Emptor Cautus

At the beginning of Fiscal Year 2008 John Krieger and John Pritchard, two professors at the Defense Systems Management College, Defense Acquisition University, were kicking around the topic of Acquisition Reform. They reflected on what Jim Nagle wrote in the Epilogue to A History of Government Contracting, "If someone were asked to devise a contracting system for the federal government, it is inconceivable that one reasonable person or a committee of reasonable people could come up with our current system. That system is the result of thousands of decisions made by thousands of individuals, both in and out of government. It reflects the collision and collaboration of special interests, the impact of innumerable scandals and successes, and the tensions imposed by conflicting ideologies and personalities." They reflected that those thousands of decisions were like putting bandages on the acquisition, contracting and procurement processes. Every time a piece of legislation is passed to “fix” the acquisition process, it’s another bandage. Every time a change is made to the Federal Acquisition Regulation (FAR), it’s another bandage. Every time a change is made to the Defense Federal Acquisition Regulation Supplement (DFARS), it’s another bandage. Every time a procurement or contracting policy memorandum is issued, it’s another bandage. They joked about that being a great visual aid for the classroom. (Remember classrooms, the places you went to learn before COVID-19?) And the joking became reality. They started with a golf ball, and added a bandage for each new law, executive order, regulation, guide handbook, etc. And it would grow, and grow, and grow. “Acquisition Reform and the Golf Ball” was born that day. The story of the golf ball was chronicled each fiscal year, and reported in the National Contract Management Association’s Contract Management (CM) after the end of each fiscal year. That is each year up until the report on the results for Fiscal Year 2020, when CM declined the latest installment in the series. Although John and John sought publication elsewhere, there didn’t appear to be a good fit, which brings the latest iteration, “Acquisition Reform and the Golf Ball—A Baker’s Dozen,” to Wifcon.com. (See attachment.) Acquisition_Reform_and_the_Golf_Ball_Bakers_Dozen_-FY2021-_Wifcon.com_v2.docx

This will probably be my last mention of the Section 809 panel here, as Bob has created a new discussion category (i.e., Section 809 Panel) in the discussion area. I just wanted to respond to Melissa’s call to action. My eponymous self was already part of the solution, having discussed potential changes with a number of Panel members even before the names of the Panel members became official. And, subsequently, with them and with the Panel's support group. However, responding directly to Melissa’s call to action, I have submitted a recommendation at the Panel's website as Emptor Cautus, recommending that most of the coverage in the Federal Acquisition Regulation concerning personal and nonpersonal services contracts be eliminated. It is based on outdated guidance, largely unnecessary, and may even be counterproductive to the efficient and effective acquisition of services in a mixed workforce environment. The recommendation is not a new one. It was a recommendation of the Section 1423 Panel, which shares two members with the Section 809 Panel. You can see the findings and recommendations on the subject or personal services in the REPORT OF THE ACQUISITION ADVISORY PANEL to the Office of Federal Procurement Policy and the United States Congress, January 2007. Why did I do this, after I had painted such a forlorn picture of acquisition reform? Why should you do it? Remember this, after Pandora had opened the box (or jar) given to her, and released all the evils that were held within upon the world, there was one thing remaining — Hope.

Another set of acquisition reform recommendations come from Jeffrey P. Bialos, Against the Odds: Driving Defense Innovation in a Change-Resistant Ecosystem. These come to us from the Center for Transatlantic Relations, The Paul H. Nitze School of Advanced International Studies, The Johns Hopkins University. Against the Odds is intended to address the issue of the will to change. I was particularly taken by a statement made by the Honorable David Oliver, Jr. in a Special Foreword. I thought that pretty well summed up at least one of the issues associated with achieving successful change through acquisition reform.

