending services, and not on simply cutting task orders that are clearly within scope (which is essentially what we are talking about). Lastly, you asked for someone to elaborate on ?why options are not a good idea on IDIQ's.? Is it because we are limiting competition with the implementation of options? I say they?re not a good idea because they?re unnecessary and inefficient. Options are more work, and there?s no apparent return on that extra work (at least to me). Our PK folks have enough to do, and awarding options on an ID/IQ takes time that I, as a PM, would rather they spend on something else. Here?s the issue in a nutshell to me: What do you get out of exercising the four options in our scenario? My quick answer is you get an ID/IQ with a 5-year ordering period, which is exactly what you could have had from the beginning by awarding a contract with a 5-year ordering period with no options. So why bother with the options? The most common answer to that is that you can end the contract by simply not exercising an option (i.e., without formal termination). That may have value, but why is this better than simply letting the contract ?lie fallow? if the requirement ?dries up? and you award no task orders for, say, the last two years? I suspect the answer to this is that contracts that ?lie fallow? come with overhead and/or generate reporting requirements that PCOs/buyers try to avoid because they have higher priority tasks to attend to, but I honestly don?t know. Can you find out?
  7. Options on an ID/IQ contract: Straight from the heralded "Department of Redundancy Department." Seriously, why do we have options on ID/IQs? I'm looking for a brutally honest answer from someone who awards/administers these and knows why. I really don't get it. And it's not rare. In fact, I don't know that I've ever seen an ID/IQ **without** option periods. Why do we do this? My guess--and it IS a guess--is that there is a benefit for PCOs to do it this way (perhaps fewer reporting/briefing requirements due to some "option loophole"), but I really don't know. Does anyone have a brutally honest answer? There's a saying in the Artificial Intelligence community that an idea (or algorithm) can be so bad, it's not even wrong. Generally, this means such an idea is either a) complete nonsense, or completely redundant/unnecessary. To me, adding options to an ID/IQ contract is an example of an idea that is redundant/unnecessary. Question for the Lawyers and/or PCOs and/or Buyers who award/admin ID/IQs with options: What am I missing? There has to be a reason we do this. I just don't know what it is. Looking forward to an insightful thread.
  8. Vern- Thanks again for the reply. I'll admit there was a bit of "conspiracy theory" embedded in my posts and that I may have gone too far. Let me try to put my posts into context. Shortly after President Obama entered office, he himself mentioned curtailing the use of cost-plus and T&M contracts, and to me, Mr. Doke?s testimony was a variation on this theme. So you?re right, I inferred a lot from what he wrote/said. I think we can all agree that best value approaches (and C-P and T&M type contracts) are overused--your "janitorial services" remark is, sadly, spot-on in some cases. And you know Mr. Doke and I don?t, so I hope you're right, and Mr. Doke is not indirectly suggesting that R&D and large weapons systems efforts need more oversight/reporting requirements and/or?more importantly?that these types of programs should be more susceptible to cuts simply because of their nature (i.e., the solicitation approach or, for the President, the contract type chosen/required). I guess my fear is that, collectively, this mindset this could evolve into ?open season? on any efforts in which the government pays a premium or has any cost risk whatsoever. I honestly don?t know that you have such a fear and/or agree with such a mindset, but I do think trying to curtail best value and T&M and C-P vehicles by requiring reporting on these would not have any positive effect (especially on R&D efforts and other complex efforts/programs that, at least in my experience, exhibit the tendency to ?pay premiums? to get certain very difficult/specialized work accomplished by a company that is more costly but also assessed to be much more qualified). I would submit that most of these efforts are important and are worth the cost, that they don?t need additional oversight/reporting, and that such reporting could very well cause more harm than good to our country and our economy. Cutting programs generally means cutting jobs, and I think there's a connection here. (On a side note, your point that the assessment I mention above is too often being done by people not qualified to do it is fair, but this is not the primary focus of my comments.) At any rate, while I?m still not *certain* what Mr. Doke was suggesting in his testimony, I?m assuming (rightly or wrongly) that he would not disagree that he is suggesting 1) that more reporting is a good thing, and (here?s where I?m putting words into his mouth?) 