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Vern Edwards

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Everything posted by Vern Edwards

  1. Bid Protests: GAO or the Courts

    @sdvr Very interesting observation. Worthy of further research.
  2. Price Proposals for A-E IDIQ Contracts

    Emphasis added. Under the Brooks Act, cost or price cannot be a consideration in any A-E selection. For new contract awards, the Act is implemented by FAR Subpart 36.6. However, I do not think that the procedures in FAR Subpart 36.6 apply to the "fair opportunity" process under FAR Subpart 16.5. I think that the "fair opportunities" procedure that you described in the above quotation complies with the Brooks Act, 40 USC Ch. 11. I see nothing in the statute that prohibits asking for price proposals from all competitors for a task order at the same time as "technical proposals," whatever those contain. (However, as for the "evaluation," you might want to consider whether your agency's procedure complies with 40 USC § 1103(c).)
  3. Bid Protests: GAO or the Courts

    Not every line in Part 15, but many lines in Subpart 15.3. There is no question in my mind that GAO was regulating in the guise of protest decision making, and that they were doing so before they had a statutory mandate to do so.
  4. Bid Protests: GAO or the Courts

    One factor in bid protests such as the one described in the blog post is the use of multiple year, multiple-award IDIQ contracts. Any company that is not among the winners in such a competition is effectively out of the market for five to ten years. With so many competitors and proposals (47 in the Department of Education case), it's easy for an agency to make a misjudgment or mistake, and a company cannot just shrug its shoulders at a loss. It could be a kind of suicide. Some of those protests are filed in the hope that the agency would rather relent and let them in than fight. The multiple year, long-term (five years or longer), multiple-award IDIQ contract, formally recognized by FASA in 1994, has changed acquisition in ways that most people simply do not understand. It is a costly method of contracting. It was supposed to be a labor-saving mechanism, but I don't know of any documented evidence of how well it has been, if at all. It has undermined acquisition planning, and there is no evidence that I know of that it has produced better overall value for the government. If ever a policy needed to be studied and assessed, it's multiple-award IDIQ contracting. If you think protest numbers are high, think what those numbers would be if there were no limit on task order protests. And that limit is not a benefit of multiple-award IDIQ contracting, per se, but to Congress's surrender to the reality of the acquisition chaos that began in the early 1980s and has since overwhelmed the process. In military terms, the federal acquisition process, which is based on a 19th Century process model, has been overrun by the realities of modern government. The survivors are hoping to get away by playing dead until the enemy leaves the battlefield. Our 19th Century acquisition system (statutes, regulations, policies, standard processes) cannot effectively support U.S. government operations in the 21st Century.
  5. Bid Protests: GAO or the Courts

    Such protests are outliers. They are not representative of the protest system or its effects. They distract from the real harm that has been done to the acquisition process by more than 50 years of GAO "case law" rule-making.
  6. Bid Protests: GAO or the Courts

    I don't think so. Those processes, often constructed on the basis of the FAR Part 15 Process Model, have been effected in the same way. To improve contractor selection and contract formation, we need to rethink them entirely, but that is beyond the imaginations of those presently in charge. I really have very few hopes.
  7. Bid Protests: GAO or the Courts

    What the First Financial decision shows, although you have to know some statutory, case law, and regulatory history, 1961 - present, in order to understand, is that the concepts and benefits of "negotiated" procurement and "best value" decision-making have been undermined by GAO decisions and subsequent regulatory issuances about clarifications and discussions during source selection, historically one of the most contentious of all protest issues. That history and its long-term systemic effect are discussed in the March issue of The Nash & Cibinic Report, in Postscript: The Rand Study of DOD Protests. The many GAO decisions were part of its "project" to perfect the concept of "competitive" negotiation by supplementing statute and regulation through case law development. The insidiousness lies in turning an administrative process into a confusing, wasteful litigative process.
  8. Bid Protests: GAO or the Courts

    Two points: 1. We need a protest system in order to convince industry that government contracting is conducted on the up and up. But there is a tradeoff between preventing government employees from going wild and delaying government operations. 2. The most significant effect of the protest system on acquisition is not delay of government operations, but the effect of (a) uncertainty about the rules and (b) tactics to avoid and mitigate the effects of litigation. That effect on acquisition is more insidious. For an example, see First Financial Associates, Inc. B-415713, B-415713.2: Feb 16, 2018. (March 2, 2018).
  9. Bid Protests: GAO or the Courts