In the 1973 futuristic mystery thriller Soylent Green there’s an exchange between Detective Thorn (Charlton Heston) and Hatcher (Brock Peters): Det. Thorn: Ocean's dying, plankton's dying . . . it's people. Soylent Green is made out of people. They're making our food out of people. Next thing they'll be breeding us like cattle for food. You've gotta tell them. You've gotta tell them! Hatcher: I promise, Tiger. I promise. I'll tell the Exchange. Det. Thorn: You tell everybody. Listen to me, Hatcher. You've gotta tell them! Soylent Green is people! We've gotta stop them somehow! Acquisition Reform is like Soylent Green, it’s people. I don’t mean the Congresscritters, like Representative Thornberry and Senator McCain, and their Committees. I don’t mean the Administrator of the Office of Federal Procurement Policy, whoever he or she may turn out to be. I don’t mean the acquisition and procurement policy wonks in the Pentagon and elsewhere. This past week (i.e., 14 – 20 May 2017) was a big week for the professional acquisition reformers: The Advisory Panel on Streamlining and Codifying Acquisition Regulations issued the “Section 809 Panel Interim Report” (May 2017). Read the 60 page report, and formulate your own opinion if it will fix the problems in Government acquisition. Frankly, I think it will take more than getting rid of the $1 coin requirement, but I could be wrong. Representative William McClellan "Mac" Thornberry introduced H.R. 2511 “To amend Title 10, United States Code, to streamline the acquisition system, invest early in acquisition programs, improve the acquisition workforce, and improve transparency in the acquisition system.” The short title on that would be ‘‘Defense Acquisition Streamlining and Transparency Act’’. (sic) Read the 80 page resolution, and formulate your own opinion if it will fix the problems in Government acquisition. [If we have Representative Thornberry, can Senator McCain be far behind? (Or, is that FAR behind?)] A (moderately) reliable source has told me that the Department of Defense will be leaving Better Buying Power behind, now that Mssrs. Carter and Kendall are gone. But, wait, acquisition reform has not been abandoned. Apparently, it will go on, but now as “Continued Acquisition Reform.” Presumably that will be abbreviated as “CAR.” Continued Acquisition Reform should not be confused with Continuous Acquisition Reform nor Continued Acquisition Reform, nor Continuous Process Improvement, for that matter, those would all be bygone days. The professional acquisition reformers have time and again passed legislation and issued regulations to “fix” the acquisition process. This fiscal year (2017) Title VIII (i.e., Acquisition Policy, Acquisition Management, and Related Matters) of the National Defense Authorization Act (NDAA) had 88 sections. The year before, 77 items. And, yet, Representative Thornberry and Senator McCain believe there is a need for a lot more acquisition reform legislation this year. Title VIII has included over 500 sections over the last ten years, but we still need more. What we have at issue here is what is referred to as the Law of the Instrument. Although he was not the first to recognize the Law, Abraham Maslow is probably the one best remembered for articulating it, "I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail." For those of us on the receiving end of the Congressional output that would be, “I suppose it is tempting, if the only tool you have is a legislation, to treat everything as if it were a bill." I suspect, although I cannot be positive, that most, if not all, of the folks doing the legislating have never had to use the Federal Acquisition Regulation (FAR) to buy anything. If they had, they would not be nearly so cavalier in tossing around statements about how bad the acquisition process is, and how more legislation is the answer. Will such legislation solve the acquisition problem? According to the Honorable Frank Kendall the answer is a resounding “NO.” But, in all fairness, it’s not just them. Since we last had a reissuance of the FAR in March 2005, the FAR Council has brought us 95 Federal Acquisition Circulars (FACs) to update and expand the FAR. Since we last has a reissuance of the Defense Federal Acquisition Regulation Supplement (DFARS) in January 2008, the Defense Acquisition Regulations Council has brought us 211 Defense FAR Supplement Publication Notices (DPNs). With all of that, there are still dozens of open FAR and DFARS cases yet to be heaped on our plate. Although legislation may have been a major root cause of much that change activity, we can probably offer some of our “thanks” to the President, OMB, OFPP, GAO, Boards of Contract Appeals and Courts. Admittedly, now and again, a good idea actually gets slipped into the regulations. [Note: The number of FACs and DPNs issued in 2017 was artificially suppressed as a result of Executive Order 13771 – Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. The two councils (i.e., FAR Council, Defense Acquisition Regulations Council (DAR Council) and the Civilian Agency Acquisition Council (CAA Council)) withheld publication of a large number of cases while policies and procedures were “sorted out.”] [Note: Refer to Augustine’s Laws, Law Number XLIX: Regulations grow at the same rate as weeds.] And, if that were not enough, we have institutional acquisition reform (e.g., policy letters, memoranda, directives, instructions, guidebooks, handbooks, manuals). Everyone seems to want to get into the act in one way or another. It is interesting to note, however, that the “perpetrators” of this institutional acquisition reform do not see it in the same light as acquisition reform legislation. But, I recognize the lesson that King Canute was trying to teach when, in the apocryphal anecdote, he had his throne taken to the sea and ordered the tides not to come in. They did anyway. Legislators will legislate, it’s what they do. Regulators will regulate, it’s what they do. Policy makers will policymake, it’s what they do. None of them will willingly give up their rice bowls. Let’s get back to Soylent Green. Better Buying Power (BBP)? The Honorable Mssrs. Carter and Kendall were responsible for BBBP, in all its iterations. Did that rise up from the trenches? Or, was it handed (or pushed) down from above? Isn’t this a bit like the pot calling the kettle black? If you will permit the adding of a single letter to a line of Hamlet by William Shakespeare, "The laddy doth protest too much, methinks." [Note: Refer to Augustine’s Laws, Law Number L: The average regulation has a life span one-fifth as long as a chimpanzee's and one-tenth as long as a human's, but four times as long as the official's who created it.] Well, whichever way you look at it (i.e., upside, downside, sidewise) it is all more work for the acquisition professionals that must do the daily work of buying supplies and services for the Government. If you want to have an idea of how all of this acquisition reform weighs us down, then take a look at William Blake’s illustration “Christian Reading in His Book” for John Bunyan’s The Pilgrim's Progress. It will depend on how many pixels the image you find has, but it looks to me that he is reading the FAR. Who are the Soylent Green? Not the policymakers, but the people in the trenches, doing the hard work of acquisition on a daily basis, day in and day out, week in and week out, month in and month out, year in and year out. The contract specialist, contract negotiator, contract administrator, cost or price analyst, purchasing agent or procurement analyst just trying to get the job done. These are, for the most, part the unsung heroes and heroines of acquisition reform. These are the ones who, through innovation and personal initiative reform that acquisition process, one acquisition at a time. And, if we are lucky, or clever, are able to pass successes along to others. As acquisition professionals, we must pass on our successes, and failures, to others, so that they may join in the fruits of success, and avoid the pitfalls of failure. You cannot count on “Lessons Learned,” alone. How often do lessons learned go unread and unlearned? You cannot count on “Best Practices,” alone. How often do best practices, go unread and unpracticed? Share with others. Share quickly. Share often. Share wherever you can. A final thought. The absolute final thought. I’m sorry, I can’t help myself. I don’t care about King Canute: Don’t legislate. Don’t regulate. Just leave us alone to do our work as best we can.