2) if programs get cut because of such reporting (whether arguably justified or not), so be it. I?m convinced you think that 2) above is not a fair conclusion based strictly on what he said, and you?re right. But if you consider what he said, and then make some (what I think are) reasonable assumptions about how this might play out (which Mr. Doke obviously knows), I think you can see how certain programs/efforts would certainly not be helped by such a law (and could very well be harmed). So I think there is a risk of ?collateral damage? when you lump all ?pay a premium? solicitations together and require additional reporting for these. By comparison, I think doing away with duplicative contracts will save more resources, solve more problems, and would have no (or very little) ?collateral damage.? And again, as long as these funds are stimulating the economy here at home and aren?t being eaten to any great extent by the overhead associated with awarding federal contracts, I say it?s not a bad thing economically. I think our near-term focus should be on making sure the overhead associated with awarding federal contracts isn?t too high, so I think the focus should, first and foremost, be on eliminating duplication of effort. I think this is a workable problem right now and that it would have a significant ROI. On the other hand, I think Mr. Doke?s approach is more along the lines of saving resources by not paying a premium (which is fine in some but not all cases, ?Minimum Needs Doctrine? be damned?) AND by perhaps cutting programs/efforts (which he doesn?t say but I infer, and with which I respectfully disagree). Perhaps my second concern is imagined, but I have absolutely no concerns about cutting the number of duplicative contracts, and again, I?m confident that reducing the number of such contracts would have a positive effect on federal procurement. Okay, I'm really finished this time. Thanks again for your views. BTW, were you goofing off on your ranch when they called these folks to testify? Sorry, couldn?t resist?.
  9. Vern- I'll drop the cell phone example I brought up because it's really not part of my argument. For what it's worth, I don't disagree with anything substantive that you said in your response to that. In all honesty, you didn't work with me as much as I had hoped a reader would with such a simplified "11th grade" example. My point was more about the subtleties of requirements training, not about which type of acquisition strategy to use. So we can drop that, unless you want to keep going and/or get the last word. But again, I don?t disagree with anything substantive that you said on this point. And I certainly didn?t mean to waste your time. But I wanted to go back to my original points, which was in regard to Mr. Doke?s testimony and its applicability to the use of best value vs. LPTA. I honestly think that Mr. Doke *is* advocating the use of LPTA/sealed bidding and *is* suggesting that best value is to be avoided at all costs. And I think you disagree with that, but I'm not sure. Again, Mr. Doke says the most important thing we can right now to fix government procurement is to have the government report to Congress any and all cases in which the government pays a "premium" for a contractor to exceed a stated requirement. So, for the purposes of this discussion, he wants any best value awards in which the award isn't given to the lowest bidder (within the competitive range) to be reported to Congress. Now, since Mr. Doke never says what Congress should do with the information, I think we are required to read between the lines. And when I do that in this case, I make assumptions and conclude that he is thinking that his recommendation will drive the behavior of government SSAs and decisionmakers away from best value and towards LPTA. Again, I'm reading between the lines, and I acknowledge that I can't authoritatively say what he's thinking. But my gut feel is he doesn't want the numbers reported to Congress as much as he wants us to make LPTA awards (which we wouldn't have to report). Do you agree or disagree with that? RSVP. I say this because someone as thorough and logical as he is should/would have stated what he would do with the information reported to Congress, but he didn't do that in his testimony, and he didn't do that in his 1995 article. This was the reason for the half-serious "What Next?" question in my original post. I still honestly don't know what his next step would be (if the information were actually reported to Congress), but I?m not sure it?s a relevant question (and I wasn?t sure when I asked the first time either). I?m not being facetious, I?m honestly