    A large number of articles about GAO bid protests have been published in law reviews and legal newsletters. The one cited above is a drop in the bucket.
  10. Acquisition Mentoring Program Survey

    What does "more effective" mean? What is the definition of "effective" and how is it to be measured so that we can know when someone is more or less effective?
  11. Bid Protests: GAO or the Courts

    They did, and there aren't.
  12. FAR 46.705 Warranties

  13. Bid Protests: GAO or the Courts

    I think protests should be quick and inexpensive to resolve. For that reason, I prefer GAO to the COFC, and I would end the court's jurisdiction. I do not think there should be any appeal from a GAO decision, meaning that GAO should not entertain requests for reconsideration.
  14. How can we speed up the source selection process?

    Remember the ground rule: No rule changes.
  15. How can we speed up the source selection process?

    See the opening post:
  16. How can we speed up the source selection process?

    Instead of requesting "narrative" written proposals, develop a questionnaire that asks specific questions about performance and instructs offerors to respond with specific and concise answers. Instead of requesting "narrative" written proposals, require and evaluate 2-hour oral presentations. Eliminate all requirements for the preparation, submission, and evaluation of various "plans" with proposals--safety plan, personnel management plan, quality assurance plan, security plan, etc. Instead, work out the desired plan(s) with the contractor after award.
  17. How can we speed up the source selection process?

    See Marge Rumbaugh's 2015 article, "Why does source selection take so long?" http://read.nxtbook.com/ncma/contractmanagement/november2015/whydoessourceselection_feat.html
  18. How can we speed up the source selection process?

    Stop preparing and issuing draft RFPs.
  19. Signing Contractor Employees' Timecards