Had you ever speculated on why April Fools’ Day seems to be such an important day for federal acquisition? After all, consider some of the regulatory and policy issuances on that day: The Federal Acquisition Regulation (FAR) became effective on April Fools’ Day (1984). The Federal Aviation Administration became exempt from the FAR on April Fools’ Day (1996). The Office of Federal Procurement Policy (OFPP) memorandum on “Protests, Claims, and Alternative Dispute Resolution (ADR) as Factors in Past Performance and Source Selection Decisions” was issued on April Fools’ Day (2002). Army Federal Acquisition Regulation Supplement (AFARS) Revision #25 was issued on April Fools’ Day (2010). FAR Case 2010-015 on the Women-Owned Small Business (WOSB) Program was published in the Federal Register on April Fools’ Day (2011). No doubt a little research would provide a number of additional examples. Frankly, if it were me, April Fools’ Day would probably be the last day that I would pick for issuing important regulations or policy statements. That is one day that I would avoid like the plague. [Note: The last statement is not technically correct, I would go to greater extremes to avoid the plague than to publish an acquisition policy or procedure on April Fools’ Day.] Why not just wait a day, and avoid all the innuendo and snickering? After all, consider, April has 29 other days that are perfectly suitable for issuing regulations, policies, procedures, guidance and information. Comparison of Major Contract Types For example, on Monday, April 25, 2016, the Defense Acquisition University/Defense Systems Management College updated the Acquisition Community Connection with a revised version of its Comparison of Major Contract Types (i.e., Comparison of Major Contract Types - April 2016). [For those who would like a direct link: https://acc.dau.mil/CommunityBrowser.aspx?id=214513.] The new version better aligns with the terminology in the Contract Pricing Reference Guides, updates the charts on the reverse, and adds a chart on “Achieving a Reasonably Challenging but Achievable (RCA) Target Cost,” one of topics discussed extensively in the new Guidance on Using Incentive and Other Contract Types. Over the years, various versions of the “Comparison” have been fairly popular (i.e., 94,863 Page Views and 80,840 Attachments Downloaded. Although, given the number of personnel in the Defense Statutory Acquisition Workforce Contracting Career Field, 29,690 as of the 2nd quarter of 2015, those Lifetime Activity numbers may not be all that high, relatively speaking. The April Fools’ Day Announcements for 2016 So, it can be done. However, this April Fools’ Day (2016) Defense Procurement and Acquisition Policy (DPAP) elected to issue two important pieces of procedures/guidance to the Defense Statutory Acquisition Workforce: Guidance on Using Incentive and Other Contract Types (April 1, 1016). Department of Defense Source Selection Procedures (SSP) (April 1, 1016). The Guidance Both documents have their warts. For instance, the Guidance incorrectly identifies one of the two statutory references for limitations on negotiation of price or fee. The good news is that thee one applicable to the DoD was identified correctly. Running the Spelling and Grammar checker one last time would not have been amiss. Warts aside, the results of this Better Buying Power (BBP) are somewhat disappointing. The Specific Action in the USD(AT&L) memorandum “Implementation Directive for Better Buying Power 2.0 - Achieving Greater Efficiency and Productivity in Defense Spending” was, “Director, DP will provide a draft policy guidance document on the use of incentives in contracting to the BSIG for review by July 1, 2013. The starting point for this document will be the DoD and NASA Guide, “Incentive Training (sic) Guide,” originally published in 1969.” For those of you unfamiliar with the Incentive Contracting Guide, it was the last of a number of such guides published in the 1960s. That particular version of the Guide was 252 pages. By comparison, the new Guidance is 41 pages. About 40 % of the Guidance is devoted to negotiation of fixed-price incentive (firm target) (FPIF) contracts in a sole-source environment a discussion of Reasonably Challenging but Achievable Target Cost (RCA), which go hand-in-hand. The coverage for Time and Materials/Labor Hour (T&M/LH) Contracts amounts to a paltry nine (9) lines. Ask yourself these two questions, “How many sole-source FPIF contracts does the Department award? If ‘T&M is the least preferable contract type,’ where should the emphasis have been placed?” For those of you who need guidance on structuring multiple incentive contracts the DOD and NASA Guide: Incentive Contracting Guide 1969 may be a better bet than the new Guidance. The good news is that it is still available on the Defense Acquisition University’s Acquisition Community Connection. [For those who would like a direct link: https://acc.dau.mil/CommunityBrowser.aspx?id=189615.] The Procedures The updated Source Selection Procedures are more than 505 longer than the previous version. The Procedures would have benefited from fact checking, copy editing and proof reading. Another warts issue. Warts aside, for those of you who will be involved in DoD source selections that meet the thresholds in the Procedures, you will want to give it a thorough read. Among other things, you will see some new descriptions of adjectival ratings and a new source selection procedure in APPENDIX B, “TRADEOFF SOURCE SELECTION PROCESS: SUBJECTIVE TRADEOFF AND VALUE ADJUSTED TOTAL EVALUATED PRICE (VATEP) TRADEOFF.” The latter came about as the result of USD(AT&L) memorandum “Implementation Directive for Better Buying Power 2.0 - Achieving Greater Efficiency and Productivity in Defense Spending.” Under the heading of Better define value in “best value” competitions there was a Specific Action, “Director, DP will review the ‘Process Manual’ developed by the joint Service team led by the Air Force and present a recommendation for adoption with any recommended changes to the BSIG by July 1, 2013.” You need to read the entire section to understand the direction. No doubt you will see a good deal of discussion about VATEP percolating up. Understand that although the Guidance and Procedures were issued on April Fools’ Day, they are no joke. Read them carefully, and implement them wisely.