trying to figure out what he?s thinking. At any rate, *if* you hop aboard this logic train, then I think you have to conclude that he is an advocate for a move to LPTA (and other cost-centric strategies), and away from best value. That is, I think he is hoping--first and foremost--to have this effect with his recommendation. And if I?m wrong and he truly is after the numbers, I go back to asking what good could come of knowing that it?s a really big number. Pragmatically speaking, you and I both know the number is not going to be exactly right, so he may as well just approximate the number (say, based on a sample of all contracts awarded), state for the record that it?s a really big number, and then continue with his argument (whatever that may be). But is this really his point? Deep down, I doubt it, but I really and honestly don?t know. Anyway, here?s where I was going with my original post: If I?m right and he is an advocate of a move from best value to LPTA at all costs, then (to me) he?s generally opposed to the vast majority of R&D efforts and complex weapon system programs (which, earlier, you agreed do not lend themselves well to LPTA). I?m generalizing, but I think you get my point. And being in the military, that bothers me a bit, so that?s why I was miffed. We in the government don?t know everything about what?s going on at Boeing and Lockheed Martin, any more than the folks at Lockheed know everything that?s going on at Boeing (or vice-versa). Ergo, best value has a role (and an important one in my opinion). Lastly, I understand your point about people being out of work and the government paying too much for goods and services , but as long as we?re investing defense funds in our own Congressional districts and not overseas, and we aren?t using too large a percentage of these funds to run the machine that is government procurement, then we are pouring that money into our economy and that?s not a bad thing. I?ve heard macro-economists summarize defense spending as the best jobs program imaginable because it has the residual effect of ?buying time? by producing weapons that provide for defense of that republic when times get tough and ?other countries have all the money.? Some would say this is where we are now, I don't know. At any rate, I think we both agree that when the costs associated with awarding federal contracts gets too high (because of things like contracting inefficiencies), then we?ve got a problem. And I think we both agree that we have that problem now (to one extent or another). And that?s why I said getting rid of duplicative vehicles is a problem that needs to be fixed. If we were to fix that problem, I think it would provide a huge ROI (in part by freeing up PCOs and buyers to be trained and/or to work on other efforts), which in turn would reduce the costs associated with awarding government contracts. By comparison, a switch from best value to LPTA (in all cases where LPTA arguably makes sense) would have a much smaller impact/ROI, in my opinion. Okay, I?m done, Vern. You get the last word unless you need me to clarify or give a response on something pertaining to my post. As always, if you think replying to this post is worth the effort, please do so. For whatever it?s worth to you, I do value your opinion, so I hope to see a response.
  10. For what it?s worth, training personnel to do a better job documenting requirements might not fix any major problems either. Play along, and try this exercise: 1. Do all the research you want on cell phones and then write down the minimum requirements for your next cell phone. 2. Wait a couple of months. 3. Go to the cell phone store and see if you would really buy the least expensive phone that meets those requirements. (You said you needed 8 hours of battery life, but bought a phone that just came out for an extra $10 because it has 20 hours of battery life, has a $50 rebate, and is waterproof, etc.). Now imagine trying to do the same thing for something as complex as a missile defense system, aircraft, tank, etc. My point is no matter how well we in the government do our research, we can, in some cases, be surprised by what we find available and at what prices. And all the training in the world won't change this. Going back to "best value" above, I acknowledge that such training has utility in that it would help us recognize when to do a "best value" award. However, it won't eliminate the need for "best value" (again, in those circumstances when LPTA isn't appropriate). And if we in the government conclude that we MAY be procuring something under these circumstances, I say we OUGHT TO use ?best value.? In fact, any mandate to use LPTA exclusively would strike me as similar to a mandate to use FFP vehicles for everything we procure. In a sense, it?s a declaration that everything we buy is simple and easy to define.