    p5tMike: In the context of your inquiry, what does anyone care what a "typical" COR delegation includes?
  20. @govt2310 In the age of the internet, I don't admire your request.
  21. 48 C.F.R. 15.804-3 (1990) CODE OF FEDERAL REGULATIONS TITLE 48—Federal Acquisition Regulations System CHAPTER 1—FEDERAL ACQUISITION REGULATION SUBCHAPTER C—Contracting Methods and Contract Types PART 15—CONTRACTING BY NEGOTIATION SUBPART 15.8—PRICE NEGOTIATION 15.804 Cost or pricing data. 15.804-3 Exemptions from or waiver of submission of certified cost or pricing data. (a) General. Except as provided in paragraphs (b) and (c) below, the contracting officer shall not require submission or certification of cost or pricing data when the contracting officer determines that prices are— (1) Based on adequate price competition (see paragraph (b) below); (2) Based on established catalog or market prices of commercial items sold in substantial quantities to the general public (see paragraph (c) below); or (3) Set by law or regulation (see paragraph (d) below). (b) Adequate price competition. (1) Price competition exists if— (i) Offers are solicited; (ii) Two or more responsible offerors that can satisfy the Government's requirements submit priced offers responsive to the solicitation's expressed requirements; and (iii) These offerors compete independently for a contract to be awarded to the responsible offeror submitting the lowest evaluated price. (2) If price competition exists, the contracting officer shall presume that it is adequate unless— (i) The solicitation is made under conditions that unreasonably deny to one or more known and qualified offerors an opportunity to compete; (ii) The low offeror has such a decided advantage that it is practically immune from competition; or (iii) There is a finding, supported by a statement of the facts and approved at a level above the contracting officer, that the lowest price is unreasonable. (3) A price is “based on” adequate price competition if it results directly from price competition or if price analysis alone clearly demonstrates that the proposed price is reasonable in comparison with current or recent prices for the same or substantially the same items purchased in comparable quantities, terms, and conditions under contracts that resulted from adequate price competition. (c) Established catalog or market prices. A proposal is exempt from the requirement for submission of certified cost or pricing data if the prices are, or are based on, established catalog or established market prices of commercial items sold in substantial quantities to the general public. In order to qualify for this exemption, the terms of the proposed purchase, such as quantity and delivery requirements, should be sufficiently similar to those of the commercial sales that the catalog or market price will be fair and reasonable. (1) “Established catalog prices” must be recorded in a form regularly maintained by the manufacturer or vendor. This form may be a catalog, price list, schedule, or other verifiable and established record. The record must (i) be published or otherwise available for customer inspection and (ii) state current or last sales price to a significant number of buyers constituting the general public (see subparagraph (5) below). (2) “Established market prices” are current prices that (i) are established in the course of ordinary and usual trade between buyers and sellers free to bargain and (ii) can be substantiated by data from sources independent of the manufacturer or vendor. (3) “Commercial items” are supplies or services regularly used for other than Government purposes and sold or traded to the general public in the course of normal business operations. (4) An item is “sold in substantial quantities” only when the quantities regularly sold are sufficient to constitute a real commercial market. Nominal quantities, such as models, samples, prototypes, or experimental units, do not meet this requirement. For services to be sold in substantial quantities, they must be customarily provided by the offeror, using personnel regularly employed and equipment (if any is necessary) regularly maintained solely or principally to provide the services. (5) The “general public” is a significant number of buyers other than the Government or affiliates of the offeror; the item involved must not be for Government end use. For the purpose of this subsection 15.804-3, items acquired for “Government end use” include items acquired for foreign military sales. (6) A price is “based on” a catalog or market price only if the item being purchased is sufficiently similar to the catalogor market-priced commercial item to ensure that any difference in prices can be identified and justified without resort to cost analysis. (7) If an item is substantially similar to a commercial item for which there is an established catalog or market price at which substantial quantities are sold to the general public, but the price proposed is not based on this catalog or market price (see subparagraph (6) above), the contracting officer may, if doing so will result in a fair and reasonable price, limit any requirement for cost or pricing data to those data that pertain to the differences between the items. When the difference between the catalog or market price of an item or items and the proposed total contract price is $100,000 or more, the contracting officer shall require submission of certified cost or pricing data to identify and justify that difference unless an exemption or waiver is granted. (8) Even though there is an established catalog or market price of commercial items sold in substantial quantities to the general public, the contracting officer may require cost or pricing data if (i) the contracting officer makes a written finding that the price is not reasonable, including the facts upon which the finding is based, and (ii) the finding is approved at a level above the contracting officer. (d) Prices set by law or regulation. A price set by law or regulation is exempt from the requirement for submission of certified cost or pricing data. Pronouncements in the form of periodic rulings, reviews, or similar actions of a governmental body, or embodied in the laws, are sufficient to establish the price. (e) Claiming and granting exemption. To receive an exemption under paragraph (c) or (d) above, the offeror must ordinarily claim it on Standard Form 1412, Claim for Exemption from Submission of Certified Cost or Pricing Data, when the total proposed amount exceeds $100,000 and more than one catalog item for which an exemption is claimed exceeds $25,000. When an exemption is claimed for more than one item in a proposal, a separate SF 1412 is required for each such item exceeding $25,000 except as otherwise provided in the solicitation. The contracting officer may grant an exemption and need not require the submission of SF 1412 when— (1) The Government has acted favorably on an exemption claim for the same item or similar items within the past year. In that case, except as otherwise directed by the contracting officer, the offeror may furnish a copy of the prior claim and related Government action. The offeror must also submit a statement to the effect that to its knowledge since the prior submission, except as expressly set forth in the statement, there have been no changes in the catalog price or discounts, volume of actual sales, or the ratio of sales for Government end use to sales in other categories which would cause a cumulative change in price exceeding $25,000; (2) Special arrangements for the submission of exemption claims have been made in anticipation of repetitive acquisitions of catalog items; or (3) There is evidence, before solicitation, that the item has an acceptable established catalog or market price or a price set by law or regulation. Evidence may include (i) recent submissions by offerors or (ii) the contracting officer's knowledge of market conditions, prevailing prices, or sources. (f) Verification. (1) When a prospective contractor requests exemption from submission of certified cost or pricing data, the contracting officer shall ensure that applicable criteria in either paragraph (c) or (d) above, as appropriate, are satisfied before issuing the exemption. (2) SF 1412 lists three categories of sales related to the established catalog price of a commercial item sold in substantial quantities to the general public: A, Sales to the U.S. Government or to contractors for U.S. Government use; B, Sales at catalog price to the general public; and C, Sales to the general public at other than catalog price. Although “substantial quantities” cannot be precisely defined (see subparagraph (c)(4) above), the following guidelines are provided for determining whether exemption claims submitted under the catalog price provision of SF 1412 meet the “substantial quantities” criterion: (i) Sales to the general public are normally regarded as substantial if (A) Category B and C sales are not negligible in themselves and comprise at least 55 percent of total sales of the item and (B) Category B sales comprise at least 75 percent of the total of Category B and C sales. (ii) Sales to the general public are rarely considered substantial enough to grant an exemption if (A) Category B and C sales comprise less than 35 percent of total sales of the item or (B) Category B sales comprise less than 55 percent of the total of Category B and C sales. (iii) When percentages fall between those above, the contracting officer should analyze the individual situation in order to determine whether or not an exemption is justified. (3) The contracting officer may verify or obtain verification (including audit or contract administration assistance) of the submitted data pertaining to catalog or market prices or prices set by law or regulation. Access to the prospective contractor's records is limited to access to the facts bearing directly on the exemption claimed. It does not extend to cost, profit, or other data relevant solely to the reasonableness of the catalog or proposed price. (g) Individual or class exemptions. The chief of the contracting office may authorize individual or class exemptions for exceptional cases when the contracting officer recommends that an exemption should be made, even though the case does not strictly meet all the criteria for catalog- or market-price exemption. The quantity and prices of actual commercial sales compared with prices offered to the Government, and price relationships as influenced by prevailing trade practices, are the important factors for consideration. The Government's need and the prospective contractor's resistance are not appropriate considerations. (h) Price analysis. Even though an item qualifies for exemption from the requirement for submission of certified cost or pricing data, the contracting officer shall make a price analysis to determine the reasonableness of the price and any need for further negotiation. Unless information is available from Government sources, it may be necessary to obtain from the prospective contractor information such as that regarding— (1) The supplier's marketing system (e.g., use of jobbers, brokers, sales agencies, or distributors); (2) The services normally provided commercial purchasers (e.g., engineering, financing, or advertising or promotion); (3) Normal quantity per order; and (4) Annual volume of sales to largest customers. (i) Waiver for exceptional cases. The agency head (or, if the contract is with a foreign government or agency, the head of the contracting activity) may, in exceptional cases, waive the requirement for submission of certified cost or pricing data. The authorization for the waiver and the reasons for granting it shall be in writing. The agency head may delegate this authority. When the agency head or designee has waived the requirement for submission of certified cost or pricing data, the contractor or higher-tier subcontractor to whom the waiver relates shall be considered as having been required to make available cost or pricing data for purposes of 15.804-2(a)(1)(iii). Consequently, award of any lower-tier subcontract expected to exceed $100,000 requires the submission of certified cost or pricing data unless exempt or waived under this subsection 15.804-3. [50 FR 1741, Jan. 11, 1985; 51 FR 2650, Jan. 17, 1986; 53 FR 10829, April 1, 1988] Next time, go here http://wisblawg.law.wisc.edu/2006/11/historical-cfr-now-available-on-heinonline/
  22. Signing Contractor Employees' Timecards