This post is not really so much about misunderstanding the missing words, but the misunderstanding that is created by the missing words when read or hear "All contractors must be treated the same" or "All offerors must be treated equally", or such similar sentences. It is the part that should come after, but in many cases does not, that concerns me. In the GAO Bid Protest Annual Report to Congress for Fiscal Year 2014 (B-158766, GAO-15-256SP), November 18, 2014, Susan A. Poling, General Counsel of Government Accountability Office, wrote: [Well, at least she signed. Keep in mind that Washington, DC is a place where people write letters they don’t sign, and sign letters they don’t write.] My concern is with the last of the four reasons “unequal treatment.” What’s wrong with that? What's wrong with not treating offerors equally? Where in the Federal Acquisition Regulation (FAR) does it say that all prospective contractors or all offerors or all contractors must be treated equally? Does it even make sense to treat all prospective contractors or all offerors or all contractors equally? Similarly, in recent conversations I’ve heard contracting officers make similar statements, such as “all contractors must be treated equally” or “all offerors must be treated the same.” I would ask the same questions that I asked concerning the GAO statement. What the comments of the GAO and of the contracting officers have in common is the underlying concept that everyone must be treated equally, must be treated the same. Does that make sense? At first blush, it may. After all, that’s fair, isn’t it? We were all reared being taught that we should be fair. That’s why in kindergarten everyone got equal access to the toys. But, let’s explore that concept with a simple example. Let’s say that you are a contracting officer conducting a source selection IAW FAR Part 15, and it is time to conduct discussions with offerors in the competitive range. You have two offerors in the range Acme and Beta. You decided to hold discussions with Acme first. Your biggest concern with Acme’s proposal is the price, which was 17 percent above the Government estimate. In discussions you told Acme that its price was too high, significantly so, and that Acme needed to sharpen its pencil prior to final proposal revisions. Now, it is time to hold discussions with Beta, which has a price 17 percent below the Government estimate. What do you say to Beta? Well, if all offerors "must be treated the same," you must tell Acme that its price is too high, significantly so, and that Beta needs to sharpen its pencil prior to final proposal revisions. Ridiculous you say? Absolutely! But, it is the ultimate conclusion, if all offerors must be treated the same, but only if. However, all offerors need not be treated the same. What does the FAR have to say on the subject? The FAR requires that contracting officers conduct business with integrity, fairness, and openness. Specific to this issue is FAR 1.102-2( c )(3): What the GAO or contracting officers mean, or should mean, when they say all offerors and contractors must be treated the same or treated equally relates to the words that are typically left unsaid, but, hopefully meant (i.e., "in like circumstances"). Let’s go back to what the GAO said about unequal treatment. The footnote that was omitted above: The issue, then, is not unequal treatment, but unequal treatment in like circumstances. That is why in our fictitious negotiation the contracting officer will actually tell Acme that its price is too high and Beta that its price is too low. In another protest, in another footnote, GAO gives another explanation: To give you another example, from a different source, you can see this issue addressed in Federal Procurement Policy Administrator Dan Gordon’s “Myth-Busting”: Addressing Misconceptions to Improve Communication. The memorandum discusses various myths, or misconceptions, about Government-Industry relations. The first misconception was “We can’t meet one-on-one with a potential offeror.” The fact is described as Government officials can generally meet one-on-one with potential offerors as long as no vendor receives preferential treatment. The discussion, in part states: If the FAR required that we treat all prospective contractors the same, we would have to provide one-on-one meetings with all. But we don’t have all the time in the world, so we must marshal our resources accordingly. Instead of providing one-on-one meetings with all, we provide them to the prospective offerors that have the potential to successfully compete, not to every Tom, Dick, and Harriet that doesn’t have a “snowball’s chance”. [That last bit is a technical term.] I know that this makes some contracting officers, and many lawyers, nervous, but it is the right and proper thing to do. So, next time somebody says that all prospective contractors or all offerors or all contractors must be treated the same, or must be treated equally, look for the missing words, and think about whether the speaker is interpreting them correctly.

Federal Acquisition Circular (FAC) 2005-73, effective May 29, 2013, eliminated the Truth in Negotiations Act (TINA). Now that I have your attention, the FAC did not eliminate the TINA. What the FAC did was to rename The TINA “Truthful Cost or Pricing Data”. This was just one of a number of changes to the Federal Acquisition Regulation (FAR) that resulted from positive law codifications. Let’s discuss positive law codification of Public Laws 107-217 and 111-350 which were recently incorporated into the Federal Acquisition Regulation (FAR) at FAR 1.110. The former was revised, codified, and enacted as title 40, United States Code, Public Buildings, Property, and Works, and the latter was revised, codified, and enacted as title 41, United States Code, Public Contracts. For those of you who are unfamiliar with positive law codification, a few words from Office of the Law Revision Counsel of the United States House of Representatives, the office responsible. As a result of the two positive law codifications there are a number of changes to the FAR in terminology and statutory references. In the loose-leaf edition, the circular is 614 pages long. As an example, the Truth in Negotiations Act is now Truthful Cost or Pricing Data, at 41 U.S.C. chapter 35. From an historical perspective, the “Truth in Negotiations Act” was not the Truth in Negotiations Act. Public Law 87-653 doesn’t even use the term “truth” in its text. Early authors used various terms, in addition to TINA, to refer to the act (e.g., “Defective Pricing Data Statute," "Defective Pricing Law," "Truth in Negotiations Statute" and “Truth-in-Negotiating Certificate"). (See Alan E. Kushnick’s Equitable Reduction Under the Defective Pricing Statute: Public Law 87-653, Santa Clara Law Review, 1-1-1968.) In some instances the only change was dropping the word “Act”: Anti-Kickback Act is now Kickbacks Buy American Act is now Buy American Drug-Free Workplace Act is Drug-Free Workplace Office of Federal Procurement Policy Act is now Office of Federal Procurement Policy In other instances the changes were more substantial: Brooks Architect Engineer Act is now Selection of Architects and Engineers Contract Disputes Act of 1978 is now Contract Disputes Contract Work Hours and Safety Standards Act is now Contract Work Hours and Safety Standards Davis-Bacon Act is now Wage Rate Requirements (Construction) Federal Property and Administrative Services Act of 1949, Title III is now Procurement Javits-Wagner-O'Day Act is now Committee for Purchase from People Who Are Blind or Severely Disabled Miller Act is now Bonds Procurement Integrity Act is now Restrictions on Obtaining and Disclosing Certain Information Service Contract Act of 1965 is now Service Contract Labor Standards Walsh-Healey Public Contracts Act is now Contracts for Materials, Supplies, Articles, and Equipment Exceeding $15,000. A word of caution and a recommendation for all of you who use the online FAR and search electronically. Out of long time habit, and a desire to know what specific changes are made in each FAC, I still maintain my loose-leaf version of the FAR. [Note: I am not a (total) Luddite. I do use the online versions of the FAR at Acquisition Central and the FARSite.] As such, I know the changes that were made as a result of the FAC under discussion were not limited just to changes in the names of statutes and their references. As a result of law revisions, there were other changes made to terminology. For example, for all of you Competition Advocates out there, you are no longer Competition Advocates; you are now Advocates for Competition. An electronic search for “Competition Advocate” will return zero hits. You had best know that Advocates for Competition are found in FAR Subpart 6.5, the same place where you used to be able to find Competition Advocates. I mention this as a word of caution for when you do electronic searches. What you may remember as a term you used routinely, and could find easily, may no longer exist. The recommendation would be to consider keeping your own loose-leaf version of the FAR. I do not have high hopes that this recommendation will be embraced wholeheartedly by one and all. Finally, you should know that there was a Wifcon discussion about this topic in May: http://www.wifcon.com/discussion/index.php?/topic/2569-fac-2005-73-positive-law-codifications-of-title-41-usc/#entry22195. If you had not done so previously, you might look in.