  11. In the 1995 article that Vern included in his previous post, Mr. Doke made the following recommendation: ?If Congress wants to reduce acquisition costs, attention should be directed toward improving competition.? And ? Training should be provided for?those who define Government's needs in specifications?and for government technical personnel who evaluate proposals.? Like you, Vern, I violently agree with this. Mr. Doke then writes (consistent with his recent testimony): ?Congress should require all agencies to report each year all ?competitive? awards that were not-made to the offeror in the competitive range with the lowest price, and the amount of the difference.? Mr. Doke doesn?t say what Congress should do with that information and/or what changes would ideally result from collecting this information, so I?ll conclude (after reading his article and his testimony and taking in Vern's hints) that he?s generally a proponent of 1) documenting exactly what we in the government need, and 2) using an LPTA approach to procure it. In essence, he?s trying to drive behavior away from ?best value? by adding reporting requirements for it, and anticipating that the average federal employee will respond by doing something other than "best value" (i.e., LPTA). Now, I agree that we do needlessly ?complexify? things at times, and that ?best value? awards are sometimes accomplished when LPTA would suffice (and therefore be preferable). I also acknowledge that Mr. Doke?s recommendation would likely drive acquisition decisionmakers to an LPTA approach in these ?borderline? cases. But some things are truly complex, and in these cases, I would submit that ?best value? is often the preferred approach. Like it nor not, we in the government can?t be omniscient about every aspect of such procurements, so ?best value? clearly has utility in these cases. Requiring additional reporting for using this particular approach (and then getting other than what I?ll call ?the LPTA result?) seems arbitrary and not sensible. Furthermore, the reporting requirements levied on generally more complex, more costly programs that (correctly) use ?best value? will outstrip any value realized by driving (generally smaller) programs from ?best value? to an LPTA approach. Bottom line: I still don?t see what major problem Mr. Doke?s recommendation would fix. The only benefit I see is it might drive the borderline ?Best-Value/LPTA? cases to be LPTA, which would save resources for these source selections and may result in a lower contract cost as well. If that?s what he is driving at, I would humbly submit that this is not a major problem in federal procurement (or at least it hasn?t been a major problem anywhere I?ve worked). Again, I acknowledge that it would pay dividends (if this is a major problem) by reducing the time/resources required for source selections and by guaranteeing that we in the government pay the lowest price for the goods we need. Unfortunately--and I probably shouldn?t say this--I wish this were a major problem. Quite frankly, I don?t know that this would make my ?Top 50.? There are much bigger problems and battles to fight.
  12. Thanks Vern. As always, I appreciate your thoughts. Max Planck (1858-1947) once said ?A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it. In a sense, you teach that new generation the truth from the beginning.? Unfortunately, I think what you say below about training our next generation of PCOs and buyers follows along the same train of thought. The problem with this, as I see it, is that this takes time and does not pay immediate dividends (i.e., workers must first be trained and get experience before they can become more efficient/productive). The training/expertise problem is compounded by the fact that a significant portion of government contracting expertise has disappeared in the last few years, largely due to retirements. So, at the risk of sounding myopic, what, if anything, do you think we can do in the near-term while we wait for training to pay dividends? Is it worth trying to address one or more symptoms while we wait for the cure to take hold?
  13. Vern- I didn?t mean to offend anyone with my previous post. Perhaps I wrongly attacked the messenger (in lieu of attacking his message). One of my analysis teachers used to encouraging us by saying ?Think. Write it down. Repeat as necessary.? I?ve always thought you two were cut from the same bolt of cloth, and I want you to know that I did think before I wrote my initial post. And (I think) I get it, and what you?re suggesting may be right--I may be missing some (or all) of the subtleties of Mr. Doke?s argument. I won?t comment on your remark about our country?s unemployment problems and/or our ability to compete with emerging nations like China, but I feel like I owe you and other readers an explanation of what I was thinking when I made my initial post. My gut feel was that Mr. Doke?s ?Minimum Needs" testimony was an attempt to establish a legal foothold to legally mandate an end to (or at least a curtailing of) what I?ll call ?requirements creep.? Is that about right? If so, I would humbly submit that this isn?t the way to solve that problem (and again, that there are other problems that need to be solved first anyway). So, perhaps I?m stubborn, but I still disagree with the fundamental premise that ?no more important service to government contracting could be provided, right now? than to implement a change to stricter adherence to the Minimum Needs Doctrine. What?s more important, you ask? The establishment, administering, and use of contracts with overlapping (or perhaps even, for all intents and purposes, identical) scope, for one. This, as you know, was one of the main points Mr. Nash and Mr. Schwartz highlighted in their testimony. As I alluded to in my earlier post, I believe this spawns much larger problems within federal procurement circles. So right or wrong, I would have rather had this subcommittee hear about this problem three times (i.e., once from Mr. Nash, once from Mr. Schwartz, and once from Mr. Doke, instead of hearing about it only twice, along with a problem associated with Minimum Needs). Just my opinion. Fair enough? And yes, I'll read the article you included as a link in your post, probably later this week. I assume this is the work Mr. Doke mentioned in his testimony (or at least is representative of it), yes? And I?ll grant you that I should have at least scanned this article or one similar before posting. That being said, I don?t know that reading it will change my mind.