    Start with saying something about it in COR appointment letters. What may a COR sign in his or her capacity as a COR? Receipt of services? Inspection reports? Acceptance of services?
  23. Fixed Price Level of Effort

    I attended a dinner a couple of years ago with some retired DOD senior contracting officials and program managers who had gone to work for big contractors. They told me that it's hard to do business with some of today's contracting officers, because they don't know enough and are not confident in the answers they give and in their responses to proposals. As one put it, "It's hard to do business with people who don't know much." That, of course, was anecdotal and unscientific information.
  24. Ummm, not everyone agreed with that. First, that applies only to publicly owned businesses. Second, there has always been an ethic of corporate responsibility, more or less. But the market is the market, and in order to survive you have to lead it or go where it leads. It no longer leads to career employment followed by a good pension. Everyone is so on their own. What I told our kids was to start a business and be your own boss. Don't work in a cube. They took that advice. They work very hard. They're not rich, at least not yet. They want things they can't afford, at least not yet. But they're happy. They've got four devoted grandparent childcare specialists, three great-grandparents, five dogs, two sheep, and a number of chickens. A couple of weekends ago we drove up the road and saw a group of trees by the river in which we counted 48 bald eagles. Is America a great country, or what? If I could teach a high school class it would be "How to start and maintain your own business."
  25. Signing Contractor Employees' Timecards

    Oh. My. God. Tell the COR, in writing, to stop signing the timecards. Immediately..Send a copy of that direction to the COR's boss. Notify the contractor, in writing, that government personnel will no longer sign its employees' timecards.