Experience is the teacher of all things. ― Julius Caesar, Commentarii de Bello Civili (Commentaries on the Civil War), (c. 52 B.C.). In a previous Blog, I said: What am I suggesting by that? In acquisitions exceeding the simplified acquisition threshold past performance shall be evaluated, unless waived by the contracting officer. (FAR 15.304( c )(3). In addition to, and separate from, past performance the source selection should evaluate “Experience.” Past performance deals with how well an offeror has performed prior efforts. Experience deals with whether the offeror has performed such efforts. Absent past performance information, the Federal Government may not treat the offeror favorably or unfavorably. Absent experience, the Federal Government may evaluate an offeror unfavorably, if the evaluation factors for award in the solicitation so state. Can you do that? According to the Comptroller General of the United States, you can. Let me provide you pertinent parts from just two Government Accountability Office protest decisions that demonstrate that you can. Commercial Window Shield, B-400154, July 2, 2008 Shaw-Parsons Infrastructure Recovery Consultants, LLC; Vanguard Recovery Assistance, Joint Venture; B-401679.4, March 10, 2010 You remember the concern expressed by Frere Two? The approach described above, addresses his concern. Well, it doesn't address his concern about why they wrote the regulation is written in such a manner. Unfortunately, the answer to that is the same as Inspector Javert gave to Jean Valjean in Les Misérables, “Right or wrong, the law is the law and it must be obeyed to the letter.” But, it does provide a way for him to work within the law to achieve, essentially, the same effect.

Trust me, my tongue was not in my cheek when I suggested that past performance information be ignored. Let me provide some background. I was invited to visit the group responsible for the FAR Part 15 Rewrite to discuss the “Neutral” issue, and a number of other comments that I had made in a series of public comments. The group made the change from “neutral” to “may not be evaluated favorably or unfavorably on past performance.” We discussed the ways to achieve that result. I addressed one in my original Blog entry, which appears to have created some consternation. There is another way to achieve the same effect; when comparing two offerors directly, give both offerors the same rating as the offeror with past performance information. (This may also cause some consternation among readers.) Either way, the purpose was to get away from neutral. I admit that my personal preference is for the approach originally presented in the Blog entry. Recall the language from the Federal Register, Volume 62 September 30, 1997 (62 FR 51226) The latter sentence was to address the two approaches that could adequately address the statutory requirement, and allow the contracting organization to make a choice. Unfortunately, the FAR does not provide the alternatives that had been discussed.

Interestingly enough, the FAR defines neither "Past Performance" nor "Past Performance Information". However, in the discussion of past performance evaluation, under the overall topic of proposal evaluation, FAR 15.305(a)(2) lays out the type of information that can be considered. For instance, FAR 15.305(a)(2)(ii) states, in part: That coverage, alone, gives fairly broad leeway. However, when combined with FAR 15.305(a)(2)(iii), there is much more: As the old joke goes, "There has to be a pony in there somewhere." But, there is always the potential that an offeror may have no relevant performance history. Presuming that you don't want to buy a pig in a poke, what's to be done? As hinted, at the end of the Blog post, I believe the answer is "Experience," which will be adressed in an upcoming Blog post By the way, source selection is not the only area where this is a potential concern, it is also relevant to contractor responsibility determinations: FAR 9.104-2 deals with special standards.