  14. Did anyone else read the STATEMENT OF MARSHALL J. DOKE, JR. (PARTNER, GARDERE WYNNE SEWELL LLP DALLAS, TEXAS) BEFORE THE SUBCOMMITTEE ON CONTRACTING OVERSIGHT COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS, UNITED STATES SENATE, FEBRUARY 25, 2010? There's a link to his testimony under the "News" header on the top right of the WIFCON homepage that you can use if the following link doesn't work: http://hsgac.senate.gov/public/index.cfm?F...33-adffe3ccfa18 Mr. Doke is clearly a respected member of the procurement and legal community. However, with all due respect to Mr. Doke, I offer the following commentary of his testimony: In his testimony, Mr. Doke placed significant emphasis on the ?minimum needs? doctrine. Mr. Doke?s testimony seemed to indicate that best-value source selections and trade-offs are completely inconsistent with the ?minimum needs? doctrine, and therefore such practices should be curtailed or abandoned entirely. His testimony included such remarks as: ?When a contract is awarded to a competitor whose price is higher than the price offered in an otherwise acceptable proposal, the difference between the lowest price and the contract award price is the price premium being paid for the other, non-price, evaluation factors. In other words, the price premium reflects how much more the Government is paying for evaluation factors such as additional years of experience, better reputation, more intrinsic value, etc. That price premium must be documented in the contract file, but there is no requirement, anywhere, that these price premiums be reported above the contracting officer level.? He then goes on to say: "Why should the Government pay a price premium for a contractor to perform more than satisfactorily? If the Government needs performance that is more than satisfactory, that must be because the Government has not properly defined what ?satisfactory? means in the specifications or statement of work." He then concludes with this recommendation: ?I respectfully submit to this Subcommittee that no more important service to government contracting could be provided, right now, than merely IMPOSING A STATUTORY REQUIREMENT THAT PRICE PREMIUMS PAID FOR EVERY CONTRACT BE REPORTED ?UP-THE-CHAIN? TO THE DEPARTMENT LEVEL and aggregated at each level.? Mr. Doke seems to be suggesting that ?Lowest Price Technically Acceptable? is the only type of procurement that we in the government ought to pursue (IAW the ?minimum needs? doctrine) unless we want to report our contract awards to our department heads so they can report to Congress. So, let?s walk through a very simple scenario. Let?s say we have a requirement for widgets, and we in the government want to make sure we get reasonably reliable widgets. So we decide the reliability requirement is a Mean Time Between Failure of One Year. That is, we need them to work, on average, a year (minimum) before they fail. Mr. Doke appears to be suggesting?in all cases, best I can tell?that, given that we have documented the need for an MTBF of one year, we should procure the least expensive widgets that have an MTBF of at least one year, even if we can get widgets with an MTBF of two years for an additional $1.79 (the ?price premium?). To be fair, really what he?s saying is we can pay the extra ?price premium? for the superior product, but then we are required to report this through the chain so our Department Head can report it to Congress. To which I say, what good could possibly come of this? My guess is we?d probably need several DVDs for this list of contracts, and that?s just for DoD. So we capture all of this info (using already scarce resources) to meet this reporting requirement and then?POOF?it becomes official that there are, in fact, ?a bunch? of such contracts. Then what? A ?Lowest Price Technically Acceptable? mandate? I seriously doubt it. So what, then, do we hope to accomplish? So, I?ve decided I?m filing the transcript of Mr. Doke?s testimony under ?Let?s make another rule to lessen the need for sound judgment, and see how that works.? Does anyone feel the same as I do? Does anyone disagree? I have to be honest, I?m a bit miffed that Mr. Doke was invited to testify on this topic. What kind of procurement professional would ask rhetorically: ?Why should the Government pay a price premium for a contractor to perform more than satisfactorily?? Furthermore, the fact that someone of significant standing in the community honestly believes that ?no more important service to government contracting could be provided, right now? is completely demoralizing to me. The good news is that there were three other panel members, and each of them offered cogent testimony. I personally found the testimony of Mr. Ralph C. Nash and Mr. Joshua I. Schwartz to be remarkably astute (and ?talk-about-it-over-beers? accurate), and I found the testimony of Mr. Steven L. Schooner to be a solid summary of some major issues (albeit slightly less hard-hitting than the testimony of Mr. Nash or Mr. Schwartz). So, if you only have time to read two of these transcripts, read Mr. Doke?s testimony, get angry, and then read Mr. Nash?s testimony. Then tell the rest of us what you think.