BLUF: No. Or, just maybe, it depends. [For those of you who are unfamiliar with BLUF, it stands for “Bottom Line Up Front”. If you’re required to give presentations to high ranking officials on a repetitive basis, you learn their foibles. Some will listen patiently to your entire presentation, no matter how tedious. Others always jump to the Conclusion slide, just so they’ll know what’s coming. For the latter, we would put the conclusion on the first slide after the title slide to save time. But, you can’t really call it the Conclusion at that point, so it becomes BLUF.] In a previous Blog, I had mentioned that in acquisition we have a tendency to use a number of words and terms not in the Federal Acquisition Regulation (FAR). One such was the term “neutral,” as used in past performance. Let’s explore that term, and its use in source selection evaluations, a little more, beginning with the term itself. If you look up the term “neutral” in a dictionary, you will commonly see a number of meanings (e.g. non-belligerents in war, arbiters or mediators between parties, pale colors). I looked in a number of dictionaries (i.e., Webster’s New College Dictionary, The American Heritage Dictionary of the English Language, Oxford Dictionary of English, New Oxford American Dictionary, Black’s Law Dictionary). For instance, the third definition in Webster’s New College Dictionary: Interestingly enough, the definitions that were most appealing to me were the electrical and mechanical definitions of neutral, neither positively or negatively charged and gears in a disengaged position. But, what does that mean for evaluation of past performance in source selections? Here are the five most recent protest decisions of the Comptroller General that discuss “neutral”. Have you been enlightened? Speaking for myself, I wasn’t. Ask yourself this question, “Now that a Neutral Rating has been assigned, how is that rating used when comparing various offerors in the evaluation of past performance?” Without a definition or a method of application, what is a rating of “neutral”? If you are unable to answer those questions, consider following the FAR, which doesn’t use “neutral”. As discussed in a previous blog, the term neutral appears zero times in the Federal Acquisition Regulation (FAR). The phrasing used in FAR 15.305(a)(2)(iv) is “may not be evaluated favorably or unfavorably on past performance.” The regulatory requirement is derived from 41 U.S.C. 405(j)(2), now 41 U.S.C. § 1126 - Policy regarding consideration of contractor past performance. The requirement in the United States Code was a result of Section 1091, Policy Regarding Consideration of Contractor Past Performance, of Public Law 103-355, ‘‘Federal Acquisition Streamlining Act of 1994’’. So, where did the term neutral come from? The FAR itself, of course, that is the FAR as it was worded prior to Federal Acquisition Circular (FAC) 97-02, issued on September 30, 1997. The requirement was first written into the FAR at 15.608(a)(2) (iii) as, “Firms lacking relevant past performance history shall receive a neutral evaluation for past performance.” Over the few short years that the term “neutral” appeared in the FAR, it caused a great deal of confusion, and litigation. The confusion can be seen in both the first and second sets of comments to the FAR Part 15 Rewrite (i.e., Federal Register, Volume 62, May 14, 1997 (62 FR 26639) and Federal Register, Volume 62 September 30, 1997 (62 FR 51226)). Here is the resolution in the latter: What does “may not be evaluated favorably or unfavorably” or “neither rewards nor penalizes the offeror” mean? It would seem to me that the only way to achieve that in a direct comparison between two offerors, is that past performance would not be considered when one of the offerors has a neutral rating. Ignore it. Think about it. If you rank an offeror with the neutral rating lower than one with a good record of past performance on that criterion, you have treated the one with the neutral rating unfavorably by comparison. On the other hand, if you give them the same rating, which I have seen, you may be treating them favorably in comparison to other offerors. Either of these approaches is inconsistent with law and regulation. So, the only solution is to ignore past performance in any head-to-head comparison when one of the offerors does not have a record of relevant past performance or for whom information on past performance is not available. That is the only way to ensure they are not evaluated favorably or unfavorably. The Comptroller General does not necessarily seem to see it my way. According to the United States Government Accountability Office (Wolf Creek Federal Services, Inc., B-409187,B-409187.2,B-409187.3: February 6, 2014, United States, in footnote 13): However, if the SSA considered that HMS’ rating of moderate provided benefits wasn’t Wolf Creek treated unfavorably by comparison? In the case that Wolf Creek cited to defend its case, West Coast Unlimited, the protestor had unsuccessfully argued that to meet the FAR requirement, they should receive the same rating as the successful offeror, to which the Comptroller General responded that would “require the agency to evaluate West Coast's lack of relevant past performance favorably, contrary to the specific language of the regulation, which requires a neutral (sic) evaluation.“ [Note that the Comptroller General’s FAR was not up to date, as the RFP was issued the year after deletion of “neutral,” so the language should have been “may not be evaluated favorably or unfavorably on past performance.”] The evaluation approach put forth as a solution in West Coast is somewhat different than what I suggest, which has not been addressed by the Comptroller General. For those of you who are concerned about my approach giving an unfair advantage to an offeror with no past performance information, let me suggest, as Mr. McGuire did to Benjamin in The Graduate, “I just want to say one word to you. Just one word.” In this case the word is not “Plastics,” it’s “Experience.” But not today, that is a subject for another Blog.

I had said that I wasn't going to look for an older version of the Chart, and I kept my word. However, while searching for a vintage document on multi-year contracting, I stumbled across an older version, June 1977. That particular version, Types of Contracts (A Comparison and Summary), was published by the Department of Procurement and Production, Air Force Institute of Technology (AFIT). In addition to contract types, there are "Other Contractual Devices (Special Uses)," which includes Letter Contracts and Indefinite Delivery. On this Chart, there are four rows of information (i.e., Application and Essential Elements, Limitations, Suitability, ASPR). [Note: For those of you not old enough to remember the ASPR, it was (is) the Armed Services Procurement Regulation. For those of us in the Department of Defense back then, it is what we had before the FAR and the DFARS, it is what we had before their predecessor, the Defense Acquisition Regulation (DAR), it was the reason that we created our contract file documentation: "To cover your ASPR."]

Remember the old TV commercials for toys that began, “Be the first on your block . . . ,” and then inserted the name of some new toy, doll, gun or game? Well, you can forget about that in this case. For those of you who have not already done so, I’m recommending that you consider downloading a document that has already been downloaded more than fifty thousand times since published on the web, and nearly four thousand times since it was last updated in January 2014. [As of today, the precise numbers were 52440 for Lifetime Activity and 3786 for Activity for the Last 90 Days. This is a very popular page, listed as “Popularity of this page: #1 of 85 items.”] The document I’m referring to is a chart entitled “Comparison of Major Contract Types,” published by the Defense Systems Management College (DSMC), which is a part of the Defense Acquisition University (DAU). The Chart can be found on Defense Acquisition University (DAU) Acquisition Community Connection (ACC) Contract Cost, Price & Finance website at: https://acc.dau.mil/CommunityBrowser.aspx?id=214513 Use that link, as older versions of the chart can be found in many, many places. You'll want the most current version. As described on the Defense Acquisition University (DAU) Acquisition Community Connection (ACC) Contract Cost, Price & Finance webpage: Now, that description tells you what is on the reverse, but not what is on the obverse (i.e., the front). For those of you who like to do on-line shopping, and check those little boxes so that you can do product comparison, this is just the thing. You have all the information you need for comparison in one small document. Well, small, if you consider 11 x 17 to be small. The first row across the top of the Chart lists the ten contract types to be compared (i.e., Firm-Fixed-Price (FFP), Fixed-Price Economic Price Adjustment (FPEPA), Fixed-Price Incentive Firm Target (FPIF), Fixed-Price Award-Fee (FPAF), Fixed-Price Prospective Price Redetermination (FP3R), Cost-Plus-Incentive-Fee (CPIF), Cost-Plus-Award-Fee (CPAF), Cost-Plus-Fixed-Fee (CPFF), Cost or Cost-Sharing (C or CS), and Time & Materials (T&M)). The first column down the left hand side of the Chart describes the seven items of information to be compared (i.e., Principal Risk to be Mitigated, Use When . . ., Elements , Contractor is Obliged to:, Contractor Incentive, Typical Application, and Principal Limitations in FAR/DFARS Parts 16, 32, 35, and 52). The Chart is not new. I did a quick check through some files in what I laughingly refer to as my office, and found a copy dated NOV 84, almost 30 years ago. I decided not to look for an older version, as it might make me concerned about my age. Back then it was called “Types of Contracts.” The older version only compared four items of information (i.e., Description, Elements, Application, and Limitations). That Chart doesn’t say so, but I suspect the information came from the Armed Services Pricing Manual (ASPM) Vol.1. DoD, 1986, as the Contract Pricing Reference Guides didn’t exist back then. The current version of the Charts dates back to 2008, when it was revamped, and published electronically. The Chart is updated, but not periodically, only when changes to the Federal Acquisition Regulation (FAR) or the Defense Federal Acquisition Regulation Supplement (DFARS) render content outdated. For example, the Chart was not updated in 2009, but was updated twice in 2013. [it could have been three time in 2013, as the change that drove the January 2014 version occurred in December 2013.] You need to check back from time to time to see whether a new version of the Chart has been posted. There are two files on the website that you can download, VIEW and PRINT. You may need to download the latter, depending on the capabilities of your duplex printer. Of course, that presumes you have a duplex printer. So, maybe you can’t be the first on your block, this time, but don’t be the last.

joel hoffman points out that the term "Procuring Contracting Officer" is defined in the DAU Glossary, and appears in the DFARS Procedures, Guidance and Information (PGI), and in other publications. Actually, in the latest edition of the Glossary, the Fifteenth Edition, the term that is defined is "'Procuring' Contracting Officer." The subtle difference is that the Defense Acquisition University has caught on to the need to put quotation marks around the word "Procuring," as it is not the standard term. Additionally, I would suggest you all take a look at the new Disclaimer that appears on page vii of the Fifteenth Edition. The Disclaimer addresses the fact that the Glossary may define words differently than in the Federal Acquisition Regulation (FAR). Joel pointed out that Procuring Contracting Officer appears in the DoD PGI. In point of fact, it also appears in the DFARS. However, of the 1535 times "contracting officer" appears in the DFARS, only six are "procuring." In the PGI, it's 25 out of 620. As previously pointed out, the term appears in only one instance out of the 5,465 in the FAR. Perhaps, what we have here is a situation where the Defense Acquisition Regulations Council and the Civilian Agency Acquisition Council need to provide a little more training for their proofreaders and editors. As an aside, if you read extensively in our business, you will find that PCO, in addition to standing for "procuring contracting," also stands for "procurement contracting officer" and "principal contracting officer," and who knows what all else.

I am afraid that the confusion KO2BE suffered from was the result of the failure of the instructor to properly distinguish "cost or pricing data" from "data other than cost or pricing data." The definitions, by the way, are actually relatively new, probably having entered federal Government service about the same time as KO2BE, October 1, 2010. That change to the FAR was six years and twenty-three days in the making. It was highly controversial with industry. I remember attending the special public session that was held on the change, where several industry speakers rose to the microphone to adamantly oppose the change because it gave too much power to contracting officers. In reality the change was designed to help contracting officers better understand the full extent of their authority to ask for data other than cost or pricing data, particularly when doing commercial item acquisition. So, the representatives from the FAR Council argued, equally adamantly, that the changes, for the most part, were only rearrangements of existing coverage, and realignment with statutory language. Although much of the data is the same, I would distinguish "cost or pricing data" from "data other than cost or pricing data" in these ways. First, "cost or pricing data are required to be certified, which is when they become "certified cost or pricing data." "Data other than certified cost or pricing data" are, obviously, not certified. Second, "data other than certified cost or pricing data" are obtained, for the most part, when "cost or pricing data" are not (see FAR 15.403-1 prohibition on obtaining certified cost or pricing data. I include that "for the most part" because of FAR 15.402 Pricing policy, where at (a)(1) it states that the contracting officer Third, according to the definitions in FAR 2.101, "cost or pricing data are "facts," whereas, "data other than certified cost or pricing data" also contain "judgmental information." The latter is why you have the policy at FAR 15.402(a)(1). Would "cost and (sic) pricing information," as suggested, be a better term than "data other than certified cost or pricing information"? I won't address the issue, except to point out that the term "data other than certified cost or pricing data" was inserted in the FAR in place of the term "information other than cost or pricing data. That change, and a number of others, came about as a result of FAR Case 2005-036, with a final rule appearing in FAC 2005-45, dated August 30, 2010. The FAC was a huge change to the regulation, affecting 296 pages, although not all of those pages are attributable to the one case. Here is the explanation of the change that appeared in the FAC: The changes to terminology were to better align to the statutory terms. FAR 2.101 refers the reader to 10 U.S.C. 2306a(h)(1) and 41 U.S.C. 254b. Note, however, that the second reference is outdated, and the information is now in 41 U.S.C. Chapter 35. Did the rule "eliminate confusion and misunderstanding"? Apparently not, at least not entirely. How about the suggested "uncertified cost and (sic) pricing data"? My concern with that would be whether it would create confusion with "cost or pricing data," which are require certification, but have just not yet been certified. Having lived the language on both sides of the change, I believe that we are better off with the language as changed. Could the language be improved? Well, that is for another day, and another FAR case.

The Federal Acquisition Regulation (FAR) is part of 48 CFR, arguably the most important part. The FAR is codified at 48 CFR Chapter 1. The focus of the blog posting is to point out that people in our acquisition business routinely use a number of terms as if they are in the FAR, when they are not, essentially ignoring the actual FAR terms. I suspect that in many cases the people who use the terms believe them to be in the FAR. There are many such terms. As apsofacto points out, "best and final offers" (BAFO) is another example, appearing in two rogue instances (i.e., FAR 22.404-2( b )(5) and FAR 22.404-4( c)). BAFO was eliminated from the FAR in the FAR Part 15 Rewrite in 1997. The current term is "final proposal revisions." It is somewhat interesting to note that there is one correct usage in FAR Part 22 (i.e., FAR 22.1003( c )(3)(I)). Apparently, the left hand doesn't know what the right hand is doing. Perhaps the most interesting term is one I elected not to use, "procuring contracting officer" (PCO), which appears only once in the FAR (i.e., FAR 3.104-4(d)(1)(I). That makes it one instance out of 5,465. According to FAR 2.101, the correct term is "contracting officer," unless you need to specify either "Administrative contracting officer (ACO)" or "Termination contracting officer (TCO)."

In acquisition we have a tendency to use a number of “nonexistent" words and terms. Well, that might be overstating the issue somewhat, so let’s try again. In acquisition we have a tendency to use a number of terms that are not defined in the Federal Acquisition Regulation (FAR), but are in the FAR. I have no particular problem with that. However, I do have a wee bit of a problem when people in our business use terms as if they were in the FAR, even though they are not there. My concern is compounded by the fact that the people who use the terms don’t even realize that they are not in the FAR. I often wonder whether this is some strange twist of thinking based on the Christian Doctrine. Independent Cost Estimate (ICE) – Appears zero times in the FAR. The terms used in the FAR, in descending order are: cost estimate(s) (27 times), independent Government estimate (4 times), and independent Government cost estimate (3 times). Of the 27 cost estimate references, 15 are to contractor or subcontractor cost estimates. The only requirements on the Government to actually create estimates are for independent Government estimates at FAR 36.203(a) and ( b ) and FAR 36.605(a). Splitting Requirements, as used in avoiding the simplified acquisition threshold – Appears zero times in the FAR. The term used in FAR 13.003©(2) is break down Source Selection Plan – Appears zero times in the FAR. The only reference to a related document in the regulation is at FAR 15.303( b )(2), where the source selection authority shall “Approve the source selection strategy or acquisition plan, if applicable, before solicitation release.” Neutral, as used in past performance – Appears zero times in the FAR. The term used in FAR 15.305(a)(2)(iv) “may not be evaluated favorably or unfavorably on past performance.” Warrant, as used in contracting officer authority – Appears once, incorrectly, at FAR 33.210 Contracting officer’s authority. The term used in FAR 1.603 and elsewhere is “Certificate of Appointment.” The good news, such as it is, is that the vast majority of the people involved in acquisition don’t even realize that the words and terms are not in the FAR. And, if both the sender and the receiver are ignorant, well, they say ignorance is bliss. Those who do know, try, usually unsuccessfully, to correct the errors. On occasion, the FAR Council will address the issue, through capitulation. For instance, in what was called the FAR Part 15 Rewrite, “Greatest Value” was changed to “Best Value,” and “Work Statement” was changed to “Statement of Work.” These are what we generally refer to as happy-to-glad changes, but they did align the FAR with current usage. But, don’t necessarily count on it happening for your pet term any time soon. For example, the term “neutral” was eliminated from the FAR in 1997, in favor of complying with the statute. Imagine that. And, as for the venerated “warrant,” the term “Certificate of Appointment” goes back to the Armed Services Procurement Regulation (ASPR) 1-405 Selection, Appointment, and Termination of Appointment of Contracting Officers. Under the ASPR, contracting officers were appointed using a DD Form 1539, Certificate of Appointment. Now, under the Federal Acquisition Regulation (FAR), contracting officers are appointed using a SF 1402 Certificate of Appointment. Having lasted over half a century, I suspect it is here to stay.